Amacha v R, R v Amacha

The verdict of the jury requires the court to consider the circumstances of the counts of sexual intercourse without consent on the basis of the evidence of the complainant. On the evidence of the complainant the acts of the offender were without consent of the complainant and that the offender knew that the complainant was not consenting."

Count 2 15 The sentencing judge dealt with the circumstances of count 2 as follows: "Her evidence in respect to count 2 of the indictment presented on 29 May 2008 was that after she woke and saw the offender lying next to her she wanted to get a drink or a glass of water. The complainant said that she actually got out of bed to get the glass of water. She then went back to the bed. She could not remember any part of any conversation which took place between she and the offender.

The next thing that she remembers is that she wanted to go to the bathroom and that the offender followed her to the bathroom. She stated in her evidence that the offender would not let her go by herself. She said he started to get aggressive and would not let her go to the bathroom alone. She said he would not let her close the door and that he was watching her going to the bathroom. She said she attempted to close the door but he forced the door open. She said he pushed the door open and would not let her close the door. She said he kept asking her to go back to bed and to stay in the bed. She said she was nervous and she was starting to get scared.

The complainant, who is a transsexual, stated that she was scared anything could happen and she tried not to provoke the offender. She said she was just scared and she went back into the bed.

The next thing she could remember occurring was that the offender asked her for oral sex, whereupon she said, 'No', as she was feeling sick. The complainant said that the offender then asked her to 'suck his cock' and he would then leave. After that she said she agreed to perform oral sex so that he could leave and that she did perform oral sex. She said that the offender said to her to suck his cock 'till I come'. She could not recall how long such oral sex occurred." 16 The sentencing judge directed himself to the Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A and the need to assess the objective seriousness of the offence in sentencing the offender and considering the standard non-parole period. His Honour said: "I have taken into account the circumstances that the offence occurred in the home of the complainant. I have also taken into account the prior criminal history of the offender. The offender does have a prior criminal history, mainly concerning possessing prohibited substances, but has also been convicted of offences for contravening domestic violence orders and has also been convicted of an offence in December 2002 assault occasioning actual bodily harm resulting in imprisonment for twelve months which was suspended on him entering into a bond pursuant to s 12 of the Crimes Act Civil Procedure Act [sic: Crimes (Sentencing Procedure) Act ] for a period of good behaviour for a period of twelve months.

Taking into account the circumstances that the complainant has no real recollection of how the offender came to enter into the apartment and no real recollection of how the offender came to be lying next to her in the bed when she became aware of his presence there, I do consider that the offence the subject of count 2 of the indictment does not fall within the mid range of objective seriousness for offences of this kind. I also have taken into account the fact that in relation to this offence, whilst there was evidence form the complainant that she was scared and that the offender was becoming aggressive, there was no real threat as at that stage by the offender on her evidence. The evidence clearly was that she was becoming scared because of his behaviour but that she was persuaded by the offender to get back into bed after she left the bathroom.

I consider that the appropriate sentence for this offence would be a period of imprisonment of six years. The period of imprisonment I consider should commence on 29 September 2007, the date on which he was arrested by the police. The offender has been in custody since that date."

Count 4 17 The judge then turned to this count being the second of the three charges of sexual intercourse without consent contrary to the Crimes Act, s 61I. His Honour said: "… The evidence of the complainant was that prior to the act occurring the complainant said the offender was speaking in a strong voice and in her opinion it was like he was really angry, and that he then asked the complainant to suck his cock again and that when he told her to suck his cock he also said, 'Make me come or I'll hit you.' The complainant said that on this occasion she said, 'No'. She said she was not going to do it. She said she was scared. The complainant said that he then said, 'Suck me or I'll break your face.' She said she then stated that she would do it. She said she was scared and she said that the offender was getting aggressive, so she just followed his order and proceeded to have oral sex with the offender.

It is clear that on that evidence of the complainant, which I consider the jury has accepted rather than the evidence of the offender in the circumstances in which any oral sex took place, there was a threat of the use of violence. I would also consider that I would again have to take into account the criminal history of the offender as shown in ex A and, again, I consider that, whilst there were no convictions for offences of sexual intercourse without consent, his prior criminal history does not entitle him to any consideration of leniency. The further threat of violence requires this court to again consider that as an added circumstance to that as referred to in count 2. The offence also occurred in the apartment of the complainant.

I would consider that the appropriate sentence in relation to count 2 [sic: 4] would be a period of imprisonment of six and a half years, which period of imprisonment should also commence from 29 September 2007." 18 The judge explained that in relation to counts 2 and 4 he did not set a non-parole period: "… as I consider that the count 7 does fall within the mid range of objective seriousness and the standard non-parole period must apply in relation to that offence." 19 Thus it can be taken that his Honour was implicitly of the view that the objective seriousness of the offence in counts 2 and 4 was below mid-range.

Count 5 20 The judge approached this offence by reference once again to the evidence of the complainant in the light of the conflict of evidence resolved by the jury's finding of guilt. His Honour thus described the events as follows: "Following the sexual intercourse the subject of count 4 the complainant said that the next thing she could remember was that the offender kept saying, 'I want to fuck you'. She said after that it was her recollection that a fight broke out. She said it started when he hit her on the face. She said it was around the left eye and she was hit with his fist. She was also hit in her upper body.

Photographs which were before the court clearly show abrasions and injuries to the face of the complainant. There is also a photograph which does appear to show some abrasion or injury around the neck, it would appear, of the complainant.

She was, according to the complainant, hit in the face several times. She said she started screaming for help, whereupon the offender said, 'Shut up or I'll break your face'. She said she struggled with him and that she was thrown around, pushed around, and that she could recall being pushed near the wall around the bed and that there was a constant struggle proceeding. She said she was pushed towards a long rectangular mirror and that mirror broke after she hit it. She said at that stage that she did try to punch him and that she was able to punch or kick him and that she could recall making contact with him and that was to his upper part of his body, and that she could also recall scratching his face. She further stated that at one point the offender was strangling her and pushing her on the floor and that he was strangling her at one point.

The assault was a serious assault. It happened in the premises or home or apartment of the complainant and on the evidence of the complainant, which was accepted by the jury, was unprovoked by her.

I consider the appropriate sentence for this assault to be a period of imprisonment of six years and again, because of the standard non-parole period which I consider is applicable in relation to count 7, I consider that it is inappropriate to impose a non-parole period."

Count 7 21 This was the third charge of sexual intercourse without consent. The offence occurred after the struggle and assault that constituted count 5. The primary judge said the following: "… The complainant in her evidence said that as she told the offender to leave after he told her in the course of the struggle the subject of count 5 to stop screaming. He told her to stop screaming, he would get changed and he would go. He said he would go and he was going to put [sic] his clothes. The complainant said that as at that point she was standing on the bed and was crying and frightened. She said he asked her not to call the police, and she said that she just asked him to leave.

The complainant then said that the offender refused to go and at that time she was just crying. She said he was saying things like, 'I don't like Lebanese boys,' that is that she, the complainant, did not like Lebanese boys, 'stuff like that'. She said she said that she had nothing against Lebanese people and that the offender kept trying to say that he liked her. She said she was just crying and then the offender asked her to 'suck his cock' again before he go [sic], and she said, 'No, no. I just want you to leave. Please leave, please.' The complainant said that he then made her again have oral sex with him. She said he gain told her to, 'Suck me off or I break your face,' and that she was scared and followed his order again.

She said that when she stopped performing oral sex upon him there was another fight which broke out between them. She said that when this act of intercourse occurred he, the offender, was standing by the door so that in her opinion she was unable to get out. She said at the time she was kneeling on the floor near the door. She said she kicked the door and he threw another fist at her face. Soon thereafter she heard a knock on the door, and an indication that it was the police at the door.

In these circumstances there had been a threat of violence in the home of the complainant. The threat was after an actual malicious assault the subject of count 5. The criminal history is also a matter which is to be taken into account. On the evidence, I am unable to find that the offence was motivated by hatred or prejudice against any group of people.

It has been put that the threat of violence could not be considered as an aggravating offence as it forms as an essential ingredient of the offence and that the jury have found that the offence occurred without the consent of the complainant. I accept the submission of the Crown that a threat of violence is not the only way in which consent is forthcoming, although it is commonly, that is, the use of violence or the threat of violence, is commonly a characteristic of offences of this kind.

The circumstances of this offence I consider differ from those of counts 2 and 4. They differ in relation to the circumstances in which the threat was made. It occurred after the assault the subject of count 5 and the complainant was obviously in a state of real fear. The offender had been told by the complainant to leave, to leave there and then, he refused and uttered a threat to her unless sexual intercourse took place. Whilst the act was one of fellatio and the complainant was transsexual, that does not detract from the seriousness of the offence. I consider that the offence does fall within the mid range of seriousness for offences of this type, and the standard non-parole period ought apply.

I consider that the appropriate sentence for the offence would be a period of imprisonment of nine years which is to date again I would consider from 29 September 2007, and a standard non-parole period of seven years would apply as from that date."

Accumulation and concurrence 22 The judge considered that all the sentences for the Paddington offences should commence on 29 September 2007 and be served concurrently, all occurring on the same date and in the same premises.

The Miranda offences 23 The two counts in respect of which Mr Amacha pleaded guilty were that on 5 May 2007 at Miranda he had sexual intercourse with a woman without consent contrary to the Crimes Act, s 61I. 24 An offence of assault was to be taken into account on the form 1 in respect of the first count. 25 The evidence in relation to the two offences was contained in a statement of agreed facts and in the evidence of the complainant. 26 The relevant evidence stated by the sentencing judge was as follows: "The agreed facts show that the offence occurred on 5 May 2007. The complainant and the offender met at the Zanzibar Nightclub in King Street, Newtown. The agreed facts show that the complainant and a number of her friends attended the nightclub on that date and that whilst at the nightclub she had a conversation with the offender, who she had not met before. The offender provided the complainant with his mobile telephone number and shortly after that the complainant and her friends left the nightclub. In the course of driving a friend home she was contacted by the offender and they arranged to meet. The complainant then picked up, according to the agreed facts, the offender and drove to Canterbury where they purchased some cannabis and then drove to the complainant's premises at Miranda.

The cannabis was consumed and the offender, after consumption, went into the complainant's bedroom and got onto the bed. The agreed facts state that the offender made the complainant put his penis in her mouth and said, 'Suck me off. Suck me off.' The agreed facts state that the offender was not physically violent with the complainant but his attitude led her to conclude that she had to perform oral sex on him. The agreed facts also state that the complainant started to cry after the offender stated to her that he wanted 'to fuck' her. When she started to cry the offender said, 'Well, just suck my cock. Suck me off and make me come.' The complainant, according to the agreed facts, carried out oral sex on the offender whilst they were lying on the bed and at the time she carried out such act was still crying.

She drove the [offender] to his address at Canterbury and before she left - or before he left the vehicle another act of sexual intercourse occurred in the nature of fellatio.

The conduct which occurred in the complainant's home is the subject of count 1 of the indictment. The conduct of the offender in the complainant's vehicle is in the subject of count 2."

27 While at the complainant's home the offender slapped the complainant across the face with the back of his hand. This was the offence of assault on the form 1. 28 The primary judge recognised that the plea of guilty meant that the standard non-parole period did not strictly apply though it remained relevant as a reference point. 29 As to the first Miranda count, the judge considered that the sentence should be six years, reduced by 25 per cent for the early plea. In considering the non-parole period, the judge first had regard to the Crimes (Sentencing Procedure) Act, s 44(2) requiring a non-parole period of three quarters of the term unless there were special circumstances. The judge refused to find special circumstances, saying: "It has been put that there are special circumstances and I accept on the evidence before me that there is need for the offender to undergo rehabilitation in the type referred to by Dr Westmore in his psychological report upon his release on parole. I accept that he now realises the need for rehabilitation. It is submitted that he has remorse for his victims, but on the evidence before me he may now have some remorse for the victims but it does not appear to the court that he accepts responsibility for his actions. He may have acknowledged that loss or damage has been caused to the victim TE, and in her statement and in her evidence before this court there has been considerable injury which has occurred to her.

I do not consider that there should be a discount for the special circumstances on the basis of rehabilitation which must occur in the future."

30 After some discussion with the Crown there was a minor adjustment of half a month in the setting of a non-parole period of three years and four months. The sentence was accumulated with the Paddington offences by starting it on 28 July 2011. His Honour explained this as follows: "I should also add that I have partly accumulated the sentence because if the sentence was totally subsumed within the non-parole period of count 5 then in effect no punishment whatsoever would occur in relation to this offence to which he has pleaded guilty." 31 As to the second Miranda count, the judge said the following: "In respect of count 2, this is again a serious offence whilst the offender and the - [sic] went with the complainant, and the complainant took the offender to his home, he demanded sexual intercourse before he left the car.

Again, there will require to be some accumulation because of the circumstances of that offence and I do not consider that it ought to be concurrent. I would consider that that offence would be reflected by a commencement date of 28 September 2011. Again, I would consider that the appropriate sentence would be six years, that again there be a full discount for the plea of guilty of 25 per cent, and that the appropriate non-parole period would be three years and four months." 32 As a total body of sentences, the offender was sentenced to nine years from 29 September 2007 and expiring on 28 September 2016, with a non-parole period of seven years and four months expiring on 27 January 2015.

Subjective circumstances of the offender 33 The subjective circumstances of the offender were put before the judge in a Probation and Parole Service pre-sentence report dated 25 July 2008 and a report of a psychiatrist, Dr Westmore dated 20 November 2008. The Crown summarised these matters in submissions in this Court in a way that was not controversial and can be stated as follows. 34 The offender was born on 26 June 1980 and at the time of sentence was aged 28 years. He was 26 years old when he committed the Miranda offences and 27 years old when he committed the Paddington offences. He is the oldest of three sons whose parents are of Lebanese background. He reported that he had a poor relationship with his father but a good relationship with his mother. 35 The offender attended a private school where he claimed to have been bullied. He completed his Higher School Certificate and entered university were he commenced an economics degree which he discontinued after one year. He later completed an apprenticeship in spray painting and obtained a forklift driver's licence. He reported that he had worked in numerous positions, often on a temporary basis. At the time of his arrest the respondent had recently commenced a position as a high reach forklift driver. 36 The offender told the author of the pre-sentence report, Mr West, that he felt pressured by his parents to succeed academically and that he had reacted by mixing with delinquent youths outside of school. He also reported that he felt under pressure to find a suitable girlfriend of the same religious and ethnic background as himself, and that this had presented difficulties as his family were members of a relatively small religious group within the Australian Lebanese community. The offender reported that he felt that he had failed to meet his parents' expectations. He also reported that he had had problematic relations with women in the past and that he had unresolved issues in that area of his life. 37 The offender reported that he started smoking cannabis when he was 15 years of age and he admitted to past use of amphetamines, ecstasy and cocaine. He stated that he had been drinking alcohol to excess on occasions for about ten years and said that he was affected by alcohol at the time of meeting the complainant, SAK. 38 The offender told Dr Westmore that he had been suffering from "major depression and anxiety" since 2002 for which he had taken prescribed medication. 39 The offender maintained his innocence to Mr West and to Dr Westmore and stated that any sexual activity between himself and the complainant (SAK) was consensual. He did however, express regret for any adverse effect his actions might have had on the complainant. 40 The offender had a number of prior criminal convictions including convictions in the Children's Court for dishonesty offences, robbery offences and offences of possessing prohibited drugs. As an adult he had numerous convictions for offences of possessing prohibited drugs and driving licence related offences in respect of which he had been fined or received a suspended sentence. In 2000 he had been ordered to serve home detention for driving in a dangerous manner and for driving whilst his licence was suspended. He was subsequently in breach of the home detention order and served a fixed term of imprisonment. He served further terms of imprisonment in 2005 for offences of driving in a dangerous manner and driving whilst disqualified from holding a licence. In 2002 the offender had been convicted of a number of offences of contravening an apprehended domestic violence order. He had been fined and had received suspended sentences in relation to those offences.

The sentencing judge's imposition of fixed terms 41 The submissions were unanimous that the imposition of fixed terms in respect of counts 2 and 4 of the Paddington offences was not open. The submissions were correct. As recognised in SGJ v R; Ku v R [2008] NSWCCA 258 at [76]-[78] (per Kirby J, Hodgson JA and Hislop J concurring), the terms of s 45(1) of the Crimes (Sentencing Procedure) Act remove the discretion to decline to set a non-parole period in relation to offences for which there is a standard non-parole period. These sentences therefore cannot stand. 42 The real issue, however, is whether under the Criminal Appeal Act 1912 (NSW), s 6(3) some lesser sentence is warranted in law or whether the Crown is correct and the sentences are manifestly inadequate.

Mr Amacha's application for leave to appeal 43 It is convenient first to deal with the grounds of complaint of Mr Amacha. 44 As to the overall complaint that the totality of the sentences was unduly harsh, I disagree. There were two occasions, with respect to two persons. It can be accepted that at least the Paddington offences occurred in the context of the consumption of a large quantity of alcohol. Nevertheless, the head sentence of nine years derived as it was from count 7 reflected an appropriate sentencing response to a violent and degrading attack on the complainant. The total accumulated non-parole period reflected the effect of the Miranda offences. An accumulated period in gaol by reference to the non-parole period of seven years and four months was not in any way disproportionate to the criminality of the two bodies of conduct. 45 The submission that the sentence for count 7 was unduly harsh should be rejected. The prospects of success of this submission rested within the success of the allied submission that the judge erred in coming to the view that the offence in count 7 came within the mid-range (and thus attracted the standard non-parole period of seven years); and that the judge took a legally extraneous matter into account in assessing the objective seriousness of the offence, being the criminal convictions of the offender. 46 As to the complaint about taking into account prior criminal convictions, the judge dealt with this issue in dealing with both counts 2 and 4 when addressing objective seriousness. Likewise in relation to count 7, the criminal history appears to have been taken up by the judge in his assessment of the objective seriousness of the offence. This was an error. Unless (as was not the case) the offender was at large in the community by way of conditional liberty, the criminal history of the offender is not relevant to the assessment of the objective seriousness of the offence: R v Shankley [2003] NSWCCA 253 at [29]-[32] (per Howie J, Greg James J and Smart AJ concurring). 47 Notwithstanding that error, the evaluative conclusion that the offence committed represented by count 7 was of mid-range seriousness was clearly open. Taking its place in the events in the complainant's apartment as they unfolded that morning, this was a brutal and degrading attack. For all the reasons otherwise stated by his Honour the evaluative assessment of mid-range seriousness was open, and it should not be disturbed. 48 In that light, the sentence for count 7 cannot be seen otherwise than as appropriate. 49 Complaint was made that the judge erred in imposing sentences of four and a half years with non-parole periods of three years four months for the two Miranda offences. It was submitted that in all the circumstances these were excessive. 50 I disagree. Whilst the offender did not exhibit the violence and degrading brutality that he did against the Paddington complainant, he nevertheless behaved in a threatening way to engender fear in the complainant to force himself upon her. They were offences with an objective seriousness below mid-range. Thus the seven year standard non-parole period did not apply. Placed in the context of the standard non-parole period and the maximum sentence, the sentences imposed reflected the less objectively serious character of the offences. Within that framework the sentences were entirely reasonable and were appropriate. 51 It was submitted that the judge failed to take into account the principle of totality. This is in essence a complaint as to the overall effect of the sentences. I will deal with this when dealing with the Crown's complaint about the asserted failure to follow Pearce v The Queen. 52 Complaint was also made that the judge did not find special circumstances arising out of the accumulation of sentences. As Hunt CJ at CL explained in Simpson (1992) 61 A Crim R 58 at 60-61 (with which reasons Grove J and Sharp J agreed) "special circumstances" has a wide meaning and may exist in the appropriate case where a court is imposing a series of cumulative sentences so that it can ensure a proper proportion between the total minimum term and the effective additional term. Counsel for Mr Amacha did not put this complaint to the sentencing judge. Nevertheless, for present purposes I will assume that his Honour should have given some consideration to the question of the overall accumulation, especially of the non-parole periods. I will deal with this when dealing with the Crown's "Pearce" complaint. 53 Complaint was made that the judge did not take alcohol into account as a mitigating factor. There can be little doubt that the judge was aware that alcohol appeared to play a part in the Paddington offences. The complainant was heavily intoxicated. The offender had also been drinking, as the judge recorded. The judge did not advert to this as a mitigating factor - understandably so. Whilst the consumption of alcohol may be an explanation for the physically and sexually aggressive and violent behaviour of the offender it did not excuse it or mitigate it. This was not the kind of offence for which a lack of planning or conscious pre-meditation brought about by alcohol might be relevant. The offences involved violent and brutal physical and sexual aggression. I reject the submission that the seriousness of the attack should be discounted because, as the submissions seemed to put, of its place in an alcoholic haze borne of a night's excessive drinking. 54 Finally, complaint was made that the primary judge had failed to disclose (other than impermissibly taking it into account in assessing the objective seriousness of the offence) how he took into account the offender's prior criminal history. It can be accepted that this failure was an error to disclose how a matter under the Crimes (Sentencing Procedure) Act, s 21A(2)(d) was taken into account: R v Walker [2005] NSWCCA 109 at [32]. I will deal with this below.

The Crown appeal 55 Before turning to what I have referred to as the "Pearce" ground in the Crown appeal and the question of totality of the sentences, their proportionality with the offences and whether the sentences were excessive or inadequate, I will address the complaint by the Crown that the judge failed to determine, or adequately determine, the objective seriousness of each offence contrary to s 61I. 56 It was incumbent on the judge to assess the objective seriousness of the offence for the purpose of the application of the Crimes (Sentencing Procedure) Act, ss 54A, 54B and Part 4 Division 1A after a trial, and as a reference point, if after a plea of guilty. 57 The judge was mindful of the standard non-parole period being a reference point for the Miranda offences. 58 In relation to the offence represented by count 2 of the Paddington offences the judge expressly concluded that the offence did not fall within the mid range of objective seriousness for offences of this kind. The judge is criticised for not being more elaborate in his view as to how far below the mid range the offence fell. His Honour gave a fixed term of six years. If this was equated to the non-parole period it fell only slightly below mid range; if it equated (wrongly) to the head sentence, it was materially below mid range. Taking into account the comments of the judge I would infer that the latter was the case. On this view, whilst the judge should have made a somewhat more elaborate identification as to how far below the mid-range the offence fell it can be confidently taken that he was of the view that the offence was to some degree below the mid range given that he thought it appropriate (wrongly) to fix a head sentence of imprisonment of six years, one year below the standard non-parole period. Further, in relation to count 4, although there was no specific finding as to where that offence fell in the range of objective seriousness, his Honour was of the view that count 4 was objectively more serious than count 2. Further, it can be taken that the sentence imposed (implicitly, once again, wrongly, a head sentence) of six years and six months (six months below the standard non-parole period) reflected that his Honour was of the view that the sentence was (like count 2) to some degree below the mid-range. 59 Likewise, in relation to the Miranda offences it would appear from what his Honour did that he considered they fell below the mid range of objective seriousness. Again, he failed to make an express assessment as an important starting point to determining the appropriate sentence in relation to the offence for which there was (here as a reference point) a standard non-parole period. 60 It is worth repeating what James J (with whom McClellan CJ at CL and Adams J agreed) said in Smith v R [2009] NSWCCA 17 at [24]: "… a judge sentencing for an offence for which there is a standard non-parole period should make an unambiguous finding about whether in his judgment the offence is in the middle of the range or above or below the middle of the range";

and see also R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338 at [4] and [39].

The Crown's complaint as to the failure to take into account the assault on the form 1 in relation to count 1 of the Miranda offences 61 It was submitted that each of the Miranda offences disclosed a similar level of criminality and the equivalence of the sentences was indicative of a failure to take the form 1 offence (the assault by a slap to the face) into account. 62 This argument faces difficulty given his Honour expressly stated that he had taken the form 1 offence into account in relation to count 1. 63 I do not think that it can be concluded from the equivalence of the sentences that his Honour did not in fact take it into account despite what he said. Views as to the appropriate weight to be given to it in the context of what took place at the complainant's home and in her car could reasonably vary in degrees easily able to subsume any apparent effect of the common assault on the form 1. 64 This ground of the Crown appeal fails.

The "Pearce" ground, totality, and proportionality of the sentence and whether it was inadequate or excessive 65 The Crown complains about the inadequate accumulation, in particular of the Paddington offences. It was submitted that the concurrence of the sentences meant that the three offences represented by counts 2, 4 and 5 went effectively unpunished. It was said that this arose by a failure to apply the principles in Pearce that required his Honour to fix an appropriate sentence for each offence and then to consider questions of accumulation, concurrence and totality. 66 This, it was said, led to a manifestly inadequate sentence. 67 The four Paddington offences were said to be distinct and serious in their criminality and ought to have attracted a degree of partial accumulation. It was submitted that this was particularly the case in relation to the offence of maliciously inflicting actual bodily harm with intent to have sexual intercourse because of the different nature of the conduct with a significantly higher maximum penalty. 68 The essential consideration is the need for the sentences as a whole to reflect adequately and proportionately in their totality and structure the criminality of the offences. 69 It was also submitted that the limited level of accumulation of the Miranda sentences produced an overall inadequate sentence. 70 Contrary to these submissions, it was submitted on behalf of Mr Amacha that the overall sentence was manifestly excessive and that a proper approach to the principle of totality and proportionality would see a lowering of the sentences, in particular the non-parole periods by the recognition of special circumstances. 71 I am unable to accept that these sentences were excessive. I have already indicated my unwillingness to interfere with the judge's view of the mid-range seriousness of the offence represented by count 7. That offence and the standard non-parole period that comes with it form the base or structure of the sentencing. 72 It is necessary, also, to recognise that the other three offences on the morning of 29 September were serious in their own right. Even if, as appears to be the case, the judge took the view that the offences represented by counts 2 and 4 were to a degree below the mid-range of objective seriousness, they were not trivial - far from it. Likewise, his Honour thought that the malicious infliction of bodily harm was also sufficiently serious to warrant six years imprisonment. 73 Whilst the common source of all the offences in the events of the early hours of the morning can be recognised, in my view, the judge erred in not accumulating to some degree the four offences. Not to do so failed to have any regard to the separate criminality involved in the different aspects of the whole violent and brutal episode.

The question of re-sentencing 74 The imposition of fixed terms where non-parole periods and head sentences were required and the absence of accumulation requires a re-sentencing of Mr Amacha. Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) means that this Court should not take into account "double jeopardy" as discussed in R v JW [2010] NSWCCA 49 at [141] to impose a lesser sentence than is appropriate. 75 In re-sentencing Mr Amacha I would not diverge from the elements of the sentences imposed by his Honour (save necessarily from the inappropriate fixed terms). I do so because his Honour had the advantage of the trial and the evidence led and was in a better position to assess the evidence as to gravity and effect on the Paddington complainant. Further, in my view, the sentencing response of the judge in relation to the individual sentences and the overall sentence was appropriate. 76 I would take into account the subjective circumstances revealed by the two reports to which I have referred. 77 His criminal record disentitles him to any leniency. 78 I would also take into account Mr Amacha's affidavit dated 19 April 2010 read on the appeal, in particular his attempts at alcohol and drug rehabilitation and the fact that he is in protective custody without ready access to some facilities. 79 As to count 2 which I would assess as below mid-range seriousness, I would impose a head sentence of six years with a non-parole period of four years six months. 80 As to count 4, I would assess it also as less than mid-range seriousness but somewhat more serious than count 2. I would impose a head sentence of six and a half years with a non-parole period of four years and ten months. I will deal with accumulation and concurrence (of this and the other offence) later. 81 As to count 5, I would impose a head sentence of six years and a non-parole period of four and a half years. Though a non-parole period is not required, in all the circumstances, one should be set. 82 As to count 7, I would not interfere with the judge's sentence. 83 I would not interfere with the sentences for the two Miranda offences. 84 As to the questions of accumulation and concurrence, I agree with the submissions of the Crown that a degree of accumulation was warranted within the Paddington offences in order that the separate and overall criminality be reflected in an appropriate sentence. 85 I agree with the sentencing judge's approach to accumulation of the Miranda offences. 86 Whilst the structure of the sentences should be amended, as I have already said, I am of the view that the overall sentencing response of the learned sentencing judge was proportionate and reflective of the criminality of the offender. It was not excessive. The Paddington offences were violent and degrading, and called for a response of imprisonment of the kind imposed on the offender. Nor was it inadequate. The seven years four months non-parole period with an additional term of one year eight months was not a light sentence. 87 Reading the psychiatric report and given Mr Amacha's age there must be a significant prospect of rehabilitation, if he ceases the kind of use of alcohol and drugs that appear to that have been influential in his behaviour in the past. His affidavit as to the rehabilitative steps he has taken in prison point to the real possibility of success in that regard. 88 In this context, it would be wrong to increase Mr Amacha's effective non-parole period by reason of its restructuring and accumulation. To do so would be likely to fulfil no useful sentencing objective, whilst risking an effect on Mr Amacha's rehabilitation prospects by provoking a sense of grievance that, for the sake of correctness in the structural form of the sentence, he has been ordered to remain in prison for a period longer than was otherwise an appropriate overall sentencing response. 89 In these circumstances, I would find special circumstances and I would adjust the non-parole period for count 7 and I would bring forward the commencement dates of the Miranda sentence such that Mr Amacha remains eligible for parole on 27 January 2015. 90 The sentences that I would impose in lieu of those imposed by the sentencing judge are as follows: 91 As to the sentences arising from the trial:

(a) As to count 2, imprisonment for six years to commence on 29 September 2007 and to expire on 28 September 2013 with a non-parole period of four years six months to expire on 28 March 2012.

(b) As to count 4, imprisonment for six years six months to commence on 29 September 2007 and to expire on 28 March 2014, with a non-parole period of four years ten months to expire on 28 July 2012.

(c) As to count 5, imprisonment for six years to commence on 29 December 2007 and to expire on 28 December 2013 with a non-parole period of four years six months to expire on 28 June 2012.

(d) As to count 7, imprisonment for nine years to commence on 29 March 2008 and to expire on 28 March 2017, with a non-parole period of six years eight months to expire on 28 November 2014.

(e) As to count 1, imprisonment for four years and six months to commence on 28 August 2011 and to expire on 27 February 2016 with a non-parole period of three years four months to expire on 27 December 2014.

(f) As to count 2, imprisonment for four years six months to commence on 28 September 2011 and to expire on 27 March 2016 with a non-parole period of three years four months to expire on 27 January 2015.

(a) grant leave to the applicant to appeal against sentence;

(d) set aside the sentences imposed by the District Court on 1 May 2009 and in lieu thereof impose sentences as above. 93 GROVE J: I agree with Allsop P. 94 HISLOP J: I agree with Allsop P.

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