The applicant's subjective case and other aspects of the sentencing remarks
There was nothing in particular in the applicant's subjective case that is pertinent to the grounds of appeal except to note findings that were made and taken into account in the applicant's favour. Such matters are listed below in the consideration of Ground 2.
The judge also referred to the importance of deterrence (general and specific), denunciation and protection of the community in their application to sentencing for sexual offences of the present kind.
Special circumstances were found on the basis that it was the applicant's first time in custody and there was a need to ensure that he would be monitored for an extended period of time upon release given the adjustments he would need to make in relation to employment and that he might struggle with the separation from his children.
[2]
Ground 1 - error in application of the totality principle
Counsel contended in written submissions that the degree of "notional accumulation" of the indicative sentences was erroneous.
There is no controversy about the totality principle itself. Howie J explained its application in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:
" … [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
The principle applies just as much when an aggregate sentence is imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Of the principles relating to appellate review of aggregate sentencing collected in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the following are pertinent: [6]
"11. The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence.
12. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive.
13. A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures."
Citing Bell v R [2019] NSWCCA 251 at [62], the applicant accepted that "it cannot be known, nor was his Honour required to explain, whether the sentence for count 1 was accumulated upon the sentence for count 3, or vice versa, or whether his Honour looked at the two sentences and made an assessment of what was appropriate for the totality of the offending". [7]
It was, however, submitted that the degree of notional accumulation was erroneous for the following reasons: [8]
1. The offences were part of the same course of conduct in that they involved the same victim and occurred at approximately the same time.
2. Each offence was of brief duration.
3. There were no additional aggravating features as between the two counts.
4. The applicant bore the same level of moral culpability for each offence.
The applicant also relied upon the submissions made to the primary judge. His counsel had submitted that there should be concurrent sentences or, if there was to be any accumulation at all, there should be a "substantial measure of concurrency". The Crown agreed, although stating that it was a matter for the judge's discretion. It submitted, "there should be some perhaps very partial accumulation between sentence imposed for both offences to recognise the different sexual acts, but it's otherwise accepted that they're inextricably linked and part of the same course of conduct". [9]
The judge said: [10]
"In imposing sentence for the two offences I must of course have regard to the principles of totality. As the Crown conceded, the offences involved a single episode and the sentences to be imposed should therefore reflect a substantial degree of concurrency with a limited degree of accumulation." (Emphasis added)
[3]
Consideration
There are three difficulties with this ground of appeal.
The first is that the appeal is against the aggregate sentence and not the indicative sentences. It was noted in Vaughan v R [2020] NSWCCA 3 by Johnson J at [90]-[91] that indicative sentences are required for the purpose of understanding the components of the aggregate sentence in general terms but they have no practical operation. Further, while the principle of totality has operation, the principles of sentencing concerning accumulation and concurrency at general law have no application when an aggregate sentence is imposed. I agreed with Johnson J and added [11] that there is no actual accumulation of indicative sentences when an aggregate sentence is imposed. A sentencing judge simply determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending. This is the effect of what I had earlier stated in Bell v R. [12]
The fact that the sentencing judge in this case proceeded in that way in his assessment of the aggregate sentence is evident by the fact that it is impossible, just as it was in Vaughan v R, to describe an actual degree by which the two indicative sentences were notionally accumulated. A calculation can be made in relation to a notional accumulation of the head sentences, but it does not accommodate the same level of accumulation of the non-parole periods. (It does not need to.)
The applicant relied upon N Adams J having said in Kliendienst v R [2020] NSWCCA 98 at [84] that although transparency regarding the degree of accumulation and concurrence is not the same when an aggregate sentence is imposed, there is "some transparency" when the sentence is imposed for only two offences. "Transparency" in this context is taken to mean an ability to arithmetically calculate the extent of notional accumulation but, as indicated above, as well as in Kliendienst v R at [103], it is not always possible in a complete sense when non-parole periods need also be indicated. Even if it was completely possible, there is then the next difficulty.
The second difficulty is that the applicant's submissions assume the correctness of the individual sentences assessed and indicated for each offence. As noted above, one of the propositions relating to appellate review of an aggregate sentence listed in JM v R [13] was that "even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive. This was affirmed recently by Beech-Jones J in Lee v R [2020] NSWCCA 244 at [32]. Generally speaking, the same must apply if the indicative sentences are inadequate, at least where their sum equals or exceeds the aggregate.
Rather than making an assumption that the indicative sentences are correct, and then endeavouring to assess the extent by which there has been some notional accumulation, the critical question is another of the principles noted in JM v R, "whether the aggregate sentence reflects the totality of criminality involved". [14] That raises for determination under Ground 2 of the proposed appeal.
The third difficulty is the reliance upon the judge having said there would be a "substantial degree of concurrency with a limited degree of accumulation". The terms "substantial" and "limited" are relative and not amenable to precise quantification. The one thing that is clear is that at the time he uttered those words he must have known the aggregate sentence that he was just about to announce as well as the individual indicative sentences. The sentencing remarks were not delivered ex tempore; the judge had reserved for two months. It is inconceivable that his sentencing remarks delivered on the adjourned date were a series of unscripted thoughts that were uttered simultaneously as they occurred to him and then immediately forgotten before uttering the next.
Ground 1 fails.
[4]
Ground 2 - manifest excess
The applicant's written submissions raised the following matters in support of the proposition that the aggregate sentence was manifestly excessive: [15]
1. The absence of consent arose solely because of the complainant's lack of capacity to consent.
2. The applicant was sentenced on the basis that he was reckless, as opposed to actually knowing that the complainant lacked the capacity to consent.
3. The offences were not accompanied by any physical or psychological coercion. It was not disputed at trial that the complainant participated in the sexual intercourse.
4. There were no aggravating features.
5. The applicant had no prior convictions, was of otherwise good character and had good prospects of rehabilitation.
It was contended that the sentence was in respect of a single occasion of "gross error" in the applicant having sexual intercourse with an "adult female" who was "willing", but incapable of consenting because of her cognitive impairment, with the applicant reckless as to that fact. The offences were "brief". The applicant had reached middle age and had no prior criminal offences and so in that sense his conduct was completely aberrant.
The applicant maintained that the aggregate sentence was one that exceeded what was proportionate to the totality of criminality.
[5]
Consideration
A problematic aspect of the applicant's submissions, both written and oral, was the repeated references to the complainant being an adult who was a willing participant in the sexual intercourse with consent only vitiated by her cognitive impairment. During an exchange at the hearing, counsel acknowledged the difficulty in maintaining this contention and clarified that the point was more one of comparison with the range of circumstances of aggravation that may be encountered with offences against s 61J of the Crimes Act.
There is no merit in the original contention expressed as broadly as it was. Section 61J is the aggravated form of the offence in s 61I, namely sexual intercourse without consent, knowing that the other person is not consenting. The circumstances which may operate in aggravation are listed in s 61J(2)(a) to (i). They include, for example, the intentional or reckless infliction of actual bodily harm, the threatened infliction of such harm by means of an offensive weapon or instrument, and the threatened infliction of grievous bodily harm (s 61J(2)(a)-(c)). Aggravating circumstances that pertain to the personal circumstances of the victim are set out in the following paragraphs of s 61J(2):
(d) The alleged victim is under the age of 16 years, or
(e) The alleged victim is … under the authority of the alleged offender, or
(f) The alleged victim has a serious physical disability, or
(g) The alleged victim has a cognitive impairment.
In Bell v R there was a submission that the circumstance of aggravation of offences against s 66C(2) of sexual intercourse with a child above the age of 10 and under the age of 14 was not as serious as other circumstances of aggravation that could apply to that offence. The "circumstances of aggravation" for the purposes of s 66C were listed in s 66C(5) and they were largely the same as those listed in s 61J(2). It was held that "it was not self-evident that the circumstance of aggravation averred in the charges was necessarily less serious than others listed in s 66C(5)". [16] The same may be said in relation to s 61J(2).
The sentencing judge referred to and accepted a concession by the Crown that "the absence of consent in this case arises solely from the complainant's lack of capacity to provide that consent". However, he immediately added: [17]
"[T]he objective seriousness in this matter is increased because of the relatively significant intellectual impairment present in the complainant which … would have been apparent after even a short interaction with her."
His Honour referred to the expert evidence that 2-3% of the population have an intellectual disability. Within that group, 85% will have a mild intellectual disability and the balance have a moderate, severe or profound disability. The victim in this matter was in the "mild to moderate" range.
There is no challenge to the judge's assessment of objective seriousness being "just below the mid-range" for Count 3 and "at a slightly lower level" for Count 1. Factors he cited in support of that finding have been listed earlier. [18]
The judge summarised the evidence concerning the applicant's background and personal circumstances. Specific subjective matters that he said would be taken into account were the following. [19]
1. The applicant had facilitated the course of justice at the trial by cross-examining the complainant "carefully and sensitively". This was taken into account but was not something that "should attract a lot of weight".
2. There had been no prior offences and the applicant had generally been a law-abiding and worthwhile member of society.
3. The applicant had experienced difficulties in custody, including being on a limited association classification, although it had not been submitted that difficulties in custody should warrant an amelioration of sentence.
4. The applicant was remorseful in a limited respect.
5. There were "at least reasonable prospects of rehabilitation".
It is necessary to bear in mind that the maximum penalty prescribed for an offence against s 61J is 20 years and the standard non-parole period is 10 years. Here there were two offences committed in the course of one incident but each made an additional contribution to the totality of criminality. As observed previously, it is the aggregate sentence of 8 years that must be the focus of the appeal, regardless of the Goldilocks-type assessment that might be made of the indicative sentences being inadequate, excessive, or just right.
In summary, there was no challenge to the assessment of the objective seriousness of the offending; there was no entitlement to any discount that would apply if there had been pleas of guilty; and the applicant's subjective case warranted some, but not extensive, mitigation of penalty.
All these circumstances indicate that the aggregate sentence was one that was well open to be imposed in the exercise of the sentencing judge's discretion.
[6]
Orders
I propose the following orders:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.
WILSON J: I agree with the orders proposed by R A Hulme J, for the reasons his Honour has given.
Remarks on sentence [25]-[30]
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Decision last updated: 04 February 2021
Solicitors:
Matouk Joyner Lawyers
Solicitor for Public Prosecutions
File Number(s): 2018/86059
Decision under appeal Court or tribunal: District Court
Citation: [2020] NSWDC 67
Date of Decision: 19 February 2020
Before: Bourke SC DCJ
File Number(s): 2018/86059