Benn v R - [2023] NSWCCA 24 - NSWCCA 2022 case summary — Zoe

NSWNSWCCA

Benn v R

[2023] NSWCCA 24

Court of Criminal Appeal (NSW)|2022-03-09|Before: Gleeson JA, Adams J, Ierace J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2022-03-09

Before

Gleeson JA, Adams J, Ierace J

Catchwords

[2016] HCA 25 Burgess v R [2019] NSWCCA 13 Cahyadi v R [2007] NSWCCA 1
[1936] HCA 40 Ibbotson (a pseudonym) v R [2020] NSWCCA 92 JM v R [2014] NSWCCA 297
(2014) 245 A Crim R 528 Kentwell v The Queen (2014) 252 [2017] NSWCCA 276 CLR 601
[2016] HCA 17 Noonan v R [2021] NSFs 61WCCA 35 Pearce v The Queen (1998) 194 CLR 610

Source

Original judgment source is linked above.

Catchwords

[2016] HCA 25 Burgess v R [2019] NSWCCA 13 Cahyadi v R [2007] NSWCCA 1[1936] HCA 40 Ibbotson (a pseudonym) v R [2020] NSWCCA 92 JM v R [2014] NSWCCA 297(2014) 245 A Crim R 528 Kentwell v The Queen (2014) 252 [2017] NSWCCA 276 CLR 601[2016] HCA 17 Noonan v R [2021] NSFs 61WCCA 35 Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57 Postiglione v The Queen (1997) 189 CLR 295[1997] HCA 26 RO v R [2019] NSWCCA 183 R v Brown [2012] NSWCCA 199 R v HolderR v Johnston [1983] 3 NSWLR 245 R v Lau [2022] NSWCCA 131 R v MAKR v MSK (2006) 167 A Crim R 159[2006] NSWCCA 381 R v Simpson (2001) 53 NSWLR 704[2001] NSWCCA 534 R v Thomson (2000) 49 NSWLR 383[2018] HCA 55 Sharma v R [2022] NSWCCA 190 SHR v R [2014] NSWCCA 94(2014) 241 A Crim R 544 Sutton v R [2016] NSWCCA 249 Tepania v R [2018] NSWCCA 247

Judgment (36 paragraphs)

[1]

The applicant's offending

Before summarising the conduct the subject of the applicant's offending, it is convenient to set out in tabular form the offences, their maximum penalty and any applicable standard non-parole periods, the sentencing judge's finding of objective seriousness of the offences, the starting point of each indicative sentence (pre the 25 per cent discount) and the indicative sentences (post the 25 per cent discount) specified by the sentencing judge for each offence and the indicative non-parole period, where applicable: Indica- Victim Count Maximum penalty (standard non-parole period) Finding of objective serious- Starting point (pre-25% discount) Indicative sentence (post 25% discount) tive Crimes Act 1900 (NSW) ness Non-Parole Period 1 1: s 66C(3) 10Y Low 2 1Y 6M - Sexual intercourse with person between 14 and 16 range 2: s 66EB(2) 12Y Just below mid-range 3 2Y 3M - Procure child for unlawful sexual activity 3: s 66C(3) 10Y Just below mid-range 3 2Y 3M - Sexual intercourse with person between 14 and 16 2 4: s 61I 14Y Mid-range 8 6Y 4Y 6M Sexual intercourse without consent (7Y) 5: s 61I 14Y Mid-range 8 6Y 4Y 6M Sexual intercourse without consent (7Y) 3 6: s 61J(1) 20Y Just below the mid-range 9 6Y 9M 5Y Aggravated sexual assault (in company) (10Y) 4 7: s 61J(1) 20Y Below the mid-range 9 6Y 9M 5Y Aggravated sexual assault (deprivation of liberty) (10Y) 8: s 61J(1) 20Y Mid-range 10 7Y 6M 5Y 8M Aggravated sexual assault (deprivation of liberty) (10Y) 9: s 61J(1) 20Y Above the mid-range 12 9Y 6Y 9M Aggravated sexual assault (deprivation of liberty) (10Y) 5 10: s 61I 14Y Just below mid-range 6 4Y 6M None specified Sexual intercourse without consent (7Y) 11: s 61I 14Y Within the mid-range 8 6Y 4Y 6M Sexual intercourse without consent (7Y) 12: s 61I 14Y Just above the mid-range 9 6Y 9M 5Y Sexual intercourse without consent (7Y) 13: s 61I 14Y Just above the mid-range 9 6Y 9M 5Y Sexual intercourse without consent (7Y) 6 14: s 61I 14Y Just below mid-range 6 4Y 6M 3Y Sexual intercourse without consent (7Y) 15: s 61I 14Y Upper end of the mid-range 8 6Y 4Y 6M Sexual intercourse without consent (7Y) 7 16: s 61I 14Y Low range 4 3Y 2Y 3M Sexual intercourse without consent (7Y) 17: s 61I 14Y Below mid-range 6 4Y 6M 3Y Sexual intercourse without consent (7Y) 8 18: s 61L 5Y Below mid-range 6 4Y 6M 3Y Indecent assault 19: s 61I 14Y Below mid-range 6 4Y 6M 3Y Sexual intercourse without consent (7Y) 9 20: s 61J(1) 20Y Mid-range 10 7Y 6M 5Y 8M Aggravated sexual assault (inflict actual bodily harm (10Y) 21: s 61I 14Y Upper end of mid-range 8 6Y 4Y 6M Sexual intercourse without consent (7Y) 10 22: s 61I 14Y Upper end of low-range 6 4Y 6M 3Y Sexual intercourse without consent (7Y) 11 23: s 61I 14Y Just below mid-range 6 4Y 6M 3Y Sexual intercourse without consent (7Y) 24: s 61I 14Y Mid-range 8 6Y 4Y 6M Sexual intercourse without consent (7Y) 25: s 61I 14Y Above mid-range 9 6Y 9M 5Y Sexual intercourse without consent (7Y) 26: s 61I 14Y Mid-range 9 6Y 9M 5Y Sexual intercourse without consent (7Y) 12 27: s 61I 14Y Just below mid-range 6 4Y 6M 3Y Sexual intercourse without consent (7Y) 28: s 61I 14Y Mid-range 8 6Y 4Y 6M Sexual intercourse without consent (7Y) 29: s 61I 14Y Above mid-range 9 6Y 9M 5Y Sexual intercourse without consent (7Y) 13 30: s 61L 5Y Within mid-range 3 2Y 3M - Indecent assault 31: s 61I 14Y Within mid-range 8 6Y 4Y 6M Sexual intercourse without consent (7Y) 14 32: s 61L 5Y Low range 2 1Y 6M - Indecent assault 33: s 61L 5Y Low range 2 1Y 6M - Indecent assault

[13]

Counts 23 - 26: Victim 11 - January 2017

On 9 January 2017, the applicant committed four offences against victim 11 aged 20 years.
The applicant and victim 11 had connected on Tinder on 9 January 2017, during which the victim told the applicant that she did not want to have sex when he suggested they "hang out together". The applicant told the victim that "he didn't want to simply get his dick wet" and he was a "genuine guy". They agreed to meet up at the victim's unit at 4:45 am after the applicant had informed her "I want to show you what a decent bloke is". The applicant turned up with a puppy, which the applicant and victim played with for some ten minutes before moving into the victim's unit. The applicant then persuaded the victim that they should have a cuddle in the victim's bedroom and once on the bed began kissing the victim. She initially responded but then pulled away after the applicant became forceful. The applicant then removed the victim's leggings and inserted two fingers into her vagina despite her telling him to stop (Count 23).
The applicant then straddled the victim and informed her "he was running the fucking show". The applicant continued to digitally penetrate the victim before removing his fingers from her vagina and placed a finger in her anus (Count 24). The applicant then flipped the victim over and inserted his penis into her vagina (Count 25). The victim recalled being restrained by the applicant which included an arm around her neck in a type of choke hold, this caused the victim difficulty with her breathing. The applicant then grabbed the victim after removing his penis from her vagina and forced her head onto his penis and directed her "to suck it, do what you're told". At some point the victim had broken free and attempted to flee her bedroom. She was grabbed by the applicant who told her "don't try to fight me off again. I'll put you through the fucking wall". The applicant again forced the victim to perform fellatio on him after grabbing her hair (Count 26). After this had stopped the applicant ordered the victim to stand in the corner whilst he got dressed. The applicant said to her "you know a penis my size is big enough to penetrate but not leave proof of force. There is no DNA because I didn't cum". The victim suffered soreness in her vagina for a day or two after the incident and had bruises on her upper arms.
The judge assessed the objective seriousness of count 23 at just below mid-range, count 24 at mid-range, count 25 above mid-range, and count 26 at mid-range of offending.

[14]

Counts 27 - 29: Victim 12 - January 2017

On 12 January 2017, the applicant committed three offences against victim 12 aged 20 years.
The applicant met victim 12 on 10 January 2017 at the home of her friend, John (a pseudonym). The applicant had a puppy with him. On 12 January 2017, the applicant contacted the victim via Facebook and told her his puppy had died. The victim told him if he needed someone to talk to, he could visit her at her home. She told the applicant she lived with her mum, but her mum was at work until 5 pm. The applicant arrived at her home at 1:30 pm. After talking for a while, the applicant asked the victim if they could go into her bedroom and cuddle. At one point the applicant and the victim were laying down on the bed and consensual sexual activity took place. The applicant then proceeded to remove a tampon from the victim and indicated to her he did this "so they could have sex". Consensual penile/vaginal intercourse then commenced with the victim facing away from the applicant. The applicant then placed his finger inside the anus of the victim. The victim told him to stop but he continued (Count 27). She eventually got up and went to the bathroom distressed. When the victim returned from the bathroom, she told the applicant she did not want to have anal sex. At this point the applicant forced his penis into the victim's mouth, the victim felt she was choking (Count 28). This continued until the applicant's penis became erect again, he then ordered the victim to turn around. The victim told the applicant she "did not want anal" and started crying. The applicant forced his penis into the victim's anus (Count 29). The victim was in a lot of pain. Later, still distressed, the victim found herself covered in menstrual blood. She made a complaint to her friend John, who contacted the applicant via telephone. The applicant stated, "maybe he had gone a little overboard".
The judge assessed the objective seriousness of count 27 as just below mid-range, for count 28 as mid-range, and for count 29 as above mid-range of offending.

[17]

Personal circumstances of the applicant

The applicant did not give evidence at the sentence hearing. He relied upon three letters of reference which were tendered: one from his parents, one from his sister, and one from a friend of the applicant. He also relied on a psychological report prepared by Ms Caroline Hare dated 24 July 2018.
The applicant was aged between 23 years and 27 years at the time of the offending, and 29 years at the time of sentence. He had no prior criminal history. He had completed Year 10 and was awarded his School Certificate. He then completed a 4-year electrical apprenticeship and worked as an electrician. He had an unstable work history; his longest period of employment with the same employer was about three years, his employment was terminated once for redundancy and twice for drug use, and he had not worked in the eight months prior to his arrest in January 2017.
Ms Hare noted the applicant's apparent lack of recall of the details of his sexual offending and assessed his psychological insight as poor. She also noted that the applicant was currently single; he reported three prior romantic unions with female partners, one when he was aged 17 lasting about seven months and the others when aged 20 and 23 years each lasting about 12 months. He estimated to have had over 100 sexual partners, all of whom were female, and 90 per cent of whom had been one-night stands. He reported having accessed sex workers on about 15 occasions since age 22. He stated that he had engaged in group sex on about 12 occasions.
Ms Hare formed the opinion that the applicant was uncomfortable discussing his sexual behaviours, "which provided a barrier to him being candid, and as such, I am unclear of his sexual preferences or indeed whether he endorses any sexual deviancies".
The applicant gave a history of drug use. He began using MDMA (ecstasy) at the age of 19 and continued "on and off" for a couple of years. From age 20 he began interchangeably using cannabis, amphetamines, and heroin at weekends for about three or four years, he occasionally experimented with cocaine, and at the age of 23 began using crystal methamphetamine on weekends. He became dependent on "ice" and eventually struggled to get out of bed of interact with people if he was not under the influence of ice. The applicant reported that he had a substance abuse problem during a period of his offending.
The applicant also gave a history that in 2010, he attended the scene of a serious motorbike accident involving his brother, who lost the use of one of his arms, and this triggered the onset of post traumatic symptoms. Ms Hare was of the view that it seems likely that the applicant met the criteria for post-traumatic stress disorder (PTSD).
The applicant reported experiencing suicidal ideation on a couple of occasions, although he never attempted suicide, and he had sought professional psychological and psychiatric support whilst in custody. Ms Hare observed that the applicant has drug abuse/dependence issues and feelings of helpfulness, is socially isolated and has limited social skills.
Ms Hare noted that the applicant maintained that at the time of the offending he believed the victims were engaging in consensual sexual acts with him and that when she challenged the applicant about the victims crying, shouting "no", trying to escape, and pushing him away, the applicant became vague and stated that he could not recall any such behaviour. Ms Hare assessed the applicant as having an increased likelihood of sexually reoffending noting, that he displayed little insight into his offending and presented as requiring a high level of treatment to prevent reoffending.

[19]

The sentencing judgment

The sentencing judge recounted the facts of the offences which had been agreed in a statement of facts, assessed the objective seriousness of the offending and referred to the seven victim impact statements, three of which were read to the Court. He also referred to the applicant's subjective circumstances, particularly as outlined in the report of Ms Hare. The following further matters should be noted.
First, at the commencement of his reasons his Honour correctly identified the maximum penalty for each offence, and where relevant, the standard non-parole period. He noted that the applicant was entitled to a utilitarian discount of 25 per cent for his guilty pleas.
Second, after referring to the need for general and specific deterrence, his Honour made the following findings and observations concerning the seriousness of the offending: 1. the applicant's treatment of many of his victims was nothing short of "despicable", and his conduct was "simply evil"; 2. the offending had left a path of emotional and psychological damage for the victims; 3. a clear message needs to be sent into the community that those who engage in this type of "depraved" and criminal conduct will receive condign punishment, involving many years of imprisonment; and 4. whilst there was "some planning" and in other areas, an absence of planning, the planning was not an aggravating factor.
Third, when addressing the applicant's subjective case, his Honour made the following findings and observations: 1. the applicant's good character was deserving of significantly less weight than would otherwise be the case, given the history of offending against 14 victims over a period of approximately four years; 2. there was little by way of contrition or remorse other than the applicant's plea of guilty. The applicant had told Ms Hare, the psychologist, that he "had destroyed people's lives"; 3. there was no causal connection between the applicant's mental health condition, specifically the diagnosis of PTSD, and the offending; 4. the applicant's drug addiction had "no causal connection between whatever his mental health is and the offending against these four young women"; and 5. the applicant had "at best, only guarded prospects of rehabilitation" and the picture regarding rehabilitation is "very bleak".
Fourth, his Honour declined to find special circumstances warranting a departure from the ratio between the non-parole period and the aggregate sentence specified by s 44(2B) of the Sentencing Act. Although his Honour noted that special circumstances "may" exist (referring to the significant accumulation in this case, that it was the applicant's first time in custody, and the applicant would need increased supervision in order to address his high level of treatment needs in relation to his dynamic risk factors for sexual recidivism), he concluded that the parole period under the aggregate sentence that was imposed was "of more than sufficient length to meet the needs of parole" and any lesser non-parole period would fail to reflect the enormous criminality of his offending against 14 different young women over a four-year period.
Fifth, his Honour expressly referred to the totality principle stating: The Court will reflect the principles set out by the High Court in Pearce by nominating indicative head sentences for each offence, and in the case of standard non-parole period offences, indicative non-parole periods, which would reflect the discrete criminality of each count. The Court would apply the principle of totality in imposing an aggregate sentence that reflects the Court's assessment of the totality criminality.
As to effect, as noted, in the context of considering whether there were special circumstances, his Honour said that there would be "significant accumulation in this case".
Sixth, when nominating indicative sentences and indicative non-parole periods, where applicable, his Honour correctly applied the 25 per cent discount for the applicant's guilty pleas to the indicative sentences, not the aggregate sentence: Elsaj v R [2017] NSWCCA 124 at [56]; Berryman v R [2017] NSWCCA 297 at [29]-[31].
Seventh, after observing that the total indicative sentence is "something like" 169 years and 6 months, his Honour reiterated that he had applied the principle of totality in imposing the aggregate sentence and non-parole period. The aggregate sentence imposed was backdated to 14 January 2017, the date from which the applicant had been in custody.

[21]

Determination

Although the appeal is against the aggregate sentence, and indicative sentences are not themselves amenable to appeal, they may be a guide to whether the aggregate sentence reflects error: JM v R [2014] NSWCCA 297; (2014) 245 A Crim R 528 at [40].
Since Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42], an applicant does not need to establish that an error has had an actual effect on the sentence imposed, only that it has "the capacity to influence the sentence": Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] (Basten JA); Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [145] (N Adams J, Leeming JA agreeing). Assessment of the capacity of an error in the indicative sentence to influence the aggregate sentence directs attention to the nature and materiality of the error.
For example, in AB v R [2014] NSWCCA 31, when imposing an aggregate sentence in respect of 15 offences and taking into account other offences on a Form 1, an error in the statement of a maximum penalty of two s 61N(1) act of indecency offences as seven years whereas it was two years, had no material bearing upon the assessment of the aggregate sentence. This was because the indicative sentences of six months for the two act of indecency offences reflected the objective seriousness of those offences, the maximum penalty for the s 61N(1) offence being two years: AB v R at [68] (R A Hulme J, Beazley P and Schmidt J agreeing).
By contrast, cases where the Court has concluded that an error in the indicative sentence has the capacity to influence the aggregate sentence, include:

Elchiekh v R [2016] NSWCCA 225, where the maximum penalty was misstated for three of four counts: at [32]-[33] (Price J, Button J and Fagan J agreeing);
Sutton v R [2016] NSWCCA 249, where the standard non-parole period was misstated for one of two counts: at [35]-[37] (Gleeson JA, Fagan J and N Adams J agreeing);
Battersby v R [2018] NSWCCA 141, where the maximum penalty was misstated for one of three counts: at [39]-[42] (Walton J, Hoeben CL at CL and Button J agreeing); and
Ibbottson, where the discount for the guilty pleas on five counts was applied to the aggregate sentence rather than the indicative sentence: at [145] (N Adams J, Leeming JA agreeing).

The error in the indicative sentence for count 18 is a patent error. The starting point of six years for the indicative sentence, before the 25 per cent discount, exceeds the maximum penalty of five years imprisonment: Crimes Act, s 61L. The error in this case is distinguishable from that in AB v R. The indicative sentence for count 18 of 4 years and 6 months does not reflect the objective seriousness of the s 61L offence which the judge assessed as "at below mid-range", the maximum penalty being 5 years. So much was fairly accepted by the Crown, when acknowledging that an indicative sentence more in the range of 2 years would have been appropriate for count 18.
The error was not immaterial (contrary to the Crown's submissions) because there were many offences the subject of the aggregate sentence. The error has the capacity to influence the aggregate sentence because in determining the total criminality of the applicant's offending his Honour mistook the legislative guidepost of the maximum penalty for count 18. In addition, there is no suggestion in his Honour's reasons that when imposing the aggregate sentence he dealt with count 18 as wholly concurrent with count 19 against the same victim or with any of the other offences.
Since error has been established, this Court is required to re-sentence the applicant: Kentwell v The Queen at [42]. That being the case, ground 3 asserting manifest excess does not need to be addressed, although I have had regard to the submissions on ground 3 when considering re-sentence.
Nor is it strictly necessary to address grounds 1 and 2 which assert errors by the sentencing judge in applying the totality principle and the failure to give reasons for certain matters. However, in deference to the detailed arguments advanced by senior counsel for the applicant, I have addressed grounds 1 and 2 below.

[22]

Ground 1: error in the approach to concurrency, accumulation and the totality principle

The applicant submitted that there is a lack of transparency in the sentencing process both as a matter of principle and as a failure of process, and both were reflected in a breach of the obligation to give reasons: cf R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [42]-[51].
The applicant's argument relied upon the proposition that once indicative sentences have been identified, the sentencing judge is obliged to "work through" what the judge did with the indicative head sentences and non-parole periods, and this involves three steps:

first, taking each complainant and the internal issue of concurrency and cumulation, a notional total for each complainant must be calculated, and the judge must state his reasons for any notional assessment of the degree of concurrency and accumulation of the indicative sentences relating to each separate complainant;
second, it is necessary to address the issue of notional cumulation between complainants. This was described as equivalent to the Pearce exercise; and
third, it is necessary for the judge to look at the total figures provisionally reached and consider if this is appropriate or "crushing". This was described as equivalent to the Postiglione exercise.

The applicant says that if these steps are not taken then transparency has been abandoned and the just and fair sentencing significantly compromised.
In oral argument, the applicant submitted that "in the appropriate case something more needs to be done" to explain the process by which the indicative sentences and non-parole periods "translate" with the ultimate outcome, being the use of words to explain the degree of concurrence or accumulation when giving effect to the totality principle. The applicant referred, by way of example, to the reasons of Beech-Jones J (Basten JA agreeing) when re-sentencing the offender in Young (a pseudonym) v R [2021] NSWCCA 163 at [101].
However, the applicant's submission did not stop there. The applicant submitted that in "some" cases, like the present, involving numerous multiple offences it is necessary for the sentencing judge to explain the degree of concurrence or accumulation when giving effect to the totality principle, using "numbers". According to the submission, it was necessary in this case for the sentencing judge to state a notional total sentence and non-parole period for each complainant, and the notional cumulation between complainants.
The Crown submitted that "indicative sentences" are not substantive sentences of imprisonment, rather, this is a shorthand term for what is indicated to the offender, by way of transparency, of what is comprised within the aggregate sentence. The Crown says that nothing in the Sentencing Act requires these nominal sentences to be accumulated only as if they were actual terms of imprisonment.
Next, the Crown drew attention to authorities for the proposition that the aggregate sentencing legislation allows sentencing courts a wide discretion, and the well-known propositions concerning aggregate sentencing summarised in JM v R at [39]-[40].
The Crown referred to authorities against the applicant's submissions as to the required "transparency" in aggregate sentencing, and the asserted need to both "translate" the notional sentences into the aggregate sentence and to assess a precise degree of accumulation, the so-called "notional accumulation". The Crown submitted that the critical question is whether the aggregate sentence reflects the totality of the criminality involved, not an assumption that the indicative sentences are correct, and then an endeavour to assess the extent by which there has been some notional accumulation.
Responding to the asserted lack of transparency in the reasons of the sentencing judge, the Crown submitted that there was clearly a very significant degree of notional concurrency, as well as some degree of notional accumulation in arriving at the aggregate sentence of 40 years with a non-parole period of 30 years, given the total of the indicative sentences was 169 years and 6 months, and the remarks of the sentencing judge in specifically referring to this figure when he reinforced that the sentence imposed reflected the application of the principle of totality.

[23]

Determination

Two preliminary observations should be made. First, the principle of totality is a common law principle of sentencing which is preserved by the Sentencing Act, s 21A(1): Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [1].
Second, it is uncontroversial that the principle of totality applies to an aggregate sentence imposed pursuant to s 53A of the Sentencing Act: see, for example, JM v R at [39] (proposition 6); Aryal v R [2021] NSWCCA 2 at [40]; Kliendienst v R [2020] NSWCCA 98 at [84]; ZA v R [2017] NSWCCA 132; (2017) 267 A Crim R 105 at [70]-[74]; SHR v R [2014] NSWCCA 94; (2014) 241 A Crim R 544.
A detailed review of the principle of totality in sentencing appears in Hall v R [2021] NSWCCA 220 [54]-[65] (R A Hulme J, Leeming JA agreeing). It is sufficient to mention three authorities, noting that they each preceded the introduction of aggregate sentencing by the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), Sch 2.
The principle was described by Street CJ in R v Holder; R v Johnston at 260, as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
In Mill v The Queen (1988) 166 CLR 59 at 62-3; [1988] HCA 70, the joint judgment described the principle as follows: The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references): 'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong["]; "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'." … Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45], McHugh, Hayne and Callinan JJ, citing Mill at 62-63, observed: A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

[24]

The Sentencing Act

The starting point for the issues raised by ground 1 is the statute. The effect of the applicant's submissions is that when imposing an aggregate sentence in respect of multiple offences, the sentencing judge is obliged to identify and state the notional cumulation of the indicative sentences upon one another, in order to reach an aggregate sentence and non-parole period, and that the failure to do so is an error. Further, where there is more than one complainant, the sentencing judge is required to identify and state the notional cumulation internally for each complainant (where there are multiple offences), as well as the notional cumulation as between complainants, and again the failure to do so is an error.
The applicant's submissions find no support in the text of s 53A, nor any other provision of the Sentencing Act, considered in light of its context and purpose: SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20].
The key provision in the Sentencing Act is s 53A, supplemented by ss 54A and 54B. Section 53A is contained in Dvn 1 (Setting Terms of Imprisonment) of Pt 4 of the Sentencing Act. It provides a sentencing option with respect to multiple offences whereby the court may impose an aggregate sentence as an alternative to imposing individual sentences: 53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following - (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.
Sections 54A and 54B are contained in Dvn 1A (Standard Non-Parole Periods) of Pt 4 of the Sentencing Act and relevantly provide: 54A What is the standard non-parole period? (1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division. (2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. 54B Consideration of standard non-parole period in sentencing (1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division. (2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. … (4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence. (5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account. … (7) The failure of a court to comply with this section does not invalidate the sentence.
The effect of s 53A(2) is that when imposing an aggregate sentence the court is required to "indicate" and make a written record of two matters: one is the fact that an aggregate sentence is being imposed, the other is the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence.
Section 54B supplements s 53A by imposing additional requirements when the court imposes an aggregate sentence with respect to an offence to which a standard non-parole period applies. Section 54A(1) identifies such offences and the applicable standard non-parole period in the Table to Div 1A of Pt 4 of the Sentencing Act. Section s 54A(2) explains what the standard non-parole period represents.
The additional requirements in s 54B for an aggregate sentence with respect to an offence to which a standard non-parole period applies are: 1. the court is to "indicate" and make a written record in its reasons of the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence: s 54B(4); and 2. the court must make a record of the reasons why it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, had it done so, and must identify in its reasons each factor that it took into account.
However, the failure of a court to comply with s 54B does not invalidate the sentence: s 54B(7).
Section 44 is contained in Dvn 1 of Pt 4 of the Sentencing Act and also has relevance where an aggregate sentence is imposed. It provides with respect to the statutory ratio for an aggregate sentence: 44 Court to set non-parole period … (2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence. (2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (2C) The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B. (3) The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence. …
The effect of s 44 is that when the court imposes an aggregate sentence: 1. the court may set one non-parole period for all the offences to which the sentence relates, after setting the term of the sentence: s 44(2A); 2. there is no requirement for the court to "indicate" the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence, unless it is required to do so by section 54B where the court imposes an aggregate sentence with respect to an offence to which a standard non-parole period applies: s 44(2C); 3. the non-parole period is not to be less than 75 per cent of the aggregate head sentence unless the court finds that that there are "special circumstances" for it being less, in which case the court must make a record of its reasons for that decision: s 44(2B); and 4. the failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence: s 44(3).
The purpose of s 53A is explained in propositions 1, 4 and 6 in JM v R at [39]: 1. Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a "cascading or 'stairway' sentencing structure" when the principle of totality requires some accumulation of sentences: R v Rae [2013] NSWCCA 9 at [43]; Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231]; Behman v R [2014] NSWCCA 239; R v MJB [2014] NSWCCA 195 at [55]-[57]. … 4. It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen [1998] HCA 57; 194 CLR 610. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a "blanket assessment" by simply indicating the same sentence for a number of offences is erroneous: R v Brown [2012] NSWCCA 199 at [17], [26]; Nykolyn v R, supra, at [32]; [56]-[57]; Subramaniam v R [2013] NSWCCA 159 at [27]-[29]; SHR v R, supra, at [40]; R v Lolesio [2014] NSWCCA 219 at [88]-[89]. It has been said that s 53A(2) is "clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges": Khawaja v R, supra, at [18]. … 6. One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence: Nykolyn v R, supra, at [58]; Subramaniam v R, supra, at [28]. A further advantage is that it assists when questions of parity of sentencing as between co-offenders arise: R v Clarke, supra, at [68], [75].
The transparency in aggregate sentencing spoken of in JM v R at [39], is not the transparency for which the applicant contends by its prescriptive "three-step" approach to the application of the totality principle in aggregate sentencing. The transparency referred to in JM v R is directed to three matters: (a) the criminality involved in each offence is to be assessed individually in the indicative sentences recorded in accordance with s 53A(2), consistently with the requirement in Pearce, (b) the requirement to specify indicative sentences assists in the application of the totality principle, which still applies to aggregate sentencing, and (c) the indicative sentences also serve to provide victims of crime and the public with an understanding of the level of seriousness with which a court has regarded an individual offence.
Nor does the applicant's transparency submission sit comfortably with the terms of s 53A(5). Given that an aggregate sentence is not invalidated by a failure to comply with the requirement for indicative sentences to be recorded in accordance with s 53A(2), there is no warrant for reading into the Sentencing Act a legislative intention that the sentencing judge's reasons make explicit, in the manner suggested by the applicant, how the indicative sentences "translate" into the outcome. The question in cases, like the present, where the aggregate sentence is challenged on the ground of manifest excess, is whether the aggregate sentence is excessive in the sense that it is unreasonable or unjust.

[25]

The cases

The applicant submitted, by reference to some decisions in this Court involving appeals against aggregate sentences in which the Court engaged in an analysis of the notional accumulation of the indicative sentences, informed where applicable by the sentencing remarks, that such cases support his contention that the sentencing judge is required to make explicit how the indicative sentences translate into the aggregate sentence. Reference was made to the remarks of Grove AJ in R v Brown [2012] NSWCCA 199 at [35] (Macfarlan JA and McCallum JA agreeing), Fullerton J in SHR v R at [40]-[43] (Basten JA and Davies J agreeing) and Chaouk v R [2017] NSWCCA 295 at [62]-[63] (Macfarlan JA and Fagan J agreeing), N Adams J in Kleindienst v R at [84], [100] and [103] (Simpson AJA and Rothman J agreeing), and Beech-Jones J in Martin v R [2014] NSWCCA 124 at [36]-[41] (Hoeben CJ at CL and Rothman J agreeing), Beale v R [2015] NSWCCA 120 at [73] (Hoeben CJ at CL and R A Hulme J agreeing), Lee v R [2020] NSWCCA 244 at [32], [36] (Payne JA and Fagan JA agreeing) and Noonan v R [2021] NSWCCA 35 at [33] (Bathurst CJ and Wilson J agreeing).
The applicant contrasted the remarks in the above-mentioned cases with statements in decisions such as JM v R, Burgess v R [2019] NSWCCA 13 at [40], Vaughan v R [2020] NSWCCA 3 and Lee v R, which were said to stand for the proposition that any analysis of the notional accumulation of the indicative sentences and the aggregate sentence ultimately imposed was resisted or criticised. The applicant says that the former approach is to be preferred.
A major difficulty with the applicant's submissions is that it is wrong to treat the remarks in cases such as R v Brown at [35] that "potentials for accumulation" of the various notional sentences can be examined to determine whether the "aggregate sentence represents a sound exercise of sentencing discretion", as implicit support for the broader submission that giving effect to the totality principle requires the asserted three-step approach by the sentencing judge with the concomitant need to make explicit, or to specify with precision the degree to which the indicative sentences would be concurrent or accumulated. To require the sentencing judge to do so would be tantamount to requiring the judge to express commencement dates for each offence, which is contrary to one of the rationales for the introduction of s 53A of the Sentencing Act: Martin v R at [37]; Beale v R at [73]; Chaouk v R at [62].
As Beech-Jones J said in Beale v R at [73]: In that regard the "potentials for accumulation" of the various notional sentences can be examined to determine whether the "aggregate sentence represents a sound exercise of sentencing discretion" (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying the totality principle (Martin v R [2014] NSWCCA 124 at [37]).
R A Hulme J added at [4]: In the present case, the judge simply indicated which sentences would be concurrent and which would be partially accumulated. That, in my respectful view, is as precise as one needs to be and is an approach that takes full advantage of one of the benefits that aggregate sentencing was designed to achieve. Absolute precision in specifying the degree of accumulation is tantamount to expressing commencement dates for each of the indicative sentences; an approach that has been eschewed in previous decisions of this Court. In JM v R [2014] NSWCCA 297 at [39]-[40] I listed a number of propositions concerning aggregate sentencing, two of which (in [39]) were [propositions 1 and 8 which were then set out in full].
Other cases which make the same point, include:

Vaughan v R at [117], where R A Hulme J said of the expression "notional" accumulation: The applicant's argument proceeds on a premise that the indicated sentence for one offence is "accumulated" upon the sentence for another offence. However, in setting an aggregate sentence, a judge does not need to assess a precise degree of accumulation at all. The judge simply determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending. Quite commonly, there are references to there being "notional accumulation" - but if such a reference is apt at all, sight should not be lost of the fact that it is truly something that is "notional".
Kliendienst v R at [85], where N Adams J reviewed the authorities and rejected the need to specifically state the degree of accumulation and concurrence when imposing an aggregate sentence, stating: This Court will not intervene where the failure to apply the totality principle is not apparent, nor when there is a complaint that the judge has failed to specifically state the degree of accumulation and concurrence. That this is so can be seen by reference to a number of decisions of this Court addressing this question.
Burgess v R at [40], where Hoeben CJ at CL (Fagan and Wright JJ agreeing) observed: Another consequence of imposing an aggregate sentence is that questions of accumulation cannot be analysed in the same way as they can with traditional sentencing structures (Tuite v R [2018] NSWCCA 175 at [91]). Accordingly, the only relevant question is whether the sentence reflects the totality of the criminality. Since the extent of the notional accumulation does not dictate a conclusion that the aggregate sentence is unreasonable or plainly unjust, this ground of appeal has not been made out.

Next, the applicant sought to draw support for his argument by reference to the suggested tension in the authorities between the statement by Johnson J in Vaughan v R at [91] that "[t]he principles of sentencing concerning accumulation and concurrency at general law, as explained in Pearce v The Queen, have no application where an aggregate sentence is used by the sentencing Court" and the italicised passage set out below in the reasons of Beech-Jones J in Lee v R at [32]: … with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J agreed and cases cited thereat; "JM"). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; "Beale"). The "potentials for accumulation" of the various notional sentences can be examined to determine whether the "aggregate sentence represents a sound exercise of sentencing discretion" (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). The "principle", or even ultimate, "focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved" (JM at [40]). (Emphasis added)
The applicant's submission is based on a misreading of the context of the statement by Johnson J in Vaughan v R at [91] where the sole ground of appeal was that the sentencing judge erred in the notional accumulation of the indicative sentences. As N Adams J observed in Kliendienst v R [100]: Having regard to what Johnson J stated at [93] and [94], and given the limited arithmetical argument before the Court in Vaughan, I am satisfied that his Honour's observation in the first sentence of [91] was directed at the ground being considered by his Honour; that is, there can be no expectation when an aggregate sentence is imposed that an offender will be able to arithmetically align that aggregate sentence with the indicative sentences, as can be done when an offender is sentenced in the traditional way. The enactment of s 53A removed the obligation for a sentencing judge to provide the exact dates for each offence. I do not consider that Johnson J was stating in the first sentence of [91] that this Court is never able to look at the indicative sentences in order to assess in general terms the degree of concurrence and accumulation. That would be contrary to the principles derived from the decisions I have referred to above as well as to the fact that his Honour goes on in the next sentence in [91] of Vaughan to confirm that the totality principle still applies. His Honour also noted that, as occurred in Rae, error can be established if it is apparent that no, or no appropriate, degree of accumulation has occurred as between the indicative sentences when compared with the aggregate sentence.

[30]

Counts 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 16, 17, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29

His Honour was required to give reasons for departing from the standard non-parole period in respect of those offences to which a standard non-parole period applied: s 54B(5). The applicant submitted that his Honour failed to do so for counts 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 16, 17, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29 and 31. For those counts, the indicative non-parole period was shorter than the relevant standard non-parole period. A related submission that the indicated non-parole periods for counts 15 and 21 were longer than the standard non-parole period was not pressed by the applicant. In fact, the indicative non-parole periods for counts 15 and 21 were shorter than the standard non-parole periods for those offences.
While his Honour did not specifically describe one part of his reasons as being directed to complying with the requirement in s 54B(5), that is not required by the statute. The relevant question for this Court is whether the sentencing judge, in the entirety of his reasons, complied with the provision: R v Tonari [2014] NSWCCA 232 at [66] (Johnson J, Harrison and Garling JJ agreeing).
In Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233 at [110], Johnson J (Payne JA and Simpsons AJA agreeing) set out a number of propositions, including: … (c) the concept of a standard non-parole period, as explained in s.54A(2), is an abstract one - it includes only "the objective factors affecting the relative seriousness of that offence" and "is in the middle of the range of seriousness"; (d) in construing s.54B as a whole, it is important to keep in mind the new s.54B(6) - a sentencing court is not required to identify the extent to which the seriousness of the offence in question differs from the abstract, notional or theoretical offence referred to in s.54A(2) - a process of comparing and contrasting the actual offence with the abstract one is not necessary; (e) an assessment of the objective gravity of the offence is necessary as required at common law (see [107]-[108] above), but the sentencing Judge is not required to undertake a process of identifying features of the offence which were taken into account (or not taken into account) in considering the role of the standard non-parole period in the particular case;
The Crown correctly submitted that, taken as a whole, the reasons that were given adequately complied with the requirement in s 54B(5). His Honour found that the objective seriousness of some of the offences was below the mid-range for offences of their type, relevantly, counts 6, 7, 10, 14, 16, 17, 19, 22, 23, and 27. For all the offences, including those which the objective seriousness was assessed by his Honour at the mid-range or above for offences of their type, his Honour's reasons addressed the relevant considerations bearing on the seriousness of the individual offences and the relationship to the legislative guideposts given by the maximum penalty and the standard non-parole period, where applicable, and the subjective circumstances of the applicant. Further, the applicant entered pleas of guilty for all the offences. These may be all treated as appropriate reasons for departing from the standard non-parole period, when specifying indicative non-parole periods: Mohindra v R [2020] NSWCCA 340 at [22] (Basten JA, Johnson and Davies JJ agreeing).

[31]

Special circumstances

The applicant submitted that the sentencing judge was obliged by virtue of s 44(2) of the Sentencing Act to give reasons for finding "special circumstances" if any indicative non-parole period was less than 75 per cent of the indicative sentence for offences to which a standard non-parole period applied. Here, the indicative non-parole period for seven offences (counts 14, 17, 18, 19, 22, 23 and 27) were less than 75 per cent of the indicative sentences for those counts, however, according to the submission, the ultimate sentence imposed did not reflect the finding of special circumstances because the aggregate non-parole period represented exactly 75 per cent of the aggregate head sentence.
The applicant submitted that the sentencing judge failed to give reasons for why he found special circumstances for the offences which he did, or for all offences, if that were the case, and then explain why those findings did or did not carry over to the ultimate non-parole period.
Contrary to the applicant's submissions, s 44(2) of the Sentencing Act does not apply where the Court imposes an aggregate sentence. The "indicative" sentences specified by the sentencing judge were entirely notional and did not separately require reasons in accordance with s 44(2). Rather, where the court imposes an aggregate sentence the applicable provision is s 44(2B). The effect of s 44(2B) is that the non-parole period of an aggregate sentence must not be less than 75 per cent of the aggregate sentence, unless the court decides that there are special circumstances, in which case the court must make a record of its reasons for that decision.
The sentencing judge was not obliged to vary the statutory ratio: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [73] (Spigelman CJ, Mason P, Grove and Newman JJ agreeing). Although his Honour identified matters which "may" constitute special circumstances, he declined to find special circumstances and gave reasons for not making an adjustment downwards of the non-parole period: see [72] above. The second of those reasons, that any lesser non-parole period would fail to reflect the criminality involved in the offending, is the ultimate constraint to which Spigelman CJ referred in R v Simpson at [63].
Since his Honour declined to find special circumstances for the purposes of s 44(2B) and the non-parole period fixed by his Honour represented 75 per cent of the aggregate sentence, there was no requirement to give reasons in compliance with s 44(2B) of the Sentencing Act.
Insofar as the indicative non-parole periods for six offences (counts 14, 17, 19, 22, 23 and 27) were less than 75 per cent of the indicative sentences for these offences, the Crown submitted that the variation of the statutory ratio was a result of a mathematical error, rather than a deliberate reduction for special circumstances. For these counts, the indicative sentence was 4 years 6 months, and the indicative non-parole period was 3 years. (The indicative non-parole period for count 18 can be put aside as the s 61L offence is not an offence to which a standard non-parole period applied).
It should be inferred, as the Crown submitted, that his Honour miscalculated the non-parole period for these six offences as two-thirds of the indicative sentence, rather than three-quarters (which would have been 3 years 4 months with rounding down) and repeated this error for each of these counts. By contrast, every other indicative non-parole period was either 75 per cent of the indicative head sentence or very close to it with rounding down.
Even if his Honour intended to make an adjustment downwards of the non-parole period for these six counts (which I consider most unlikely), that does not reveal error in the aggregate sentence and non-parole period, given the stated reasons for not varying the statutory ratio between the aggregate sentence and the non-parole period.
Ground 2 should be rejected.

[32]

Resentencing and s 6(3)

As his Honour fell into error, this Court must now exercise its sentencing discretion unless it concludes in the independent exercise of its discretion that the same or a more severe sentence is warranted in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW): Kentwell at [42].
The Court's independent sentencing discretion is to be exercised on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [14]; Douar v R [2005] NSWCCA 455 at [124].
The applicant relied upon additional evidence on re-sentence concerning his custodial conditions and the effect of restrictions arising from the COVID-19 pandemic. The applicant's affidavit of 14 February 2022 addressed those matters. An affidavit filed by the solicitor for the Crown also addressed the applicant's custodial conditions at the Junee Centre since March 2021. This affidavit was based on statements contained in an email received on 27 February 2022 from the General Manager of the operator of that Centre which described the conditions of the maximum-security unit in which the applicant was housed, described the Centre's pandemic containment plan initiated under advice from NSW Health, Justice Health and Corrective Services NSW Command Centre, which involved Centre lockdowns to contain an epidemic outbreak, confirmed that positive Covid-19 cases were first identified at Junee on 14 January 2022, and noted that the Centre remained under restricted routines until 14 February 2022 when a modified routine was commenced.
In contending for a lesser sentence, the applicant relied upon the written submissions which had been advanced under the manifest excess ground. Five matters were emphasised: (a) the applicant was a young man at the time of offending (24-27 years old) and at sentence, with no prior criminal record, (b) the applicant had a reasonable educational and work history, which held out some promise for his re-integration into society upon his release, (c) though the applicant did not give evidence on sentence, there was uncontroverted observational evidence from his parents and sister to the effect that his personality had changed at around the time that he had later identified to them, and Ms Hare, as being when he commenced using "ice", (d) the applicant's lack of insight and/or difficulty in discussing his offending behaviour was, according to the uncontroverted opinion of Ms Hare, psychologist, not unusual for first-time, untreated sex offenders, and (e) the applicant was willing to engage in offence-based intervention in custody.
The Crown submitted that the Court would not arrive at a lesser sentence emphasising the number of victims, offences, and period of offending - 14 victims, 33 offences over 4 years. The Crown further submitted that the offending involved very serious examples of a number of the offences and the aggregate sentence is not a "crushing" sentence.

[33]

Determination

I have approached the resentencing by adopting and acting upon the sentencing judge's unchallenged factual findings and assessments: DL v The Queen at [9]; Turnbull v R [2019] NSWCCA 97 at [44]-[46] (Simpson AJA, Ierace J agreeing, Wilson J not deciding); RO v R [2019] NSWCCA 183 at [82] (Beech-Jones J, Bathurst CJ and N Adams J agreeing). This includes the sentencing judge's unchallenged assessments of objective seriousness and the findings as to the applicant's moral culpability, remorse and contrition, prospects of rehabilitation, and the emotional and psychological damage for the victims.
As noted at [57] above, his Honour was not obliged to indicate where on the scale of seriousness each offence falls when dealing with an offence which carries a standard non-parole period, but it was not an error for a judge to adopt such an approach: DH v R at [33] (Harrison J), [58]-[59], [62] (Yehia J). Although the applicant did not challenge the assessments of objective seriousness, the Crown disputed his Honour's categorisation of the gravity of counts 10, 11, 12 and 13, and count 19, as being too lenient. The Crown submitted that these s 61I offences should have been assessed at the more serious end of offences of this type.
My assessment of the objective seriousness of counts 10, 11, 12 and 13 coincides with his Honour. However, I take a different view in relation to count 19 which his Honour categorised as "below the mid-range". This count involved forcing the victim to perform fellatio on the applicant. The offence was very serious. It involved the applicant using considerable force on the victim, who protested throughout and tried to resist the applicant. The victim's response put the applicant on notice that what he was doing was wrong and the victim was having no part of it. But the applicant was not deterred. He used his physical strength to overwhelm the victim's resistance.
It is necessary that the aggregate sentence have regard to the objective gravity of the offences, the need for specific and general deterrence, as well as recognising the harm done to the victims: Sentencing Act, s 3A. The offending involved serious sexual offences committed against 14 separate victims in circumstances where the applicant had gained the victims' trust and engaged in manipulative, exploitative and controlling behaviour towards them. The offences were not spontaneous or isolated. The offences committed against victims 4, 6, 9, 11 and 12 involved the infliction of pain to the victims. Some of the offences occurred in the victims' homes, which is an aggravating factor. This applies to counts 1, 20, 21, 23, 24, 25, 26, 27, 28, 29: Sentencing Act, s 21A(2)(e)(b).
I have had regard to the victim impact statements from seven of the victims describing the adverse effects of the offending on each of them in their personal life and their relationships with other people. Sexual offences of this type committed against 14 separate victims, aged between 15 years and 28 years, cause considerable harm that may be expected to affect each of them for life.
I have considered the applicant's subjective case. The relevant parts of Ms Hare's report have been referred to above at [59]-[65]. I have taken into account his Honour's findings and observations which are summarised at [71] above, including the reduced weight that can be given to the applicant's good character, given the history of offending against 14 victims over a period of approximately four years; that there was little by way of contrition or remorse other than the applicant's plea of guilty; and, the applicant's guarded prospects of rehabilitation, and the picture regarding rehabilitation is very bleak.
The evidence of the applicant's custodial conditions, given certain restrictions in early 2022 arising from the Covid-19 pandemic, has been referred to at [165] above. This is a relevant matter to take into account on sentence.
I decline to make a finding of special circumstances. First, I do not consider that the fact that the offender is serving imprisonment for the first time justifies such a finding in this case. As Bellew J said in R v Lau [2022] NSWCCA 131 at [94], citing Collier v R [2012] NSWCA 213: The question of special circumstances is primarily directed to whether a longer period on parole is likely to assist in the offender's successful rehabilitation and re-integration into the community. (Footnote omitted)
Second, I am not persuaded that the accumulation upon the sentence, or the applicant's need for increased supervision in order to address his high level of treatment needs justify a lowering of the non-parole period below the statutory ratio in this case: R v Simpson at [73]. Given that the applicant is to be sentenced to a lengthy term of imprisonment, a longer than usual parole period is neither necessary nor desirable in respect of the applicant. The parole period provided by the statutory ratio will provide a period of more than sufficient length to meet the needs of parole.
By reference to the Judicial Commission sentencing statistics, the applicant says that the aggregate sentence can be fairly described as "crushing", given that for s 61I offences (sexual intercourse without consent), in 3 cases a head sentence of greater than 15 years was imposed in a sample size of 135 cases and the longest sentence imposed was 20 years imprisonment, and for s 61J offences (aggravated sexual assault), in 7 cases a head sentence greater than 20 years was imposed in a sample size of 104 cases, and the longest sentence imposed was 38 years imprisonment with a non-parole period of 28 years (in respect of which the decision is not available).
The Crown correctly responds that this analysis is flawed and of little assistance where, the aggregate sentence has been imposed for a multiplicity of serious offending. In DV v R [2017] NSWCCA 276 at [277], N Adams J observed that given the need for totality principles to be considered when an aggregate sentence is under challenge, the relevant JIRS statistics, which are confined to the principal offence for which a person has been sentenced, provide little assistance. See also GW v R [2018] NSWCCA 79 at [39] (Fullerton J, Hoeben CJ at CL and Davies J agreeing), and Why v R [2017] NSWCCA 101 at [33]-[34] (Hoeben CJ at CL, Walton and R A Hulme JJ agreeing).
It is appropriate to impose an aggregate sentence. After applying the 25 per cent discount for the pleas of guilty, the individual sentences that I would indicate in accordance with s 53A of the Sentencing Act, including the indicative non-parole periods, where a standard non-parole period applies to the offence, are as follows: Indicative Indicative Victim Offence Starting point sentence Non-Parole (Count) Crimes Act 1900 (NSW) (pre-25% (post 25% Period discount) discount) (where applicable) 1 66C(3) 2Y 1Y 6M - 1 (Sexual intercourse with person between 14 and 16) 2 66EB(2) 3Y 2Y 3M - (Procure child for unlawful sexual activity) 3 66C(3) 3Y 2Y 3M - (Sexual intercourse with person between 14 and 16) 2 66I 8Y 6Y 4Y 6M 4 (Sexual intercourse without consent) 5 66I 8Y 6Y 4Y 6M (Sexual intercourse without consent) 3 61J(1) 9Y 6Y 9M 5Y 6 (Aggravated sexual assault (in company) 4 61J(1) 9Y 6Y 9M 5Y 7 (Aggravated sexual assault (deprivation of liberty)) 8 61J(1) 10Y 7Y 6M 5Y 7M (Aggravated sexual assault (deprivation of liberty) ) 9 61J(1) 12Y 9Y 6Y 9M (Aggravated sexual assault (deprivation of liberty)) 5 66I 6Y 4Y 6M 3Y 4M 10 (Sexual intercourse without consent) 11 66I 8Y 6Y 4Y 6M (Sexual intercourse without consent) 12 66I 9Y 6Y 9M 5Y (Sexual intercourse without consent) 13 66I 10Y 7Y 6M 5Y 7M (Sexual intercourse without consent) 6 66I 6Y 4Y 6M 3Y 4M 14 (Sexual intercourse without consent) 15 66I 9Y 6Y 9M 5Y (Sexual intercourse without consent) 7 66I 4Y 3Y 2Y 3M 16 (Sexual intercourse without consent) 17 66I 6Y 4Y 6M 3Y 4M (Sexual intercourse without consent) 8 61L 2Y 8M 2Y - 18 (Indecent assault) 19 66I 8Y 6Y 4Y 6M (Sexual intercourse without consent) 9 61J(1) 10Y 7Y 6M 5Y 7M 20 (Aggravated sexual assault (inflict actual bodily harm)) 21 66I 8Y 6Y 4Y 6M (Sexual intercourse without consent) 10 66I 6Y 4Y 6M 3Y 4M 22 (Sexual intercourse without consent) 11 66I 6Y 4Y 6M 3Y 4M 23 (Sexual intercourse without consent) 24 66I 8Y 6Y 4Y 6M (Sexual intercourse without consent) 25 66I 9Y 6Y 9M 5Y (Sexual intercourse without consent) 26 66I 9Y 6Y 9M 5Y (Sexual intercourse without consent) 12 66I 6Y 4Y 6M 3Y 4M 27 (Sexual intercourse without consent) 28 66I 8Y 6Y 4Y 6M (Sexual intercourse without consent) 29 66I 9Y 6Y 9M 5Y Between the sets of offending, (Sexual intercourse without consent) 13 61L 3Y 2Y 3M - 30 (Indecent assault) 31 66I 8Y 6Y 4Y 6M (Sexual intercourse without consent) 14 61L 2Y 1Y 6M - 32 (Indecent assault) 33 61L 2Y 1Y 6M - (Indecent assault)

[34]

In arriving at an aggregate sentence, it is necessary to have regard to notional accumulation, concurrency, and totality. How such issues should generally be approached when sentencing for multiple offence is explained in the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]. It is necessary that the aggregate sentence reflect the total criminality involved: Noonan at [41]; Aryal at [50]. Here, there are 14 victims of separate episodes of serious sexual offending, and it is important for the sentence actually imposed to recognise that 14 individuals have been victimised by the offending conduct.
Further, it is necessary to keep in mind "the need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences": R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15] (Spigelman CJ, Whealy and Howie JJ).
Given the multiple offending and multiple offences against most of the victims, there are two aspects of the consideration of notional accumulation and concurrency.
First, the applicant's sexual offences against 14 separate victims are discrete and independent criminal acts, and the offending against one victim cannot comprehend the criminality of the other. There should be considerable notional accumulation as between the 14 separate episodes of offending.
Second, for the separate victims of multiple offending it is necessary to consider notional concurrency and accumulation as between the separate offences committed against the same person, taking into account that: 1. for the offences which are part of a single episode of criminality with common factors such as timing and location, some slight partial accumulation is appropriate to reflect the total criminality involved in each offence. Subject to the additional considerations referred to below, this applies to all the counts except counts 32 and 33 (victim 14), as to which see (2) below; 2. for the offences the subject of counts 32 and 33 (victim 14), given the relative seriousness of the offences, the total criminality involved would be reflected in wholly concurrent sentences; 3. for the offences which are part of a single episode of criminality but some of the offences lack common factors such as time and location, some additional partial accumulation for the later offence upon the earlier offences is appropriate. This applies to count 5 (victim 2), count 9 (victim 4), and count 13 (victim 5); 4. for the offences which are separate episodes against the same person, as in the case of counts 1, 2 and 3 (victim 1), some appreciable accumulation is appropriate to reflect the total criminality involved; and 5. for the offences which are part of the same episode and are inherently serious or the offending involves the infliction of pain, some additional partial accumulation for such offences upon the other offences against the same person is warranted for the gravity of such offences. This applies to counts 7, 8 and 9 (victim 4), count 15 (victim 6), counts 20 and 21 (victim 9), counts 24, 25 and 26 (victim 11), and counts 27, 28 and 29 (victim 12).
Given the nature of the applicant's offending, the length of time over which it occurred, the age of the victims, and his selfish disregard for the victims, the applicant's offending was of the most reprehensible kind. His Honour correctly observed that the applicant's offending was depraved and despicable.
Nevertheless, applying the principle of totality, I have concluded that a lesser sentence is warranted to maintain an appropriate relationship between the totality of the criminality involved in the 14 separate episodes of offending and the totality of the aggregate sentence to be imposed for those offences. Further, in arriving at an aggregate sentence, I have allowed some limited mitigation in the prima facie length of the sentence to ensure that the aggregate sentence is not a crushing sentence on a relatively young offender in the sense that it would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 304 (Dawson and Gaudron JJ) and 308 (McHugh J).
In my view, the applicant should be sentenced to an aggregate term of imprisonment of 35 years commencing on 14 January 2017 with a non-parole period of 26 years 3 months that would expire on 13 April 2043, with the balance of term expiring on 13 January 2052.

[35]

Conclusion

I propose the following orders: 1. Grant leave to appeal against sentence, including an extension of time to appeal. 2. Appeal allowed in part. 3. The sentence imposed in the District Court on 16 August 2020 is quashed. 4. In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 35 years commencing on 14 January 2017 with a non-parole period of 26 years 3 months expiring on 13 April 2043, with the balance of term expiring on 13 January 2052.
N ADAMS J: I have had the considerable advantage of reading the judgment of Gleeson JA in draft. I agree with the orders proposed by his Honour for the reasons provided.
Although it was not initially relied upon as a ground of appeal, the Crown quite properly drew the applicant's attention to the fact that the starting point for the indicative sentence on count 18 (before the application of the 25% discount for the early plea of guilty), was higher than the maximum penalty. The sentencing judge had assessed that offence as being below mid range seriousness, thus it is to be inferred that he must have misapprehended the maximum penalty for an offence contrary to s 61L of the Crimes Act 1900 (NSW). The Crown accepted that this was an error but contended that it was not a "Kentwell" error (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37) such as to justify the intervention of this court to re-sentence the applicant. I agree with Gleeson JA that the error had the capacity to influence the sentence for the reasons I stated in Ibbotson (a pseudonym) v R [2020] NSWCCA 92. Accordingly, this court is required to re-sentence the applicant.
As for ground 1, I agree with his Honour that neither the language of s 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW) ("the Sentencing Act"), nor any principle derived from the decisions considered by Gleeson JA, support a proposition that when a sentencing judge imposes an aggregate sentence for multiple offences and multiple complainants he or she is required to set out the degree of concurrency and accumulation of the indicative sentences relating to each complainant and address the issue of notional cumulation between those complainants.
It is to be accepted that in some cases sentencing judges will provide an explanation in broad terms as to how the question of totality was applied; Beech-Jones J did so when re-sentencing the applicant in Young (a pseudonym) v R [2021] NSWCCA 163 and Gleeson JA has done so in re-sentencing the applicant in this case. But the fact that some judges may choose to do so does not mean that House v King error will be established if a sentencing judge fails to do so: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505.
The balance that must be struck in all sentencing cases where an offender is being sentenced for multiple serious offences involving numerous victims is that identified by this court (Spigelman CJ, Whealy and Howie JJ) in R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [17] and [18]. On the one hand, the court must have regard to the fact that an extremely long sentence may be "crushing" upon an offender, yet on the other hand, the court must avoid any suggestion that the offender is being offered "some kind of a discount for multiple offending". As I observed in Davidson v R [2022] NSWCCA 153 ("Davidson") at [330]: "In any case concerning multiple victims the proper application of the totality principle will invariably mean that an offender will serve less time in custody for the criminality pertaining to each count and each victim than would be the case had there only been one victim and/or one charge. This consequence of the proper application of the totality principle may well leave victims of crime feeling that the offender has received little additional punishment in relation to the offences committed on them". (Emphasis in original.)
It is pertinent to note that the applicant does not make complaint under ground 1 as to the application of the totality principle per se; only as to the lack of transparency in its application. The transparency contended for on behalf of the applicant under this ground would no doubt have highlighted to the 14 victims the relatively short time the applicant would be serving in custody in relation to the offences committed against each of them (consistent with the proper application of the totality principle).
As for ground 2, I too am satisfied that, having regard to the reasons of the sentencing judge as a whole, his Honour complied with the requirement in s 54B(5) of the Sentencing Act. As for the complaint that for some of the indicative sentences his Honour varied the statutory ratio in ss 44(2) and 44(2B) of the Sentencing Act without explaining why he did so, I accept the Crown submission that this was most likely the result of arithmetic error rather than any deliberate decision. In any event, the requirement in ss 44(2) and 44(2B) applies to sentences and aggregate sentences respectively; there is no requirement to find special circumstances before varying the ratio between a non parole period and head sentence for an indicative sentence.
As for the re-sentencing of the offender, I too would arrive at a finding of objective seriousness on count 19 higher than that of the sentencing judge. As I observed in Tomlinson v R [2022] NSWCCA 16 at [251], this court is permitted, "in exceptional cases," to make a different finding on sentence to that made by the primary judge (in the absence of a ground of appeal challenging that finding) so long as procedural fairness is extended to the parties: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32. The Crown invited this court to depart from the finding and procedural fairness was thus afforded to the applicant on that discrete issue.
I agree with the fresh aggregate sentence proposed by Gleeson JA for the reasons provided. Although it is a lower aggregate sentence than that imposed by the sentencing judge, that is simply the result of the independent exercise of the sentencing discretion in this court: it does not reflect a finding that the aggregate sentence imposed by the sentencing judge was manifestly excessive. Although ground 3 contended that the aggregate sentence imposed was manifestly excessive, it was not necessary to consider that ground given the need to re-sentence the applicant in any event.
Given that I am not satisfied that the aggregate sentence imposed was manifestly excessive, I would not categorise it as "crushing" for the reasons I explained in Davidson at [310]-[322]. As I observed at [319] in Davidson, an offender sentenced to a lengthy term of imprisonment may well consider the sentence to be "crushing" but in many cases a long sentence may be the proportionate response to the circumstances of that case.
One of the reasons that I have arrived at an aggregate sentence which is lower than that imposed by the sentencing judge flows from the fact that the applicant was sentenced on 16 August 2018. At that time, the sentencing judge could not have known, as this court now does, that the applicant would spend the years of the COVID-19 pandemic in the onerous conditions he did.
IERACE J: I also agree with the orders proposed by Gleeson JA and his Honour's reasons, and N Adams J's additional observations.

The suggested tension between Vaughan v R and Lee v R is also addressed in Noonan v R, where Beech-Jones J concluded that there was no divergence in the authorities, giving the following reasons at [31]-[33]: [31] On its face, there is a tension between the emphasised portion of this passage and the statement by Johnson J in Vaughan v R [2020] NSWCCA 3 at [91] ("Vaughan") that the "principles of sentencing concerning accumulation and concurrency at general law, as explained in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, have no application where an aggregate sentence is used by the sentencing Court", although his Honour added that the "principle of totality has operation". In Vaughan, R A Hulme J agreed and added as follows (at [117]): "The applicant's argument proceeds on a premise that the indicated sentence for one offence is "accumulated" upon the sentence for another offence. However, in setting an aggregate sentence, a judge does not need to assess a precise degree of accumulation at all. The judge simply determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending. Quite commonly, there are references to there being "notional accumulation" - but if such a reference is apt at all, sight should not be lost of the fact that it is truly something that is "notional"." [32] His Honour recently restated this in Aryal v R [2021] NSWCCA 2 at [46] to [47]. [33] For my part, I consider that on closer analysis there is no divergence in these authorities. The starting point is that the subject matter of an application for leave to appeal against an aggregate sentence is the aggregate sentence itself, not any indicative sentence. Next, it is necessary to identify the error complained of in the fixing of the aggregate sentence. If the complaint is an error such as a failure to apply the totality principle then an appellant may seek to deploy a comparison between the indicative sentences and the total aggregate sentence to argue that the principle was misunderstood or misapplied such that an error has been demonstrated. For example, if there were three related offences with the indicative sentence for each being 2 years imprisonment and the total aggregate sentence was 6 years imprisonment then it might be inferred that the sentencing judge failed to apply the totality principle. In that case, one of the forms of error discussed in House v R (1936) 55 CLR 499; [1936] HCA 40 would be established even though the aggregate sentence was not itself manifestly excessive (namely a failure to take "into account some material consideration": House v R at 505). However, any analysis that seeks to reconstruct some precise starting and end point for the indicative sentences in order to show error in the fixing of the aggregate sentence is misconceived as aggregate sentences were intended to avoid sentencing judges undertaking that very process. It is to that proposition which I understand the above passages from Vaughan were directed and I did not intend to suggest the contrary by the emphasised comments in Lee set out above. That is how N Adams J reconciled her statements in Kliendienst with Vaughan (Kliendienst at [100]) and I respectfully agree with her Honour. I note that in imposing an aggregate sentence in R v Stoupe [2015] NSWCCA 175 ("Stoupe"), Johnson J considered "notional issues of accumulation, concurrency and totality for the purpose of reaching the aggregate sentence to be imposed" (at [128]).

Benn v R

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