YS v R

[2010] NSWCCA 98

New South Wales
Court of Criminal Appeal

CITATION:	YS v R [2010] NSWCCA 98
HEARING DATE(S):	29 March 2010
JUDGMENT DATE:	13 May 2010
JUDGMENT OF:	McClellan CJatCL at 1; Howie J at 2; Rothman J at 3
DECISION:	(i) Application for leave to appeal be granted; (ii) Appeal be dismissed.

CATCHWORDS:	CRIMINAL LAW – sentence appeal – aggravated break and enter commit serious indictable offence – mental condition – young person – totality – no identifiable or manifest error – appeal dismissed
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Mental Health Act 2007
CATEGORY:	Principal judgment
CASES CITED:	HAN, Zhi Qiang v R [2009] NSWCCA 300 House v The King [1936] HCA 40; (1936) 55 CLR 499 KT v R (2008) 182 A Crim R 471 Mill v R [1988] HCA 70; (1988) 166 CLR 59 MJ v R, CPD v R [2010] NSWCCA 52 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 R v Aem; R v Kem; R v MM [2002] NSWCCA 58 R v AD [2005] NSWCCA 208 R v AN [2005] NSWCCA 239 R v Bus (NSWCCA, Hunt CJ at CL, Grove and Allen JJ, 3 November 1995, unreported) R v Engert (1995) 84 A Crim R 67 R v GDP (1991) 53 A Crim R 112 R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Holder [1983] 3 NSWLR 245 R v Israil [2002] NSWCCA 255 R v Letteri (NSWCCA, 18 March 1992, unreported) R v LNT [2005] NSWCCA 307 R v Pham & Ly (1991) 55 A Crim R 128 R v Shillingsworth [2003] NSWCCA 272 R v WKR (1993) 32 NSWLR 447
PARTIES:	YS (Applicant) Regina (Respondent
FILE NUMBER(S):	CCA 2008/20481
COUNSEL:	H Cox (Applicant) S Dowling (Respondent)
SOLICITORS:	Aboriginal Legal Service (Applicant) Office of the Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/20481
LOWER COURT JUDICIAL OFFICER:	Berman DCJ
LOWER COURT DATE OF DECISION:	29/05/2009

2008/20481

MCCLELLAN CJ at CL
HOWIE J
ROTHMAN J

13 MAY 2010

YS v R

Judgment

1 McCLELLAN CJ at CL: I agree with Rothman J.

2 HOWIE J: I agree with Rothman J.

3 ROTHMAN J: The applicant, YS, who was aged 16 at the time that he committed this offence, seeks leave to appeal (and if leave be granted, appeals) the sentence imposed upon him by his Honour Judge Berman SC in the District Court. The applicant had pleaded guilty to aggravated break enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act 1900. The serious indictable offence was sexual assault (of which there were a number) and the circumstances of aggravation were the deprivation of liberty of the victim.

4 The applicant was sentenced to a term of imprisonment of 8 years, commencing 4 November 2008, including a non-parole period of 5 years, expiring on 3 November 2013. The applicant was already serving a sentence at the time that this sentence was imposed, and that fact gave rise, in his Honour’s view, to the special circumstances on the basis of which the non-parole period was shortened, albeit only slightly. Because the applicant was aged 16 at the time of the commission of the offence, s 11 of the Children (Criminal Proceedings) Act 1987 prohibits the publication of the applicant’s name, or any matter that would identify him. It is unnecessary, in order to deal with the issues in this appeal properly, for the Court to identify the victim, who was, at the time of the offence, in her mid-20’s, and I will not do so.

5 The only ground upon which the applicant seeks leave to appeal, and upon which the appeal is based, is that the sentence imposed upon him “was manifestly excessive in that his Honour failed to properly reflect the applicant’s youth at the time of the commission of the offence, mental illness and totality in the sentence imposed”.

Circumstances of the offence

6 By agreement, a Statement of Facts was tendered to the District Court and was the basis upon which his Honour sentenced the applicant. His Honour summarised the facts relating to the commission of that offence largely from those agreed facts, with some minor alterations.

7 Those agreed facts are relevantly in the following terms:

“On Sunday the 3rd of November 2002 the complainant, [name withheld] was in bed at her home address being [address withheld]. At the time she was alone.

About 9:10pm the complainant heard her bedroom door open at first thinking it was her uncle, [name withheld]. When she looked up, she saw the accused, [YS] standing in the door way holding a cigarette lighter which was lit close to his face.

The complainant said _, ‘Who’s that?’ The accused ignored the question and closed the bedroom door and walked towards the bed. Once at the bed the accused pushed the complainant’s head back onto the pillow and lay on top of her. At the time the complainant had the doona pulled up over her body.

The complainant attempted to push the accused off her by pushing his shoulders with both her hands. Whilst doing this the complainant repeated the words, ‘Who are you? Who are you?’

The accused said ‘Shhhh’ and began to kiss the complainant on the cheeks, neck and mouth. Whilst kissing the complainant he pushed his tongue into the complainant’s mouth before licking her face.

The complainant continued to try and push the accused away from her by pushing him in the chest. The accused said, ‘Do you want to get hurt?’ The complainant said, ‘No’ and fearing she would be hurt stopped trying to push the accused away.

The accused rolled off the top of the complainant and lay to her right hand side. He pulled the doona off the complainant and said, ‘Shhhh be quiet’ as the complainant was crying.

The accused used one hand to push the complainant near her collar bone holding her onto the bed whilst using his other hand to rub her vagina and breast over the top of her clothing.

Whilst the accused was touching the complainant she repeated, ‘Why are you doing this? Who are you?’ All the accused said was, ‘Shhhh.’

This continued for a number of minutes before the accused pushed the singlet top up underneath the complainants chin. The complainant was not wearing a bra.

The accused began to kiss and lick both the complainant’s breasts as well as kissing her on the mouth. The complainant continued to cry whilst lying on her back still in her bed.

The complainant attempted to get the accused to stop by saying, ‘My uncle will be back home soon.’ The accused ignored this comment however he kept looking out the bedroom window which looks out onto the street.

The accused pulled down the complainant’s underpants to her ankles before moving to the end of the bed and kneeling at the complainant’s feet. The accused pushed the complainants legs open, knelt between her legs, placing one finger inside her vagina.

The accused moved his finger around inside her vagina for a number of minutes. The accused moved his finger in and out of the complainant’s vagina in a rough manner causing her to feel pain. The complainant said, ‘Ouch’ upon hearing this, the accused stopped and removed his finger from inside the complainant’s vagina.

During the incident the complainant told the accused that she was menstruating hoping this would stop the accused from assaulting her further.

The accused placed his face near the complainant’s vagina and started to lick her vagina a number of times before placing his tongue inside her vagina. This lasted for a couple of minutes.

After a period of time the accused got up, leaned over the foot of the bed and unzipped the front zipper of his pants. The accused walked around to the side of the bed where the complainant was still lying.

The accused pulled the complainant by her hair so that she was kneeling up. The accused said, ‘Suck my dick.’ The complainant said, ‘No, I can’t’ The accused said, ‘Do you want to get hurt, go on then’.

The accused pulled his erect penis out of his pants, grabbed the back of the complainant’s head and pulled her face towards his groin area. The accused said, ‘Here it is.’

The complainant opened her mouth and the accused placed his penis inside. The accused held the back of the complainant head by the hair and moved her head back and forth.

The complainant kept her mouth open but did not suck on the penis of the accused causing him to remove his penis from her mouth and say; ‘Put a bit of effort into it.’

The accused continued to hold the complainant by the hair and placed his penis back inside her mouth. He continually forced the complainant’s head back and forth whilst thrusting his penis into the back of her throat causing the complainant to struggle to breath [sic]. The complainant began to choke and cough causing the accused to remove his penis from the complainant’s mouth without ejaculating.

The accused said, ‘Can you do it just one more time?’ The complainant said, ‘No I can’t’ The accused said, ‘OK’ and then placed his penis back inside his pants and zipping up his trousers.

The accused pushed the complainant back onto the bed so that she was lying on the bed. The accused lay on top of her and rubbed his body up and down the complainant pushing his groin area up against her vagina. Whilst doing this the accused asked the complainant how old she was.

The complainant pulled her pants up from around her ankles whilst the accused grabbed the back of her hair and pushed her off the bed and led her into the kitchen area of the house.

There were no lights switched on in the kitchen and told her to return to bed as he was leaving. The accused grabbed the complainant at the back of the head by her hair and led her back to her bedroom.

Once in the bedroom the complainant turned on her bedside lamp and looked at the accused for a few seconds. The accused pushed the complainant’s head down towards the floor, turned the lamp off and said; ‘Keep your head down.’

The complainant got back into her bed before the accused grabbed the doona and attempted to cover the complainant with it. The accused said, ‘I’m going now.’ The complainant was still crying so the accused leaned over and gave her a cuddle.

The accused ran out the bedroom door, through the kitchen and out the back door towards the side of the house. The complainant followed the accused and shut the back door locking it immediately.”

By reason of another offence, the police were able to match the DNA of the accused and the DNA obtained from the sexual assault kit in relation to the offence to which this appeal relates.

Subjective circumstances

8 As already stated, the applicant was, at the date of the offence, 16 years of age. He was the eldest child in a family of 6 children of Aboriginal descent. The family broke down when he was approximately 16 years of age and the applicant went to live with his father. He had commenced drug use at the age of 12, being marijuana and ecstasy, and had started drinking alcohol from 15 years of age.

9 The applicant had significant problems at school, attended Bass Hill High School and Cardiff High School and was because of those problems, placed in an Aboriginal Hostel in Newcastle. He was excluded from that Hostel because of truancy. He had worked as a bricklayers’ labourer and had, initially, significant football skills, having played in junior football and for Australia in the under 19’s. His transition to senior football was interrupted and ceased because of his escalating drug problem.

10 The applicant was first diagnosed with a mental illness at the age of 18, at which time he was reportedly suffering a psychotic disorder with catatonic features. His symptoms included auditory hallucination and he displayed psychomotor retardation. He presented on other occasions with similar psychotic symptoms and has been admitted to hospitals under the Mental Health Act 2007 (Schedule 2). The psychiatrists noted that the applicant was very difficult to interview.

11 The opinion of each of the psychiatrist and psychologist was consistent. It was extremely difficult for them to obtain any information from the applicant, who, rarely, if at all, made eye contact and answered in one-to-two-word answers. It may be best summarised by the comment of Dr Westmore in the following terms:

“He [the applicant] is obviously a young person with many and significant social, psychological and psychiatric problems. He will need a careful follow-up on his release back to the community and hopefully the Justice Health Service will arrange for his care to be continued by a community mental health service.”

12 Apart from these issues, the applicant has a significant criminal history, in circumstances where all of his recorded criminal activity occurred after the offence to which this appeal against sentence relates. That criminal history includes robbery, resist police, steal property, break enter and steal and a number of breaches of suspended sentences. At the time that the applicant was sentenced by the District Court, he was serving a sentence, the non-parole period of which expired on 3 November 2008, and his Honour commenced the current sentence from 4 November 2008.

The remarks of the sentencing judge

13 The three major issues which the applicant raised in this appeal are each issues that were taken into account by his Honour, the sentencing judge, and of which his Honour made specific mention. His Honour’s remarks were commendably short and, as is clear from this appeal and its basis, his Honour dealt with each and all of the relevant issues and no irrelevant issues. His Honour reduced the sentence to be imposed by “about 10%” to reflect a late plea of guilty and recognised that the applicant was not a person on whom a sentence should be imposed that reflected “a full measure of general deterrence”.

14 His Honour found that the mental illness would make the applicant’s time in custody more difficult and that the applicant’s mental condition did not play a factor in the offence for which he was to be sentenced. Further, his Honour held that, although the Court could deal with the applicant as a child, his Honour considered it entirely inappropriate, given the consequence as to the maximum term that such treatment would entail. His Honour imposed a sentence in a manner that was wholly cumulative on the prior offences, for which he was already serving a term of imprisonment. His Honour considered that there remained, notwithstanding that the sentence should not reflect a full measure of general deterrence, a very significant need for personal deterrence of the applicant.

15 I reiterate that no criticism is made of the manner in which his Honour has expressed the principles to be applied, nor any failure to consider any appropriate sentence. Nor is there any criticism or challenge of any finding of fact.

Young offender and mental illness: principles

16 It is necessary to deal with each of the principles relating to mental illness and to youth and then the combination of the two. This Court has stated on a number of occasions that a court sentencing an offender who suffers from a significant mental disability may give less weight to general deterrence: R v Letteri (NSWCCA, 18 March 1992, unreported); R v Engert (1995) 84 A Crim R 67; R v Israil [2002] NSWCCA 255; R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111; (1999) 46 NSWLR 346; R v AN [2005] NSWCCA 239. In R v Henry, supra, the Court summarised the principle in the following way:

“[253] The relevant principle as stated in R v Letteri by Badgery-Parker J, in a passage adopted by Gleeson CJ in R v Engert (at 14) is as follows:


‘… that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.’

[254] The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.”

17 Notwithstanding the foregoing, in some circumstances the existence of a mental disorder or severe intellectual handicap may heighten the necessity for personal deterrence. This will arise where, for example, a lack of understanding of the inherent culpability of the act itself may require the offender to understand its wrongfulness from the imposition of the penalty itself. This latter situation is rare and usually confined to persons who pose a continuing threat to the safety of the community.

18 Over and above the issues associated with sentencing an offender who is suffering from a mental disorder or severe intellectual handicap, the applicant, in this appeal, raises the issues associated with the applicant’s youth. I reiterate that the sentencing judge expressly dealt with each of these issues.

19 The commencement point for the sentencing of a minor are the terms of the Children (Criminal Proceedings) Act. Section 6 of that Act provides:

“ 6 Principles relating to exercise of functions under Act
A person or body that has functions under this Act is to exercise those functions having regard to the following principles:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,
(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,
(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,
(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.”

20 While his Honour did not, in terms, expressly refer to the aforementioned Act, or the terms of s 6 thereof, his Honour summarised its effect and dealt with the issue of whether the applicant should be dealt with as a child under the provisions of that Act. It is unnecessary to recite legislation in imposing a sentence, and sometimes counterproductive so to do, as long as the principles required by any statute are applied.

21 The principles embodied in s 6, recited above, have been the subject of much authority in this Court: see, inter alia, R v GDP (1991) 53 A Crim R 112; R v Bus (NSWCCA, Hunt CJ at CL, Grove and Allen JJ, 3 November 1995, unreported); R v Pham & Ly (1991) 55 A Crim R 128; R v WKR (1993) 32 NSWLR 447; R v Aem; R v Kem; R v MM [2002] NSWCCA 58; R v AD [2005] NSWCCA 208; R v AN [2005] NSWCCA 239, R v LNT [2005] NSWCCA 307; KT v R (2008) 182 A Crim R 471. Most recently this Court considered the issues in MJ v R, CPD v R [2010] NSWCCA 52, in which the Court said:

“[38] Whether an offender is still a child or no longer a child for the purposes of the Act, an offender’s youth is a relevant sentencing factor. Usually in the sentencing of a young offender greater emphasis should be placed on providing an opportunity for rehabilitation and less emphasis on general deterrence and retribution. However, as McClellan CJ at CL stated in KT at 578 [25]:-


‘The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity.’

[39] The present offence was one in which the applicants had conducted themselves in a way in which adults might have conducted themselves and was a crime of violence and of considerable gravity and, consequently, it was necessary for sentences to give some effect to the sentencing purposes of general deterrence and retribution.” (Per James J, with whom McClellan CJ at CL and I agreed.)

22 I reiterate that the violence of the offence, of itself, does not necessarily establish that the juvenile was acting as an adult and there may be aspects of the offence in question, even when violent, that disclose an immaturity associated with youth. The assessment must be one of maturity and conduct, not only the degree of violence and the gravity of the offence, which are factors to be weighed in that assessment.

23 In the present case, the applicant, similarly to the situation that arose in R v AN, supra, relies on both mental illness and youth. Of course, in R v AN, the offender was 13 years of age, as distinct from the applicant in this case, who was 16 at the time of the offence. As the Court said in R v AN, supra:

“[46] The considerations that apply in determining the significance to be given to general deterrence when sentencing a child are not the same as those which apply when sentencing a person who suffers from a mental abnormality. In the former case the issue is one of weighing the need for general deterrence as against the need to promote the rehabilitation of the child. In the latter case the issue is whether the offender is a suitable subject for general deterrence and, if so, to what degree having regard to the severity of the mental abnormality and its connection with the offence committed. I do not believe that the weight to be given to general deterrence in dealing with a child suffering from a mental disability can be determined simply on the basis of applying only the relevant considerations applicable to a child or only the relevant considerations applicable to a person suffering from a mental disability. …” (Per Howie J, with whom James J and I agreed.)

24 In this case, the sentencing judge took account of the applicant’s youth and, quite separately, took account of his mental or psychiatric issues, although, in the latter case, remarked that they did not play a part in the commission of the offence. Nevertheless, they play a part in the determination of an appropriate sentence. The part played by mental illness is set out above, but also affects the conditions under which incarceration will occur.

25 The sentencing judge dealt with the sentence in accordance with law, pursuant to the provisions of s 18(1) of the Children (Criminal Proceedings) Act. Under that provision (unlike s 17, which applies to serious children’s indictable offences), there is a discretion in the sentencing court to deal with the matter in accordance with law or pursuant to the special provisions relating to the Children’s Court.

26 The facts giving rise to this offence could have been the subject of prosecution under s 61J of the Crimes Act, aggravated sexual intercourse, the aggravation being the break and enter. Instead, quite properly, the applicant has been charged under s 112(2) of the Crimes Act, as a consequence of which the discretion arises. No criticism is made, or could be made, of his Honour’s exercise of discretion to deal with the matter in accordance with law.

Consideration

27 The imposition of a sentence is reviewable in this Court, if leave be granted, for identifiable or manifest error. No identifiable error is suggested. Rather, the applicant challenges the exercise of the sentencing judge’s discretion as disclosing manifest error. Such error occurs when it is not apparent how a primary judge has fallen into error but, the result is, upon the facts found, unreasonable or plainly unjust, whereupon an appellate court may infer a failure properly to exercise the discretion reposed in the primary judge: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, per Dixon, Evatt and McTiernan JJ. Often, in this Court, reference is made to statistics for the purpose of establishing that the sentence imposed was outside the range of sentences available and, therefore, manifestly in error.

28 The submissions on behalf of the applicant in relation to these issues contains the following passage:

“67. The statistics maintained by the Judicial Commission with respect to the offence contrary to s112(2) consist of a cohort of three hundred and twenty-seven cases. Of those, seventy per cent or two hundred and twenty-eight received prison sentences (not to be served by way of periodic detention). Of those, where a term of imprisonment was imposed (taking into account consecutive and non-consecutive terms), of a cohort of two hundred and twenty-eight, a sentence of eight years is in the top five per cent of all sentences imposed for this offence. The non-parole period of five years was in the top six per cent of all non-parole periods or fixed terms imposed.

68. On the basis of the statistics for this offence, it is submitted that the sentence was at the very top of the range for all sentences imposed under the section, being in the top five per cent for each category.”

29 The foregoing submission suffers from the error, often committed, that it is the statistics that determine “the very top of the range for all sentences imposed” under a particular section. It is the legislature that determines the very top of the range, being the maximum penalty, and in this case the maximum penalty is 20 years’ imprisonment. The applicant was sentenced to 8 years’ imprisonment, with a non-parole period of 5 years. I confirm my comments in HAN, Zhi Qiang v R [2009] NSWCCA 300 (with which Howie J agreed):

“[39] It is in the context of determining an appropriate range, that reliance is often placed upon statistics. The difficulty with reliance upon statistics is that an overly strict reliance on the range of sentences previously imposed will be a self-fulfilling limitation, which may bear no relationship to the maximum sentence or the criminality of the conduct.”

30 In the same judgment, Campbell JA said:

“[2] Sentences imposed on other people for crimes that bear some similarity to the crime in question can legitimately be looked at as part of the process of a judge fixing a sentence. But in themselves they will not inform the judge of the range of sentences that would properly be open in a correct application of sentencing principles. It is the sentencing principles themselves that it is the duty of the judge to apply. They include taking account of the maximum penalty that Parliament has prescribed for the offence in question, and how the criminality of the particular mode of committing the offence that is being sentenced for compares to the criminality of the various possible ways in which a contravention of the particular prohibition that creates the offence could occur.

[3] Statistics about the sentences that have been imposed for a particular offence can be of some assistance in informing the judge about the range of sentences that have actually been imposed for that offence. But the use of such statistics is limited. Part of the reason why that is so is because consideration of the range of sentences actually imposed is at best a check that the judge is correctly applying the sentencing principles. Part is because the statistics leach out many of the objective facts and all of the subjective circumstances that must be taken into account in a sentencing decision. Part is because the limited number of sentences that make up the sentences summarised by the statistics do not necessarily cover the full range of circumstances in which that particular crime can be committed. This list does not purport to be exhaustive.”

31 The applicant submits that, in terms of the objective seriousness of the offence committed, it is not a worst case. The applicant, so it is submitted, was not armed with an offensive weapon or instrument; nor was he in company. There was no intention to inflict actual bodily harm; nor was any such actual bodily harm inflicted. To that can be added that, on the facts as presented, it seems that the offence was unplanned and spontaneous. But the fact that worse factual circumstances can be imagined, does not mean that the offence, as committed, is not one of the most serious of the kind contemplated by the provision.

32 As is conceded in the applicant’s submissions, only one other case which this Court has dealt with related to circumstances where the Crown relied upon sexual intercourse without consent as being the serious indictable offence for the purposes of a contravention of s 112(2) of the Crimes Act. That case was R v Shillingsworth [2003] NSWCCA 272.

33 In Shillingsworth, supra, the sentence imposed at first instance was one of 4 years’ imprisonment for the non-parole period, the remainder of the term being an additional 3 years. There was an appeal to the Court by the offender, which appeal was rejected. The applicant, in comparing the sentence imposed upon him, with that imposed in Shillingsworth, points out that the applicant’s sentence is 1 year heavier, at both non-parole and head sentence level. Further, it is said that the conduct of the applicant was less culpable, because there was not, in the applicant’s case, penile/vaginal penetration. In the applicant’s case, there was digital penetration of the vagina and penile penetration of the mouth. Moreover, there were a number of acts of sexual intercourse or sexual assault, acts of indecency and indecent assault.

34 As the sentencing judge remarks, a young person, indeed a person of any age, is entitled to feel safe when they retire to bed. It is bad enough that their feeling of security is breached by a break and enter. The trauma that would be suffered by a woman who is raped, in circumstances where she has retired to bed, and a stranger (unknown to the victim, and who otherwise does not know the victim) breaks in to the premises and rapes her, would take years from which to recover, if a full recovery were ever possible.

35 The offence committed by the applicant is a most serious offence and is within the worst category of offences. That is not to say that there could not be worse. The mere fact that Shillingsworth was sentenced to a lesser sentence of imprisonment than the applicant does not disclose manifest error. The maximum sentence that could have been imposed was 20 years’ imprisonment. The sentence imposed was 8 years’ imprisonment as a head sentence, with a non-parole period of 5 years. Even in the circumstances of the applicant’s youth and his psychiatric issues, this sentence is not manifestly excessive.

36 It is not sufficient, for manifest error to be displayed, that this Court might have, or another judge has, in similar circumstances imposed a different sentence. The foregoing deals with the length of the sentence, but not the issue of totality.

37 The sentencing judge imposed the sentence in a manner that made it fully cumulative with the sentence (or the non-parole period thereof) under which the applicant was serving imprisonment at the time of his arrest. As a consequence, the effect on the applicant was to backdate the sentence, from the time that the sentence was imposed, to the date that his imprisonment first related solely to the offence for which he was to be sentenced. The sentence was backdated approximately 6 months. The sentence that he was serving prior thereto was a sentence for two counts of robbery in company and one count of aggravated enter dwelling with intent, knowing people were there, for which he was sentenced to a non-parole period of 1 year and 3 months.

38 As a consequence, the applicant will have served, assuming he is released when first eligible for parole, a period of 6 years and 3 months for two counts of robbery in company, one count of aggravated enter dwelling with intent and one count of aggravated break and enter and commit serious indictable offence, namely sexual assault. I do not consider that such a total sentence is inappropriate for the totality of the criminal conduct involved: R v Holder [1983] 3 NSWLR 245; Mill v R [1988] HCA 70; (1988) 166 CLR 59; Pearce v R [1998] HCA 57; (1998) 194 CLR 610.

39 In this case, as has been stated, the criminal conduct for which the applicant was sentenced was criminal conduct that occurred well before the offence for which the earlier sentence was being served. Nevertheless, the sentence imposed, taken together with the non-parole period for the sentence that was already being served, is not an inappropriate reflection of the total criminality of the crimes committed. The sentence imposed by the District Court does not give rise to an identifiable or manifest error that is capable of being corrected.

40 I propose that the Court make the following orders:

(i) Application for leave to appeal be granted;

(ii) Appeal be dismissed.

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