Bonwick v R

Court of Criminal Appeal (NSW)|2010-08-09|Before: James J, Davies J, McClellan CJ, Davies JJ, Clellan CJ

CITATION: Bonwick v R [2010] NSWCCA 177 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Davies J at 3

DECISION: (1) Leave to appeal granted. (2) Appeal allowed. (3) Quash the sentences imposed in the District Court. (4) Sentence the Appellant as follows - Count 2: Appellant to enter a bond to be of good behaviour for 12 months commencing 3 November 2009 - Count 3: Appellant is sentenced to a fixed term of imprisonment for 3 months commencing on 3 November 2009 and expiring on 2 February 2010. Count 4: Appellant is sentenced to a non-parole period of 9 months to commence on 3 November 2009 and to expire on 2 August 2010 with an additional term of 9 months to commence on 3 August 2010 and to expire on 2 May 2011 - Count 5: Appellant is sentenced to a non-parole period of 12 months to commence on 3 November 2009 and to expire on 2 November 2010 with an additional term of 12 months to commence on 3 November 2010 and to expire on 2 November 2011.

CATCHWORDS: CRIMINAL LAW - sentence - appeal against severity - indecent assault of a child under 16 years - first such offences - offender assessed as borderline mildly retarded - offences could have been dealt with in the Local Court - no regard paid to that principle - whether standard non-parole period displaced consideration of that principle - failure to consider offences separately - sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 Criminal Procedure Act 1986

Ciaron McCullough v R [2009] NSWCCA 94 Collins, Marcus Shane v R [2010] NSWCCA 13 Corby v R [2010] NSWCCA 146 Frigiani v R [2007] NSWCCA 81 HMP v R [2010] NSWCCA 63 MLP v Regina [2006] NSWCCA 271 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 R v Crombie [1999] NSWCCA 297 R v Hanslow [2004] NSWCCA 163 R v Way (2004) 60 NSWLR 168 Regina v AJP (2004) 150 A Crim R 575 Regina v Palmer [2005] NSWCCA 349 Regina v Said El Masri [2005] NSWCCA 167 Walton v R [2009] NSWCCA 243

PARTIES: Craig Thomas Bonwick (Appellant) Regina (Respondent)

COUNSEL: R Burgess (Appellant) V Lydiard (Respondent)

SOLICITORS: Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Respondent)

18 - IN THE COURT OF CRIMINAL APPEAL 2009/9177

Judgment 1 McCLELLAN CJ at CL: I agree with Davies J. 2 JAMES J: I agree with Davies J. 3 DAVIES J: On 21 July 2009 the Applicant was indicted on the following offences:

That Craig Thomas BONWICK on the 14th day of March 2009, at HILLSTON, in the State of New South Wales, did have sexual intercourse with NP who was at that time under the age of ten years, to wit, of the age of 7 years.

That Craig Thomas BONWICK between November and December 2008, at HILLSTON, in the State of New South Wales, did assault NP a person then under the age of 10 years, to wit, 7 years of age and at the time of such assault did commit an act of indecency on the said NP.

That Craig Thomas BONWICK on the 14th day of March 2009. at HILLSTON, in the State of New South Wales, did assault NP a person then under the age of 16 years, to wit, 7 years of age and at the time of such assault did commit an act of indecency on the said NP.

That Craig Thomas BONWICK on the 14th day of March 2009, at HILLSTON, in the State of New South Wales, did assault NP a person then under the age of 16 years, to wit. 7 years of age and at the time of such assault did commit an act of indecency on the said NP.

That Craig Thomas BONWICK on the 14th day of March 2009, at HILLSTON, in the State of New South Wales, did assault NP a person then under the age of 16 years, to wit, 7 years of age and at the time of such assault did commit an act of indecency on the said NP. 4 Count 1 carried a maximum penalty of 25 years imprisonment with a standard non-parole period of 15 years. Counts 2, 3, 4 and 5 carried a maximum penalty of 10 years imprisonment with a standard non-parole period of 8 years. 5 The Applicant pleaded not guilty to Count 1 but guilty to Counts 2, 3, 4 and 5. That guilty plea was accepted by the Crown in full satisfaction of the indictment. 6 On 14 December 2009 her Honour Judge Sweeney sentenced the Applicant as follows: Count 2: Non-parole period of 10 months to commence on 3 November 2009 and to expire on 2 September 2010. Additional term of 5 months to commence on 3 September 2010 and to expire on 2 February 2011.

Count 3: Non-parole period of 15 months to commence on 3 May 2010 and to expire on 2 August 2011. Additional term of 5 months to commence on 3 August 2011 and to expire on 2 January 2012.

Count 4: Non-parole period of 18 months to commence on 3 May 2010 and to expire on 2 November 2011. Additional term of 6 months to commence on 3 November 2011 and to expire on 2 May 2012.

Count 5: Non-parole period of 18 months to commence on 3 May 2010 and to expire on 2 November 2011. Additional term of 12 months to commence on 3 November 2011 and to expire on 2 November 2012.

Effective Sentence: Non-parole period of 2 years to commence on 3 November 2009 and to expire on 2 November 2011. Additional term of 1 year to commence on 3 November 2011 and to expire on 2 November 2012. 7 By his Notice of Appeal the Applicant gave notice that he intended to rely upon these grounds: 1. The individual sentences and the effective sentence are manifestly excessive in that her Honour: (i) failed to appropriately consider and impose non-custodial sentences, or, in the alternative; (ii) erred in imposing custodial sentences which were manifestly excessive. 8 At the hearing the Applicant's counsel raised another matter which must be taken as an application for leave to add a further ground as follows: 2. Failing to take into account that the charges could have been dealt with in the Local Court and to have regard to the maximum penalty in such a case. 9 No final application was made to amend the grounds of appeal but since no objection was made by the Crown to submissions being put forward on that issue it is appropriate that leave should be granted to add that ground.

The facts 10 The facts and circumstances giving rise to the offences are set out by her Honour as follows: The first offence was that between November and December 2008 at Hillston Mr Bonwick did assault NP, a person then under the age of 10 years, being seven years of age, and at the time of such assault did commit an act of indecency on the said NP. That was count two in the indictment.

Counts three, four and five were all in the same terms, that on 14 March 2009 at Hillston, Mr Bonwick did assault NP, a person the under the age of 16 years, being seven years of age, and at the time of such assault did commit an act of indecency on NP.

The maximum penalty for each of those offences is 10 years imprisonment and there is also prescribed a standard non-parole period of eight years imprisonment for offences in the mid-range of seriousness of offences of that kind when a person is sentenced after a trial. The fact that Mr Bonwick pleaded guilty to the offences provides a reason to depart from the standard non-parole period, although it must not be lost sight of and remains relevant as a reference point or guidepost. The assessment of the objective seriousness of the offences is another reason for departing from the standard non-parole period in this case.

The sentence proceeded on the basis of agreed facts. They were that three offences occurred on 14 March 2009 when the victim, NP and his family were at a picnic area with family and friends and Mr Bonwick was also present. He and the victim left the company of the other persons for a while. After the victim's mother was reunited with him on that day he disclosed to her the previous offence which had occurred at a place where Mr Bonwick was staying with family, a place called Mountain Creek in the Hillston area, in a small holiday house where he was living.

The facts of that offence were that in Mr Bonwick's accommodation he told the child to jump on the bed, which NP did, and Mr Bonwick then kissed the victim to the stomach and chest area over the top of the child's shirt for a short time. That was Count two on the indictment.

Of the offences on 14 March, Count three involved, after Mr Bonwick and the child were out of sight from the other people at the picnic, Mr Bonwick unclipping the child's life jacket and beginning to kiss him on the chest. Mr Bonwick is said to have asked the child, "Are you scared of me?" and the child said, "No." That was Count three on the indictment.

Count four was what happened next. Mr Bonwick then pulled the child's board shorts a little bit down and kissed him on the buttocks and lower back. That was Count four on the indictment.

Count five was that Mr Bonwick placed his finger in the area of the child's anus.

Subjective features 11 The Applicant was born on 6 September 1966 and was aged 42 and 43 at the time of the commission of the offences. 12 He was raised by foster parents in Griffith. He was placed in special classes at school for slow learners. He left school at the age of 15 and thereafter worked as a farm labourer for a foster brother. He has otherwise worked in casual labouring work. 13 He was examined by Dr Alex Galandis, a forensic clinical psychologist. Dr Galandis carried out a psychometric assessment of the Applicant which showed that he had a verbal IQ of 82, an assessment that approached the borderline mildly retarded range. Dr Galandis found that his intellectual functions were fixated equivalent to that of an average 13 year old child and that he had concrete thinking. This was consistent with a psychiatric report from the Prison Medical Service in 1988 which noted that he "appears to be functioning at borderline retarded level of intelligence". 14 He had no extensive criminal history. He was convicted of some property offences including break, enter and steal, stealing and unlawfully using motor vehicles on 4 separate occasions from 1986 to 1988. He had 2 other minor offences in 1986 in Queensland and in 2007 in Victoria. There were no prior sexual offences. 15 Dr Galandis said in his report that the Applicant did not appear to have the behavioural patterns of a typical paedophile since he had reached the age of 43 years without a history of sexual offences. Dr Galandis said that paedophilia usually began at a young age with chronic re-offending. Her Honour noted that opinion of Dr Galandis. 16 In addition, Dr Galandis said that although the Applicant approached borderline mental retardation he was fit to stand trial as he had sufficient judgment and insight to process the charges he was facing. 17 The report from the Probation and Parole Service assessed the Applicant as a suitable candidate for community-based supervision and a Community Service Order..

Remarks on sentencing 18 Her Honour considered the objective seriousness of the offences as follows: In terms of Count two, which involved kissing the child on the stomach and chest over the top of the child's clothing for a short time, given that it involved contact over clothing rather than under clothing on bare skin, and that it did not involve the genital area, I would assess that offence as in the low range of seriousness.

Count three, which involved kissing the child on the chest, I would also assess as in the low range of seriousness by reason of the body part involved.

Count four, which involved kissing on the buttocks and lower back, I assess as more serious than counts two and three by reason of the buttocks having a sexual connotation, but I would still assess that as in the low range.

Count five, closer to the child's anus which also has a sexual purpose or connotation, is clearly the most serious of the offences, but I would assess that as still below the mid-range of objective seriousness. 19 Her Honour noted the opinions expressed by Dr Galandis that are mentioned above. She noted the Pre Sentence Report from the Probation and Parole Service which suggested that alcohol was a factor in the offences in that he had been drinking the night before and on the day of 14 March 2009 when the offences referred to in Counts 3, 4 and 5 were committed. Her Honour said that was a matter to be taken into account but was not a mitigating factor. Her Honour also noted the view of the Probation Officer that the Applicant would benefit from being assessed by the Forensic Psychology Services with a view to undertaking appropriate interventions to address his offences. She noted that the Applicant was willing to attend such services for assessment. She noted the Probation Officer's comment that the Applicant had expressed regret for his offences. 20 Her Honour noted that although the Applicant pleaded guilty to Counts 2, 3, 4 and 5 on the day his trial was due to commence, he had advised the Crown earlier of his intention to plead guilty to those offences. There was the more serious offence in Count 1 on the indictment. In those circumstances her Honour said that the pleas warranted a discount of 15%. 21 Her Honour said there was insufficient material to make a finding about the Applicant's prospects of rehabilitation or likelihood of re-offending, particularly since he did not give any evidence in the proceedings. Her Honour noted that he had told Dr Galandis that being charged had a salutary effect and that that may bode well for prospects of rehabilitation. 22 The Crown submitted to her Honour that the Court should consider custodial sentences. The Applicant submitted that options other than imprisonment should be considered. 23 Her Honour said that although she assessed the offences as in the low range of seriousness and below the mid-range she was of the view, given the number of offences, no sentence other than a full-time custodial sentence would be appropriate. Her Honour said that it was appropriate to impose concurrent sentences for Counts 3, 4 and 5 (which were relatively contemporaneous) and that partial accumulation in relation to Count 2 was appropriate.

(1) The individual sentences and the effective sentence are manifestly excessive in that her Honour (i) failed to appropriately consider and impose non-custodial sentences

24 The Applicant correctly submitted that a non-custodial sentence is not precluded by reason only of the fact that the offence is one for which there is a standard non-parole period prescribed: R v Way (2004) 60 NSWLR 168 at [114] - [116]. 25 The Applicant submitted that individually, none of the offences justified a custodial sentence, and that the only reason her Honour gave for imposing a full-time custodial sentence was the number of offences. The Applicant acknowledged that where there are a number of relatively minor offences not individually calling for custodial sentences, there may come a point where requirements of deterrence and retribution require that the later offences carry a custodial sentence. The Applicant submitted that that was not the situation in the present case. 26 The Applicant pointed to the following matters that he said justified a non- custodial sentence. There were 2 brief isolated incidents where the 4 offences were committed. The offences of 14 March 2009 (Counts 3, 4 and 5) occurred over a short period of time. The Applicant was not on conditional liberty at the time, his history did not show a continuing disobedience to the law, a dangerous propensity or demonstrate the need for condign punishment. Further, requirements of general deterrence carried less weight because the Applicant suffered from an intellectual disability. 27 The Applicant submitted that there were other sentencing options available particularly because he was assessed by the Probation and Parole Service as a suitable candidate for community based supervision. 28 The Applicant further submitted that even if it was open to her Honour to impose a custodial sentence for Counts 3, 4 and 5 because of the number of offences, that did not justify the imposition a sentence of imprisonment for Count 2. 29 The Crown pointed particularly to the standard non-parole period and regard which must be had to that guide post in accordance with what was said in Corby v R [2010] NSWCCA 146 at [71]: This Court has adverted to the "somewhat curious and inconsistent approach of the legislature" in the specification of standard non-parole periods for certain offences, where the standard non-parole period is not too distant from the maximum penalty for the offence: R v Dagwell [2006] NSWCCA 98 at [38]. Although it is difficult to reconcile the two statutory guideposts in the form of the maximum penalty and the standard non-parole period for a s.61M(2) offence, it remains the position that the legislature has made statutory provision for a standard non-parole period and that it is necessary for sentencing courts to give proper attention to the standard non-parole period, particularly when the term of that period approaches the maximum term provided for the offence: Hudson v R [2008] NSWCCA 90 at [28]. 30 In Pearce v The Queen (1998) 194 CLR 610 at 624 McHugh, Hayne and Callinan JJ said: 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. 31 Her Honour noted that the offence in Count 2 should be regarded as being in the low range of seriousness, noting that it involved kissing the child on his stomach and chest through his clothing and did not involve the genital area. 32 This was the first offence in time and ought to have been considered, in the first instance, in isolation from the later offences. Although by reason of the plea it must be taken that the offence was committed, the circumstances of the offence mean that it is at the bottom end of the range seriousness. Indeed, but for the plea of guilty, there might have been some doubt that the offence was proved on the basis of the agreed facts. Despite the statutory non-parole period of 8 years (which in any event was here only useful as a guidepost) her Honour ought to have given consideration to whether a non-custodial sentence would, in the circumstances have been appropriate for that offence alone. 33 It does not appear that her Honour engaged in the process regarded as appropriate by Pearce. Rather, her Honour simply noted that there were 4 offences and that, she said, justified a custodial sentence, it would seem, overall. In my opinion, that amounted to an error justifying intervention by this Court. Because her Honour accumulated Counts 3, 4 and 5 on the sentence she gave for Count 2, the result is that the overall effective sentence needs to be reconsidered.

(1) The individual sentences and the effective sentence are manifestly excessive in that her Honour: (ii) erred in imposing custodial sentences which were manifestly excessive 34 Quite apart from her Honour's failure to consider Count 2 as an individual offence without regard to the later offences, it is submitted that a sentence of 10 months imprisonment with an additional term of 5 months after allowing for a 15% discount for a plea of guilty was manifestly excessive. In Corby Johnson J said: [72] It is of considerable significance when assessing the objective seriousness of an indecent assault against a child to consider the actual character of the assault, including the degree of physical contact involved: R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at 159-160 [31]. 35 The incident that gave rise to Count 2 was the first offence of this type committed by the Applicant. It was of a very low level of objective seriousness committed by a person assessed as borderline retarded. Despite the existence of a standard non-parole period it called for a non-custodial sentence. Any term of imprisonment was excessive. A term of 10 months with a non-parole of 15 months was manifestly excessive.

Failing to take into account that the charges could have been dealt with in the Local Court and to have regard to the maximum penalty in such a case. 36 Counts 2, 3, 4 and 5 were offences contrary to s 61M(2) Crimes Act 1900. The offence charged under Count 1 was an offence contrary to s 66A(1) Crimes Act. 37 Section 260(1) Criminal Procedure Act 1986 provides: An indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor or the person charged with the offence elects in accordance with this Chapter to have the offence dealt with on indictment.

Clause 2 of Table 1 includes offences under s 61M of the Crimes Act but not under s 66A. 38 Ms Burgess of counsel for the Applicant argued that it may reasonably be inferred that the Applicant was committed to the District Court on all offences because he had been charged with the offence under s 66A. She submitted that had that offence not been charged the objective seriousness of the offences was likely to have meant they would have been dealt with in the Local Court. 39 Section 267(2) prescribes the maximum term of imprisonment that the Local Court can impose for a Table 1 offence dealt with in the Local Court as a period of 2 years imprisonment. Section 54D(2) Crimes (Sentencing Procedure) Act 1999 provides that standard non-parole periods do not apply if the offence is being dealt with summarily. 40 Ms Burgess further submitted that the significance of Counts 2, 3, 4 and 5 being able to be dealt with in the Local Court is that the District Court Judge is permitted to have regard to the maximum penalty that can be imposed in the Local Court when considering the appropriate sentence. 41 In Regina v Palmer [2005] NSWCCA 349 Hall J (with whom Grove J and Smart AJ agreed) dealt with a ground of appeal that the sentencing judge had failed to take into account the fact that the offences were capable of summary disposal. He said: [14] In dealing with ground 1, it is appropriate to make two preliminary observations: (a) there is no specific statutory requirement or obligation to bring into account in determining the appropriate sentence for an offence, the fact that a matter may have been dealt with summarily had no election otherwise been made; (b) as the Crown, however, has observed, to the extent that the Crimes (Sentencing Procedure) Act 1999 otherwise obliges a sentencing judge to have regard to the general law in determining the appropriate sentences (s.21A(1)), then a number of propositions may be taken from several judgments of this Court.

[15] The written submissions on behalf of the applicant and those also on behalf of the respondent refer to a number of decisions of this Court. For the purposes of this application, they are stated in short form as a series of propositions or principles as follows: (a) The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Regina v. Crombie [1999] NSWCCA 297 at [16]; Regina v. LPY (2002) 136 A. Crim. R. 237 at 240 and Regina v. El Masri [2005] NSWCCA 167 at [30]. (b) Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge: Crombie (supra) at [15]. (c) Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account . Depending upon the objective and the subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie ( supra) at [16]. (d) Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: Regina v. Doan (2000) 50 NSWLR 115. (e) Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked: Regina v. Depoma [2003] NSWCCA 382 at [17]. (f) Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case - if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case: El Masri (supra) at [45] per Johnson, J. (with whom Hunt, AJA. and Hulme, J. agreed). (emphasis added) 42 This distillation of the principles has been followed more recently in Ciaron McCullough v R [2009] NSWCCA 94 at [25] and in Collins v R [2010] NSWCCA 13 at [16]. 43 Whilst it is clear that there is no obligation on the sentencing Judge to regard himself or herself limited by the maximum penalty available in the Local Court, two relevantly important principles emerge from the cases. The first is that the extent of the criminality is an important consideration in having regard to the Local Court penalty: R v Hanslow [2004] NSWCCA 163 at [21]; Regina v Said El Masri [2005] NSWCCA 167 at [29] and McCullough at [26]. Secondly, where it appears that the matter of the Local Court penalty has been entirely overlooked by the sentencing Judge that may properly justify the grant of leave to appeal: R v Crombie [1999] NSWCCA 297 at [16]. 44 In the present case, it is likely that the matter was entirely overlooked by the sentencing Judge because it is accepted that neither counsel drew it to the Judge's attention. Further support for that inference derives from the omission of the sentencing Judge to make any reference to the fact that the offences could have been dealt with by the Local Court and from the length of the sentence imposed for each of the offences. 45 This failure to refer to the Local Court limitation on sentence amounts to an error justifying the intervention of this Court. This is because, as the highlighted passages in Palmer make clear, the fact that the Local Court could have dealt with the matter is a relevant consideration to be taken into account. 46 The more difficult matter to determine is how this principle is impacted by the prescription of a standard non-parole period for the offence. The only cases making reference to the principle that have involved offences with a standard non-parole period have not needed to consider the inter-relationship between these two aspects of the sentencing process: HMP v R [2010] NSWCCA 63; Walton v R [2009] NSWCCA 243; Frigiani v R [2007] NSWCCA 81. 47 In my opinion, the prescription of a standard non-parole period does not displace the principle discussed in Palmer. In general terms, so much is discernible from what the Court said in R v Way at [122] and [130]-[131]. Secondly, in MLP v R [2006] NSWCCA 271 Kirby J (with whom Grove and Hislop JJ agreed), having discussed R v Way and Regina v AJP (2004) 150 A Crim R 575 at [13], said: [33] The non parole period is, of course, but one aspect of the sentence. In respect of an offence where there is a standard non parole period, the sentencing Judge must at some point address the following issues when imposing a custodial sentence: First, what term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? Guidance may be provided by the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct (cf R v Trevenna [2004] NSWCCA 43 , per Barr J; R v George [2004] NSWCCA 247). Secondly, should the offence be characterised as being in the mid range of objective seriousness? That task should be approached in the manner suggested by Simpson J (supra), intuitively evaluating the objective seriousness of the offence and looking to those matters in s 21A, aggravating or mitigating, that relate to the offence (including the offender's state of mind). Matters in s 21A which form part of what is usually termed "the subjective case" of the offender are not relevant to the issue of whether the offence falls within the mid range. If the offence falls within the mid range, the standard non parole period should apply, subject to the remaining issues. Thirdly, are there other reasons in the matters identified in s21A (relating to the offender) for departing from the standard non parole period? The subjective case of the offender (issues such as youth or prospects of rehabilitation (s 21A(3)(h)) may furnish reasons for departing from the standard non parole period. It should be noted that s 21A(1) provides that the matters specifically identified in the subparagraphs of s21A are in addition to any other matter that the Court is required or permitted to take into account under any Act or rule of law. The fact that the offender may need to serve his sentence in protection, for instance, although not mentioned in s 21A(3), may be taken into account in determining whether there should be a departure from the standard non parole period. Fourthly, there is the issue of special circumstances. Ordinarily, the non parole period bears a relationship to the term of the sentence defined by s 44(2) of the Crimes (Sentencing Procedure) Act 1999, that is, the non parole period must not be less than three quarters of the term, unless there are special circumstances. The sentencing Judge is therefore required to address that issue. If there is to be an adjustment, then it must not so deplete the non parole period that it is reduced below the minimum term which justice requires the offender to serve ( Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525). (emphasis added) 48 In my opinion, the principle to be derived from Palmer is a rule of law that is to be taken into account. It will have a greater influence in the sentencing as both the objective criminality falls below the mid-range, and as the subjective criminality of the offender assumes more significance: Crombie at [16]. 49 It is not only Count 2 but Count 3 also that the sentencing Judge assessed as being in the low range of seriousness by reason of the body part involved. That assessment was, with respect, correct. In addition, the subjective features of the offender made general deterrence of less weight in the sentencing process. Correspondingly, the limited penalty available if the offences had been dealt with in the Local Court assumed greater significance. 50 Having fallen into error in relation to her sentence for Count 2, the error was perpetuated by the increasing sentences given for Counts 3, 4 and 5 which did nothing more than reflect the increasing seriousness of the latter offences, but which were assessed from the wrong starting point. 51 In my opinion, leave to appeal should be granted and the appeal allowed. This requires this Court to re-sentence the Applicant. In relation to Counts 4 and 5 I find special circumstances in relation to the additional term by reason of the reports from the Probation and Parole Service and Dr Galandis. This Court should impose the following sentences:

Count 2: The Applicant ought to have been convicted and given a bond to be of good behaviour for 12 months commencing on 3 November 2009 and expiring on 2 November 2010.

Count 3: A fixed term of imprisonment for 3 months commencing on 3 November 2009 and expiring on 2 February 2010.

Count 4: A non-parole period of 9 months to commence on 3 November 2009 and to expire on 2 August 2010 with an additional term of 9 months to commence on 3 August 2010 and to expire on 2 May 2011.

Count 5: A non-parole period of 12 months to commence on 3 November 2009 and to expire on 2 November 2010 with an additional term of 12 months to commence on 3 November 2010 and to expire on 2 November 2011.

Appeal allowed.
Quash the sentences imposed in the District Court.

Sentence the Appellant as follows: Count 2: The Appellant to enter a bond to be of good behaviour for 12 months commencing 3 November 2009.

Count 3: The Appellant is sentenced to a fixed term of imprisonment for 3 months commencing on 3 November 2009 and expiring on 2 February 2010. Count 4: The Appellant is sentenced to a non-parole period of 9 months to commence on 3 November 2009 and to expire on 2 August 2010 with an additional term of 9 months to commence on 3 August 2010 and to expire on 2 May 2011. Count 5: The Appellant is sentenced to a non-parole period of 12 months to commence on 3 November 2009 and to expire on 2 November 2010 with an additional term of 12 months to commence on 3 November 2010 and to expire on 2 November 2011.

06/09/2010 - Typographical error - Paragraph(s) page 13 - "regarded" substituted with "retarded". 12/10/2010 - Conform with suppression orders - Paragraph(s) 10

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