Wilmot v R

[2007] NSWCCA 30

Reported Decision: 169 A CRIM R 280

New South Wales

Court of Criminal Appeal

CITATION:	Wilmot v R [2007] NSWCCA 30 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9/2/07
JUDGMENT DATE:	1 March 2007
JUDGMENT OF:	Sully J at 1; Bell J at 2; Buddin J at 51
DECISION:	1. Grant leave to appeal; 2. Dismiss the appeal
CATCHWORDS:	Sentence - serious offences of violence - protection of the community - non-parole period in excess of statutory proportion
LEGISLATION CITED:	Crimes Act 1900 Crimes (Administration of Sentences) Regulation 2001 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
CASES CITED:	Elyard v R [2006] NSWCCA 43 Markarian v Regina [2005] NSWCCA 264; (2005) 79 ALJR 1048 Mill v R (1988) 166 CLR 59 Power v R (1973) 131 CLR 623 R v Rowe (1996) 89 A Crim R 467 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Veen (No. 2) (1988) 164 CLR 465
PARTIES:	Wayne Lindsay Wilmot (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/2277
COUNSEL:	DT Spears (Applicant) J Girdham (Crown)
SOLICITORS:	Patricia White (Applicant) S Kavanagh (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/0187
LOWER COURT JUDICIAL OFFICER:	Marien DCJ

2006/2277 CCAP

SULLY J
BELL J
BUDDIN J

Thursday 1 March 2007

Wayne Lindsay Wilmot v Regina

Judgment

1 SULLY J: I agree with Bell J.

2 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court at Campbelltown on 27 February 2006. The applicant pleaded guilty on indictment to one count of detaining SM with intent to hold her for advantage, contrary to s 90A of the Crimes Act 1900 (as it then stood) and three counts of sexual intercourse with SM without her consent contrary to s 61I of the Crimes Act. Two offences of indecent assault were taken into account on a Form 1 in sentencing the applicant for the s 90A offence.

3 The offences occurred on 2 June 1998. The applicant was charged with them in December 2004 after a sample of his DNA was matched to a sample taken from clothing worn by SM at the time of the assault. At the date of sentence the applicant was serving sentences imposed on him by Graham DCJ in June 2000 for offences of detaining for advantage and malicious wounding. These offences were committed on 29 June 1998, three weeks after the commission of the offences that are the subject of the present application.

4 The applicant was sentenced to a non-parole period of nine years with a balance of term of three years for the kidnapping offence. Concurrent fixed term sentences of imprisonment for six years were imposed in relation to the three sexual offences. These sentences were accumulated on the non-parole period specified by Graham DCJ. They commenced on 28 June 2005. The non-parole period for the kidnapping offence will expire on 27 June 2014. The balance of term will expire on 27 June 2017. By the time the applicant is eligible for release on parole he will have continuously served 16 years in custody. The effective aggregate sentence is 19 years.

The facts

5 The complainant SM was aged 19 years at the date of the offences. She was working as an assistant stationmaster at the Leightonfield Railway Station. At a little after 6.00 am on 2 June 1998 she was the sole member of staff at the station. She saw the applicant who was sitting on a bench on the platform. She had seen the applicant sitting outside the Stationmaster’s office at about 5.40AM the previous day.

6 SM let herself in to the Stationmaster’s office. The applicant followed her into the office and commenced to assault her by striking her around the face. SM ended up on the floor. The applicant tied her hands behind her back and put a cloth over her mouth. SM protested that she was unable to breathe and the applicant took the cloth from her mouth and put it over her eyes, blindfolding her. He undid her clothing and exposed her breasts. SM begged, “don’t hurt me, take the money”. He fondled her breasts. This activity was the subject of the first indecent assault on the Form 1. Next the applicant removed SM’s skirt and underpants and he lay on her and kissed her on the face and mouth. She clenched her legs together. The applicant kissed and sucked her breasts and nipples. This activity was the subject of the second indecent assault on the Form 1. The applicant forced SM’s legs apart and then began to lick and penetrate her vagina with his tongue. He moved his hips towards SM’s face so that his lower body was on her face. She again complained that she was unable to breathe. These facts gave rise to the first count of sexual intercourse without consent.

7 The applicant next put his erect penis into SM’s mouth while at the same time he licked and penetrated her vagina with his tongue. Both forms of intercourse continued for a few minutes until the applicant withdrew his penis from SM’s mouth and ejaculated over her face; rubbing and smearing his semen over her lips and face. The act of forcing his penis into her mouth gave rise to the second offence of sexual intercourse without consent and the further episode of cunnilingus gave rise to the third offence of sexual intercourse without consent.

8 At the conclusion of these further sexual assaults SM asked, “what are you going to do. Please don’t hurt me. Just let me go”. The applicant replied, “don’t worry I haven’t hurt you yet. I won’t hurt you. Look I’m sorry this wasn’t supposed to happen”. He then dressed her. He asked about the hold-up alarm button and SM endeavoured to reassure him that she would not sound the alarm saying, “what’s the point it’s done now”. He instructed her to sit up. He then tightened the rope by which her hands were still tied behind her back. He started to pull her legs towards him so as to bind her legs to her wrists. SM told him that no one would come to the office until 11.30 AM. The applicant was satisfied with this assurance and did not proceed to further bind her. After the applicant left the office SM waited for a few minutes and then managed to get her hands free and remove the blindfold. She made contact with the police and she was later conveyed to Liverpool Hospital where she was examined. SM’s physical injuries were reported as (i) tender reddened area on the left buttock 3 cms to 5 cms; .5cm laceration over the bridge of the nose; (iii) duck egg bruise on the left upper forehead, 3cms diameter with a small abrasion in the centre; (iv) red linear mark near the watchband on the left wrist 2 cms in diameter; and (v) tenderness on the left base of the spine.

9 The clothing worn by SM at the time of the attack was submitted for analysis. Semen was detected on her shirt and a section of the stain was kept.

10 In August 2001 a sample of the applicant’s DNA was received by the Division of Analytical Laboratories. Some time between 3 and 29 March 2004 further DNA testing was completed on the stain removed from SM’s shirt and ultimately the applicant was identified as a suspect for the offence. On 8 December 2004 the applicant was charged with these offences.

The applicant’s criminal history

11 The applicant was aged 32 years at the date of sentence. He had a lengthy criminal history, which included convictions for offences of a similar nature. In 1990 he was sentenced by Wood J for offences of kidnapping, robbery and four counts of sexual intercourse without consent. These offences arose out of the abduction and sexual assault of Janine Balding in 1988. Janine Balding was abducted as she was walking towards her car, which was parked near the Sutherland Railway Station. She was later murdered. The applicant was not charged with her murder. His liability for the sexual assault offences arose from his participation in a joint criminal enterprise, it was not contended that he had himself had sexual intercourse with her. The applicant was aged 15 years at the date of these offences. He was on probation at the time. He had previously been dealt with in the Children’s Court for offences including stealing, sexual assault and indecent assault.

12 Wood J sentenced the applicant to a minimum term of seven years’ imprisonment with an additional term of two years and four months.

13 The applicant was released on parole on 16 October 1996.

14 Sometime in mid-1997 the applicant assaulted a woman in a park. She knew him by sight and reported the incident to the police. A few weeks after this, on 14 August 1997, the applicant robbed a woman who was walking alone at night on a public street. Both these offences were committed while the applicant was on parole.

15 The applicant was charged with the robbery offence on 6 October 1997 and released on bail. He was on bail at the date he committed the present offences. Four weeks after the kidnapping and sexual assault of SM the applicant assaulted a young woman in circumstances of some similarity: it was a weekday morning, the victim was about to get out of her car which she had parked near the Glenfield Railway Station, when the applicant lunged at her pushing her across the passenger seat. He got into the driver’s seat and there was a struggle between the two. During the course of a struggle the victim saw a knife on the dashboard, which had not been there previously. The victim managed to escape and raise the alarm. She sustained cuts to her hand. The applicant was sentenced for offences arising out of this incident (the Glenfield offences), and the earlier robbery, by Graham DCJ on 21 June 2000. His Honour took into account the assault on the woman in the park on a Form 1. The applicant was sentenced to terms, which in the aggregate, amounted to nine years and four months’ imprisonment with a non-parole period of seven years dating from 29 June 1998. The non-parole period had expired at the time the Judge came to deal with the applicant for the present offences.

The applicant’s case

16 The applicant did not give evidence at the sentence hearing. A report prepared by Yvonne Skinner, a psychiatrist, was tendered on this behalf, which included a history obtained from him. The applicant had an unfortunate childhood. His mother was an alcoholic, who had a succession of male partners, all of whom disliked the applicant. He had grown up without attachment to a constant male figure. He exhibited behavioural problems from early childhood. When he was aged five years he was made a ward of the Minister. He had been in trouble with the police from the age of 10 years and had been detained in a number of institutions including Reiby, Mount Penang, Yasmar and Cobham. The applicant told Dr Skinner that he had been drinking alcohol and smoking marijuana from the age of 11, although he denied having a serious problem with the abuse of alcohol.

17 Dr Skinner reported that the applicant had been diagnosed as suffering from a number of psychiatric conditions and that he had been treated with psychotropic medications. In her opinion, the applicant does not suffer from any mental illness. She believed that anti-psychotic medication had been prescribed in the past for management of his behavioural problems and that there was no warrant for psychotropic medication. She found no evidence of brain damage. In Dr Skinner’s opinion, the applicant has an underlying severe personality disorder with borderline and antisocial traits, arising from his background of emotional and physical abuse. She also considered that the applicant suffers from substance abuse and that this, in combination with the personality disorder, has influenced his offending behaviour. Dr Skinner described the applicant as articulate and able to give a coherent account. She assessed his intelligence as probably in the low-average range. His concentration and memory were good. She detected no evidence of cognitive difficulty.

18 Dr Skinner reported that the applicant had seen Dr Parmegiani, a psychiatrist, in 1995 and 1996 and that Dr Parmegiani considered the applicant suffered from a gross disturbance of his personality due to his traumatic childhood and adolescence. Dr Parmegiani recorded that the applicant complied with the regulations in the structured prison environment and that there was a risk of de-compensating on release, especially if there was a return to substance abuse.

19 Dr Skinner concluded her report as follows:

Mr Wilmot has been incarcerated for long periods. It seems that his personality has matured to some extent, as he has not been in trouble in the prison for at least three years. The medical records indicate that he has not been requesting medication as he had been during his previous incarceration, and there is no record of recent self-harming behaviours. However, on release from the structured environment of the prison, and with drugs available, it is likely that he will find it more difficult to cope. Supervision by the Probation and Parole Service should assist in his rehabilitation on release.

20 The applicant applied for admission to the CUBIT sex offenders’ program. In his application to enter the program he was required to answer a question that asked for his account of the persons who had been affected by his offences. He answered this question in this way:

Well in my case, all three women are victims, and also me because I have realised that I have a problem with women by attacking them. And also thinking of them in a sexual nature. So I am a victim of my past which has led me to be where I am today and trying to get help from my problems so there will be no more victims.

21 The Judge accepted that the applicant had a desire to deal with his offending behaviour. His Honour observed that it was instructive to consider the way the applicant regarded the effect of his behaviour, not only on others but on himself.

22 There was evidence that the applicant had undertaken a number of educational programs while in custody.

23 The Judge found that the applicant had expressed remorse for the offences.

The Judge’s findings

24 The Judge considered that there were chilling similarities between these offences and those for which the applicant had previously been sentenced. His Honour was satisfied beyond reasonable doubt that there was a high risk the applicant would re-offend upon release. For this reason, taking into account the applicant’s criminal record, the Judge accorded particular weight in determining the sentences to retribution, personal deterrence and the protection of the community. His Honour took into account that the offences were aggravated by (i) being committed while the applicant was on bail; (ii) SM was vulnerable by reason of her occupation; and (iii) SM had suffered substantial emotional harm as the result of the offences.

25 The Judge noted that the applicant entered pleas of guilty on the day the proceedings were listed for trial and he discounted the sentences in recognition of the utilitarian value of the pleas by a factor at the lower end of the range identified in R v Thomson and Houlton (2000) 49 NSWLR 383.

Ground one

The sentencing Judge erred in fact-finding as to the degree and cause of harm and injury suffered by the victim and the consequences of that finding in terms of s 21A(d) of the Crimes (Sentencing Procedure) Act 1999 and s 90A of the Crimes Act 1900

26 Section 90A has been repealed. The maximum penalty provided for the offence was 20 years’ imprisonment. The section made provision for the maximum penalty to be reduced to 14 years’ imprisonment in the event that it was proved to the satisfaction of the judge that the victim had been liberated without having sustained any substantial injury.

27 At the sentence hearing the Crown Prosecutor submitted that although the agreed facts upon which the sentence hearing was proceeding included that SM had suffered some injuries, these did not amount to “substantial injury” for the purposes of s 90A and accordingly that the maximum penalty for the offence was 14 years’ imprisonment. He informed the Judge that the Crown did not rely on the material in SM’s victim impact statement (which described the emotional harm that she had suffered) “to aggravate the offence to the 20 year, and accordingly we say 14 is the maximum penalty for this offence. It is of course a matter for your Honour” (10/02/06 at T 5.33-34).

28 The Crown Prosecutor invited the Judge to find that the offences were aggravated because SM had suffered substantial emotional harm:

s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

29 At the commencement of the sentence hearing the Crown Prosecutor foreshadowed that SM would read her victim impact statement to the court (a procedure authorised by s 30A of the Sentencing Procedure Act) and that it was his intention to tender the statement. Before SM read her statement the Judge raised the question of whether she should be made available for cross-examination (10/02/06 T 9.20-24). Counsel for the applicant did not require her. SM read her victim impact statement to the court.

30 The victim impact statement was tendered without objection. SM said that after the assault she had fallen into a deep, severe depression and that she had been barely able to sleep. Seven and a half years after the assault her sleeping habits had still not returned to normal: She was still taking medication to sleep and she had bad dreams about the attack. She had barely left her home for the first two and a half years after the assault. She had not been able to return to work and she had been medically retired at the age of 21. She described the diagnoses that she had been given by various doctors including psychiatrists as post-traumatic stress disorder, depression, anxiety, suicidal ideation, uncontrollable crying, fear of being alone and loss of self-esteem. She said that most of these symptoms continued to affect her. She had become socially isolated as the result of the offences. A relationship of seven years’ duration had ended as the result of the impact of the offences upon her and although she had formed a new relationship this too was subject to strain for the same reason.

31 After SM read her victim impact statement the Judge raised the question of the maximum penalty for the s 90A offence, informing the parties that in his opinion SM had suffered substantial injury.

32 The proceedings were adjourned to 27 February 2006, on which date the Judge again raised the question of the maximum penalty for the s 90A offence, noting that while the physical injuries suffered by SM may not have been serious, they were to be considered in the circumstances in which they were inflicted and that viewed in this way, they may constitute serious injury for the purpose of the section: R v Rowe (1996) 89 A Crim R 467 per Hunt CJ at CL at 472. The Judge sentenced the applicant for the

s 90A offence on the basis that the maximum penalty was 20 years’ imprisonment.

33 In written submissions counsel for the applicant contended that it had not been open to sentence the applicant on the basis that the offence was subject to the higher maximum in light of the Crown Prosecutor’s concession. On the hearing this aspect of the challenge was not pressed. The onus was on the defence to satisfy the Judge that SM had been liberated without substantial injury. This is a question of fact. The Judge was not bound by the parties’ submissions in determining it. Counsel was on notice that the Judge was not minded to find that SM had been liberated without substantial injury. Counsel was given every opportunity to deal with the issue.

34 Counsel for the applicant contended in written submissions that the finding of substantial emotional harm for the purposes of s 21A(2)(g) was not open because it was based on the contents of the victim impact statement, which was unsworn, untested and included material that would be inadmissible under the rules of evidence. This submission was not pressed on the hearing of the application and should be rejected. The victim impact statement was tendered without objection. No application was made that the law of evidence apply to the sentencing hearing under s 4(2) of the Evidence Act 1995. The Judge made clear his view that there was material before him including in the victim impact statement to establish that SM had suffered substantial emotional harm. He asked whether SM was to be made available for cross-examination should defence counsel wish it. Defence counsel handed up written submissions at the sentence hearing stating that the presence of the aggravating factor referred to in s 21A(2)(g) was not in dispute. There was material before the Judge upon which it was open to him to find that SM had suffered substantial emotional harm for the purposes of s 21A(2)(g), being harm that exceeded the emotional harm the Court would infer to have been suffered by any person who had been detained and sexually assaulted in the way that SM was.

35 It was not submitted on the hearing of the application that the Judge erred in finding that SM had suffered substantial injury and in applying the 20-year maximum penalty. The error was said to be the further finding that the offence was aggravated because SM had suffered substantial emotional harm. In counsel’s submission, the vice in the approach that his Honour adopted was that it involved double-counting.

36 The infliction of substantial injury is not an element of the offence created by s 90A, however, where the defence fail to establish the absence of the infliction of substantial injury to the victim, the higher maximum penalty applies. The maximum penalty for an offence is a measure of the objective seriousness of the offence and provides a yardstick by which the appropriate sentence is to be determined. In a case in which the defence fails to establish that the victim was liberated without substantial injury the offence will necessarily be assessed as of greater objective seriousness than a case in which the lesser penalty applies because the victim did not suffer any substantial injury. Physical injuries may constitute substantial injury for the purposes of s 90A taking into account the context in which they were sustained which, as in this case, may involve emotional harm. In Elyard v R [2006] NSWCCA 43 this Court held that a sentencing court must not take into account as an aggravating feature an inherent characteristic of the offence (Basten JA at [17]; Howie J at [40]). By analogous reasoning, it seems to me that where an offence under

s 90A is subject to the higher maximum penalty because the defence has failed to establish the absence of substantial injury to the victim it will be an error to find the offence aggravated by the fact that the victim suffered substantial injury or substantial emotional harm. In this case, although his Honour found each of the offences to be aggravated because SM suffered substantial emotional harm, the sentence imposed for the s 90A offence is not suggestive of double counting. I say this because the sentence may be thought moderate when one looks at the maximum penalty, his Honour’s factual findings and the purposes of punishment to which he gave weight. It was an objectively serious s 90A offence committed while the applicant was on bail for offences of violence committed against women. His Honour found the applicant was likely to re-offend and that the sentence should reflect retribution, personal deterrence and the protection of the community. The sentence imposed (after a modest discount for the plea) was less than two-thirds of the maximum sentence. To the extent that the finding of substantial emotional harm under s 21A(2)(g) constituted an error, it is not one that should lead this Court to intervene, since, in my opinion, no lesser sentence was warranted in law.

Ground two

The sentencing Judge failed to apply the totality principle in relation to the effect of accumulation between the subject sentence and the existing sentence the applicant was then serving that had been imposed by Judge Graham

37 Counsel submitted that the Judge erred in wholly accumulating the sentences for these offences on the expiration of the non-parole period imposed by Graham DCJ. The Judge adverted to the need to consider totality in the context of the earlier sentences imposed by Graham DCJ and in this respect his Honour referred to the statement of the principles in Mill v R (1988) 166 CLR 59. His Honour approached the matter on the basis that these offences were a separate and discrete course of offending and that the sentences should be accumulated on the non-parole period for the unrelated Glenfield offences. It was not submitted that this approach involved error in principle but rather that, in the result, the sentence was “crushing”. I will return to this challenge when dealing with ground five. I do not consider that ground two has been made good.

Ground three

The sentencing Judge erred in his use of the applicant’s criminal record as an aggravating feature

38 In written submissions the applicant’s counsel contended that the Judge erred in that the sentences were disproportionate to the seriousness of the offences and contained an element of preventative detention. This ground was not pressed on the hearing of the application.

39 There is no merit to this ground. His Honour took into account the applicant’s criminal history in deciding that weight was to be given to retribution, personal deterrence and the protection of the community. Such an approach was plainly open to him: R v Veen (No. 2) (1988) 164 CLR 465 at 477. His Honour was conscious of the need to ensure that the sentences were proportionate to the objective seriousness of the offences. He said so in terms (ROS 22.8).

Ground four

The sentencing Judge erred in his evaluation of the applicant’s rehabilitation or rather lack thereof

40 It is necessary to set out a passage from the Judge’s remarks on sentence in order to understand this ground. His Honour referred to a number of the findings made by Graham DCJ when sentencing the applicant for the Glenfield offences:

His Honour said that Dr Milton believed from his reading of the offender’s records, that the skilled care the offender had had over some seven or eight years during his imprisonment, had made no difference, and he believed that the offender was quite incapable of engaging in rehabilitation.
His Honour, however was not prepared to be as pessimistic in his assessment as Dr Milton, in relation to the offender’s prospects of rehabilitation. His Honour noted some signs which he said might properly be regarded as qualifying to some extent Dr Milton’s opinion. Those signs included an observation by the probation officer that the offender was emotionally settled at a particular time whilst in custody, and that he had a strong and supportive relationship with a young woman he met some three years earlier (ROS 16).
…
In sentencing the offender for the most serious offence before me, namely the detain for advantage offence, it is relevant to take into account, and I do so take into account, the sentence imposed by Judge Graham for the Glenfield matter which occurred some three weeks later. However, I am unable to find, as Judge Graham did, that there are some glimmers of prospects of rehabilitation, or some glimmers of hope in that regard. Nothing put before me, as to the relationship which was in existence at the time of the sentencing proceedings before Judge Graham, of the offender with a young lady, nothing has been put before me in these sentencing proceedings as to a continuation of that relationship, or of any positive effect of such a relationship. Also, and most importantly, it is to be remembered that in sentencing the offender Judge Graham was unaware of the commission of the offences on 2 June 1998 which are the offences before me today. Undoubtedly, had his Honour been aware of these offences, considerations which he would have given and did give to denunciation, personal deterrence, protection of the community, may have been given much greater weight than his Honour did. In my view, these factors that I have referred to warrant the imposition by me of a significantly longer sentence than the sentence imposed by Judge Graham for the detain for advantage offence (ROS 29-30).

41 Counsel for the applicant in written submissions contended that:

It is submitted that for the purpose of evaluating the offender’s prospects for rehabilitation his conduct is to be judged from time of offence including his behaviour in custody. It is acknowledged that the offender committed subsequent (in time) serious offences shortly after the commission of these offences and had difficulties in his first few years in custody. The applicant however points to his good behaviour over the last three years and in particular the work he has undertaken in relation to self-improvement by way of educational and attitudinal courses. In light of this and the report of Dr Skinner it is submitted that his Honour erred in finding that the offender was at high risk of re-offending and had “no glimmer” of prospects of rehabilitation.

42 In oral submissions counsel emphasised the applicant’s good progress over the three years prior to his sentencing, during which he appeared to have settled and to have been compliant within the prison environment. He had made efforts to improve himself and he had agreed to seek treatment for his sexually aberrant behaviour.

43 The contention advanced in the written submissions that an offender’s prospects of rehabilitation are to be evaluated by reference to his or her conduct from the time of the offence should be rejected. A judge is required to make any assessment of an offender’s prospects of rehabilitation on the whole of the material before him or her.

44 The applicant has a criminal history including for the commission of serious offences of violence against women. He has failed to comply with the conditions of parole and bail. He has an underlying severe personality disorder with borderline antisocial traits. His history of alcohol abuse may have influenced his criminal behaviour and he lacks insight into this condition. Dr Skinner considers that when he is out of the structured prison environment the applicant is likely to have difficulty in coping. It was open to the Judge to assess the applicant’s prospects of rehabilitation as he did.

Ground five

The sentences imposed are, individually and collectively, in all the circumstances, manifestly excessive

45 Each of the offences under s 61I was subject to a maximum penalty of 14 years’ imprisonment. For each such offence the applicant was sentenced to a fixed term of six years’ imprisonment. Each of these sentences was wholly subsumed by the sentence imposed for the s 90A offence. The challenge was not to the length of the individual sentences. The aggregate sentence of 19 years with a non-parole period of 16 years was submitted to be manifestly excessive. In the alternative, counsel submitted that the structure of the sentences demonstrated error: the non-parole period was too long and allowed too little time for the applicant to be at liberty subject to supervision.

46 The Judge found that there were no special circumstances that warranted a variation in the statutory proportion between the term of the sentence for the s 90A offence and the non-parole period. This sentence when taken with the sentences being served for the Glenfield offences is subject to an effective non-parole period in excess of 75 percent of the aggregate sentence. His Honour addressed the question of special circumstances for the purposes of s 44(2) immediately after discussing the sentences for the Glenfield offences and the principle of totality. However, his Honour did not discuss whether the fact of accumulation itself amounted to a special circumstance.

47 The non-parole period for the Glenfield offences had expired at the time of sentence. When he pronounced sentence on 27 February 2006 his Honour was aware that the applicant had been in custody since 28 June 1998. In my opinion, His Honour is not to be taken to have overlooked that the nine year non-parole period imposed for the s 90A offence would lead to the applicant serving at least 16 years in continuous custody before being eligible for release on parole.

48 The structure of the sentence is such that the effective non-parole period exceeds 75 per cent of the aggregate sentence. However, such is the length of the sentence that it remains that the applicant, if released to parole at the earliest time, will be subject to supervision for a period of three years. The scheme for the administration of parole orders contemplates that supervision will be for a period of up to three years from the date of release: cl 216 of the Crimes (Administration of Sentences) Regulation 2001 (albeit that in the case of a serious offender the Parole Authority has power while the parole order is in force to extend the period of supervision). Taking into account his Honour’s decision that retribution, personal deterrence and the protection of the community were to be given weight (ROS 21.7), I do not find that his Honour erred in fixing a non-parole representing such a high proportion of the aggregate sentence. The non-parole period is to be taken as representing the minimum period that his Honour assessed justice required the applicant to serve in custody: Power v R (1973) 131 CLR 623.

49 The sentence for the s 90A offence when wholly accumulated on the non-parole periods for the earlier offences was one of considerable severity. It was open to the Judge in the exercise of discretion to accord retribution, personal deterrence and the protection of the community the significant weight that he did. I am not persuaded that the sentences, or the structure of them, have produced a result that is unreasonable or plainly unjust: Markarian v Regina [2005] NSWCCA 264; (2005) 79 ALJR 1048.

50 For these reasons the orders that I propose are:

1. Grant leave to appeal;
2. Dismiss the appeal.

51 BUDDIN J: I agree with Bell J.

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