Carlton v R

Court of Criminal Appeal (NSW)|2013-12-12|Before: Ward JA, Harrison J, Hulme J, Latham J

Judgment 1WARD JA: I agree with R A Hulme J. 2HARRISON J: I agree with R A Hulme J 3R A HULME J: Adam Rawdon Carlton ("the appellant") was sentenced by his Honour Judge Nield in the District Court on 23 February 2007 for four offences of aggravated sexual intercourse without consent. 4His Honour imposed concurrent terms of imprisonment for 13 years 4 months with non-parole periods of 8 years 6 months. The sentences were specified to commence on 21 August 2005. The appellant will become eligible for release on parole upon the expiration of the non-parole periods on 20 February 2014. The total terms of the sentences will expire on 20 December 2018. 5The offences are contrary to s 61J(1) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 20 years. A standard non-parole period of 10 years applies pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 6The appellant applied for leave to appeal against both conviction and sentence. Leave was granted but the appeal failed: Carlton v The Queen [2008] NSWCCA 244; (2008) 189 A Crim R 332. 7On 5 October 2011 the High Court of Australia delivered judgment in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. This prompted the appellant to apply under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry concerning his sentence. He contended that there was a doubt or question as to a mitigating circumstance in his case, namely that his sentence was infected by error in that undue weight was accorded to the standard non-parole period contrary to the decision in Muldrock. The Attorney General conceded the point. 8Latham J granted the application and, pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act, referred the matter to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW).

Is leave to appeal required and, if so, is an extension of time required? 9The Crown conceded that "Muldrock error" had occurred. But it argued that leave to appeal was required and, because of the lengthy period that had elapsed, an extension of time within which to apply for leave to appeal was also required. 10I digress for a moment to explain how this issue has arisen. That can be best done by quoting from the judgment of Basten JA in Sinkovich v Attorney General of New South Wales [2013] NSWCA 383: [6] Since the judgment in Muldrock, there have been a significant number of cases challenging the approach of sentencing judges who had (correctly at the time) followed the guidance of Way [R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168], which tended to result in higher sentences than would application of the principles laid down in Muldrock. In some cases, such challenges could be dealt with in the ordinary course of an appeal against sentence, within time, under the Criminal Appeal Act 1912 (NSW), s 5. Other cases required an extension of time in which to seek leave to appeal. A third category of cases involved offenders who had already exercised their rights of appeal against sentence prior to the judgment of the High Court in Muldrock. 11The appellant falls within the last of those three categories. According to the submissions for the Crown, the present case is the first to have been referred to this Court under Pt 7 of the Crimes (Appeal and Review) Act. 12The Court has recently dealt with a large number of cases that fall within the second category where an extension of time in which to seek leave to appeal has been required. (More are pending.) The requirement to establish that an extension of time should be granted where the application for leave to appeal is based upon a change in the interpretation of the law relating to sentencing for standard non-parole period offences has been regarded as a not insignificant hurdle facing an appellant for leave to appeal: see, for example, Abdul v R [2013] NSWCCA 247 and Alpha v R [2013] NSWCCA 292. 13Ms Lydiard, counsel for the Crown, sought to explain why the point was being taken in the circumstances of this case: "it just would assist if there was some statement about whether an extension of time and leave to appeal is necessary in matters such as this", there being, according to her research, no authority on the point. 14Mr McLachlan, counsel for the appellant, was taken by surprise by this preliminary issue. It was raised in the written submissions for Crown filed only two days before the hearing. No attempt had been possible to marshal such evidence as may be available to explain the delay, for example, between delivery of the judgment in Muldrock and the filing of the Pt 7 application. The Court indicated at the hearing that leave would be granted for further evidence and submissions to be filed if that became necessary. 15Pt 7 of the Crimes (Appeal and Review) Act provides for the review of convictions and sentences. There are a number of mechanisms for review; the one relevant to the present case is that in Div 3 which provides for applications to the Supreme Court. A successful application may result in either a direction that an inquiry into the conviction or sentence be conducted by a judicial officer (s 79(1)(a)) or referral "of the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912" (s 79(1)(b)). 16Referral of "the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912" is also an available outcome for a successful application via another mechanism provided for review of convictions and sentences, namely by a petition to the Governor under Div 2 (s 77(1)(b)). 17Division 5 deals with matters that may be referred to the Court of Criminal Appeal by various means under Pt 7, including by way of s 77(1)(b) and s 79(1)(b). In relation to cases referred by those two mechanisms, s 86 provides: 86 Reference to Court under section 77(1)(b) or 79(1)(b) following petition to Governor or application to Supreme Court On receiving a reference under section 77(1)(b) or 79(1)(b), the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly. 18The question raised by the Crown in the present case involves the construction of this provision. The Crown points to the fact that if a convicted person appeals against sentence under the Criminal Appeal Act, there is a requirement to obtain leave to appeal and if the proceeding is brought out of time, there is also a requirement to obtain an extension of time. The Crown's contention is, in effect, that there is no reason why these requirements should not also apply in proceedings referred to the Court under Pt 7 of the Crimes (Appeal and Review) Act. 19A person may appeal against his or her conviction as of right on any ground that involves a question of law alone: s 5(1)(a) Criminal Appeal Act. Otherwise, an appeal against conviction and all appeals against sentence can only be made with leave of the Court: s 5(1)(b) and (c). Section 6 then provides how an appeal may be determined. 20Section 86 of the Crimes (Appeal and Review) Act requires the Court to deal with a case referred under ss 77(1)(b) or 79(1)(b) in the same way "as if the convicted person had appealed". If it had been the intention of Parliament that leave would be required, as in the majority of cases coming before this Court, it could be expected that s 86 would say so. 21Referral to this Court under ss 77 and 79 may be seen as circumventing a number of preliminary matters normally required: for example, the filing of a notice of appeal. Indeed, it was held in A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; (2013) 303 ALR 143 at [16] per Bathurst CJ (Johnson and Button JJ agreeing), that aside from there being no requirement for a notice of appeal to be lodged, there was no requirement for any action to be taken by the convicted person at all, the convicted person in that case being long deceased. 22In my view, the process of referral to the Court under Pt 7 circumvents the need for consideration of whether leave should be granted. That makes sense, as someone has already determined that there is merit; otherwise the referral would not have been made. By ss 77(2) and 79(2), referral may only occur if the Minister (s 77) or the Supreme Court (s 79) has been determined: (2) ... that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. 23Although the Court in McDermott was dealing with a different question (whether a right of appeal by a convicted person abates upon death), it is notable that (at [22]) the Chief Justice referred to the words in s 86, "as if the convicted person had appealed", as indicating that "the Court is to treat the appeal as one properly brought and which it had power to deal with under s 6 of the Criminal Appeal Act". Of course, the Court usually only has power to deal with a matter under s 6 if it has first granted any necessary extension of time and leave to appeal. The statement that the Court has power to deal with a referred matter under s 6 supports the proposition that those preliminary matters are by-passed. 24The necessity to seek an extension of time is also circumvented by this referral process. It is difficult to envisage that a matter could come before this Court by way of referral and not be out of time. There is provision in both s 77(3) and s 79(3) for the Governor, Minister or the Supreme Court, as the case may be, to refuse to consider or otherwise deal with a petition or application for a number of reasons, including where the person's appeal rights have not been pursued to finality. Similarly, there is provision in both s 77(3A) and s 79(3A) for consideration of a petition or application to be deferred if the time in which the person may pursue an appeal is still running. 25A decision to refer a matter to this Court under either s 77 or s 79 is discretionary. Where a significant and unexplained delay has occurred, that may well be a relevant matter to be considered in the exercise of the discretion. 26The Crown pointed to a potential anomaly in the way cases in the second and third categories referred to by Basten JA in Sinkovich (at [6]) are dealt with. Where the person's appeal rights have not been exhausted, but an extension of time is required, there is the hurdle of the Court needing to consider the matters relevant to the application of the principle of finality that were listed in the judgment of the Court (Hoeben CJ at CL, Johnson and Bellew JJ) in Abdul at [53]:

the length of and reasons for the delay;
the interests of the community;
the interests of the victim; and
whether substantial injustice would result if an extension of time were refused. 27However, in the case of a person whose appeal rights have been exhausted and who applies to the Supreme Court, all that is necessary to establish, aside from discretionary factors, is a "doubt or question" of the type referred to in s 79(2). I accept that there might well be an anomaly but in practical terms that would only be if the types of matters this Court would consider on an application for an extension of time were not considered by the Supreme Court (or the Minister) as part of the discretionary determination of whether a referral should be made. 28In Sinkovich, Basten JA, in obiter dicta (at [56]-[62]), discussed the relevance of the principle of finality to the exercise of the discretionary power arising under s 79 once what he termed the "condition precedent, or gateway" provision in s 79(2) had been made out. His Honour cited English authority dealing with a statutory scheme similar in scope but not identical in its terms. If that authority were to be applied in New South Wales, it would be to the effect that in considering an application under Pt 7, consideration should be given to the practice of the Court of Criminal Appeal in dealing with out of time appeals as explained in Abdul and Alpha. 29I can see no sensible reason why that approach ought not to be taken in the discretionary aspect of Pt 7 determinations. Basten JA suggested as much at an earlier point in his judgment (at [51]). 30Support for the proposition that leave to appeal, and an extension of time in which to apply for it, are unnecessary in cases referred to the Court under s 79 (and s 77) may be found in a number of such cases previously considered. 31Yin v R [2007] NSWCCA 350 concerned a sentence that was the subject of referral by the Supreme Court pursuant to s 79(1)(b). The offences had been committed in 2002; sentencing took place in 2003; an appeal failed in 2005; a co-offender's appeal succeeded in March 2007; and the offender then made an application pursuant to Pt 7 complaining that he had a legitimate sense of grievance arising from the reduction of the co-offender's sentence. Barr J considered the application and made the referral to this Court on 15 August 2007. His Honour also was a member of the bench that determined the matter in December 2007. His Honour's judgment, with which Mason P and Bell J agreed, contained no mention of leave to appeal or extending time. The judgment commenced: "This is an appeal against sentence ...". 32GAR v R (No 1) [2010] NSWCCA 163 may be regarded as anomalous. It was a referral in relation to conviction and, as it did not fall within s 5(1)(a), a question was raised as to whether leave to appeal was required. In their joint judgment, Tobias JA, Johnson and Rothman JJ did not discuss the issue at any length and did not mention s 86. Their Honours simply said (at [20]) that "[i]n our view the better construction is that leave is required". However, it was unnecessary to express a concluded view as leave was to be granted in any event because the grounds of appeal were arguable. 33In Kearns v R [2011] NSWCCA 103 there was a Ministerial referral in respect of conviction. It was accepted that none of the grounds of appeal involved a question of law alone. Giles JA reviewed some earlier cases which were concerned with referrals under the predecessor to Pt 7 of the Crimes (Appeal and Review) Act, namely Pt 13A of the Crimes Act. (For a detailed review of the history of this legislation, see the judgment of Basten JA in Sinkovich at [33]-[41]). His Honour stated: [18] If leave to appeal is necessary, until leave has been granted there is no appeal. On one view, ss 77(1)(b), 79(1)(b) and 86 dictate that there is an appeal, and the direction to deal with the case "as if the convicted person had appealed against conviction" bypasses any need for leave to appeal under s 5(1). The Criminal Appeal Act then applies as to the Court's powers and in particular in the disposal of the appeal in accordance with s 6 of that Act. On another view, the words "as if the convicted person had appealed against conviction" refer to the convicted person's act of appealing against conviction, which could include any necessary application for leave to appeal, and may not dictate that there is an appeal. The pivotal s 6 of the Criminal Appeal Act , and also s 7, apply where there is "an appeal under s 5(1)", and if a referral bypasses a need for leave to appeal under s 5(1) it may be that there is a difficulty in the application of these provisions; so that ss 77(1)(b), 79(1)(b) and 86 should be understood conformably with the leave requirement in s 5(1). [19] I incline to the view that leave to appeal is not necessary. The leave requirement in s 5(1) acts as a filter, the alternative in that subsection of the trial judge's certificate that it is a fit case for appeal having the same function. The referral by the Minister (s 77) or the Supreme Court (s 79) is made after a petition for review or an application for an inquiry, and the consideration of the petition for review or the conduct of the inquiry takes the place of consideration of an application for leave to appeal and makes inappropriate a superadded need for leave. The referral involves satisfaction that the case is fit to be dealt with as an appeal. 34There followed some discussion about the fact that only one ground was founded upon the referral but further grounds had been added. His Honour cited authority for the proposition that as the "whole case" was the subject of referral, it was necessary for the Court to determine the additional grounds, unless they were thought to be frivolous or vexatious. Ultimately, his Honour said (at [24]) that "if leave to appeal be necessary it should be granted". 35Latham J agreed with Giles JA. Rothman J published separate reasons concerning this issue. In his view, no leave was required in respect of the ground the subject of the referral: "The reference replaces, where it may otherwise have been required, the grant of leave by the Court or the issue of a certificate by the trial judge" (at [119]). His Honour stated (at [125]) that leave was required in the case of all of the other grounds of appeal. But, similar to Giles JA, his Honour concluded (at [126]) by saying that "it is unnecessary to determine the issue finally. If leave were necessary, it should be granted". 36I return to McDermott. In the course of noting a number of matters before announcing his conclusion that the death of Mr McDermott did not prevent the Court's determination of the case following a Ministerial referral, Bathurst CJ stated: [16] Second, s 77(1)(b) of the Act empowers the Minister to refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal. There is no requirement for a Notice of Appeal to be lodged or, for that matter, any action to be taken by the convicted person. As Spigelman CJ said in R v Doyle [2001] NSWCCA 252; (2001) 123 A Crim R 151 at [62]-[63] in respect of equivalent provisions in the Crimes Act, s 5 of the Criminal Appeal Act which confers a right of appeal on a person convicted on indictment, effectively is bypassed. Thus, a reference under the equivalent of s 77(1)(b) of the Act in that case both empowered and required the Court of Criminal Appeal under the s 86 equivalent to deal with the matter on appeal, notwithstanding the fact that it was a summary conviction to which the appeal rights conferred by s 5 of the Criminal Appeal Act would not apply. See also R v Johns [1999] NSWCCA 206; (1999) 110 A Crim R 149 at [5]; R v Pederick (Court of Criminal Appeal, unreported, 21 May 1997) per Hunt CJ at CL; Re Application of Pearson [1999] NSWSC 143; (1999) 46 NSWLR 148 at 157. 37There is a further aspect of the judgment of Spigelman CJ in R v Doyle [2001] NSWCCA 252; (2001) 123 A Crim R 151 that should be noted. The case was concerned with the provisions of the former Pt 13A of the Crimes Act but the terms of the relevant provisions were the same as now found in Pt 7 of the Crimes (Appeal and Review) Act. After the statement at [62] about s 5 of the Criminal Appeal Act being "by-passed" his Honour said: [63] The effect of s 474L [the predecessor to s 86] is that this Court finds its power by going directly to s 6 ...

Conclusion 38In summary, the Court assumed in Yin that the matter before it was an appeal and there was no question about leave (or an extension of time). In GAR (No 1) the Court thought that leave was probably required. But in Kearns, a majority of the Court considered that leave was probably not required (the third member being positive that it was not required in relation to the ground the subject of the referral). Having regard to the judgment of the present Chief Justice in McDermott and the former Chief Justice in Doyle, supported by my own view of the proper construction of the statutory provisions, I am satisfied that no leave to appeal is required in respect of a referral of a case to this Court pursuant to s 77(1)(b) or s 79(1)(b) of the Crimes (Appeal and Review) Act. It follows that no extension of time to seek leave to appeal is required either. 39I would only qualify this conclusion by saying that it is unequivocal in respect of grounds of appeal raising matters that are the subject of the referral. If an appellant seeks to raise additional grounds, I tend to agree with Giles JA in Kearns that the Court is required to consider them unless they are thought to be frivolous or vexatious. I refrain from expressing a concluded view on that aspect given that the point was not argued in the present case.

Facts 40The appellant was convicted after a trial before Nield DCJ in the District Court at Bathurst in 2006. There was no dispute about the facts as recounted in his Honour's reasons for sentence and so I have drawn the following from that source. 41The offences occurred on the one occasion on 20 August 2005 in a house in Canowindra. The appellant had met the 10-year old complainant once or twice before. He went to her home on that day at around lunchtime. She asked him if he would take her to a property outside of town so that she could visit her friend. The appellant knew that the only car available to him was unusable because of a defect. Nevertheless he sought the complainant's father's permission to take her to visit her friend and he agreed. 42The appellant and complainant walked to another house in Canowindra where he obtained a pornographic DVD. They then proceeded towards another house where the appellant was temporarily living. The appellant made a telephone call to the complainant's friend's mother and asked her whether it was all right to bring out the complainant to play with her friend. The mother told him that the friend was away at a sleepover. Rather than taking the complainant back home, he took her to his place. 43After they arrived the appellant injected himself with something that he told the complainant was "speed". He then put on the pornographic DVD and forced her to watch it. He then pulled her pants down and penetrated her anus with a finger (count 1); then with his penis (count 2); and then with a vibrator (count 3). Finally the appellant penetrated her genitalia with his penis before withdrawing and ejaculating onto a pillow (count 4). 44The appellant took the child home at about 7pm where he was confronted by her father who was concerned. He had telephoned his daughter's friend's mother at about 6pm and had been told that the proposed visit to the friend had not occurred. The complainant made an immediate disclosure of what had occurred. 45The appellant was arrested the following day (21 August 2005) and has been in custody since.

Assessment of objective seriousness 46The learned judge rejected a submission by the appellant's then counsel that the offences were unplanned and opportunistic; instead finding that the appellant's conduct prior to the offences demonstrated his intention to do what he did and "his planning to achieve his intention". 47His Honour accepted a submission that there was no violence (beyond the sexual assaults themselves). But he also noted that the appellant had led the complainant to believe that she could not leave the premises because the front door was locked and he threatened her when telling her not to tell anybody about what had happened. His Honour later stated by reference to s 21A(2)(b) of the Crimes (Sentencing Procedure) Act that the threatened use of violence was an aggravating feature. 48He accepted that the complainant had not suffered any physical injury but took into account a likelihood of an adverse impact upon the child's sexual and emotional development that might not manifest itself for some years. 49The judge accepted that the appellant had a mental illness and that it played a part in his commission of the offences. Accordingly, he found that the appellant's moral responsibility for the offences was reduced. 50Other aggravating features bearing upon the objective seriousness of the offences that were taken into account by reference to s 21A(2) were that the appellant had assumed responsibility for the complainant while she was in his care and that her age, 10 years 6 months, made her vulnerable.

Subjective features taken into account 51The judge noted that the appellant was aged in his mid-thirties. He referred to his family background which included that his parents separated when he was aged four; he lost contact with his father; and his mother remarried when he was aged seven but she and his stepfather separated when he was thirteen. Despite these matters, his Honour said that the appellant had been raised by his mother in a happy and supportive environment. 52The appellant left school in Year 11 and thereafter had been mostly unemployed. He had commenced using cannabis in his mid-teenage years and had gone on to using other drugs including LSD, ecstasy, amphetamine, cocaine and heroin. The judge described the appellant's use of drugs as having caused a "downward spiral into a life of crime". 53Reference was made to the appellant being treated with medication for a mental illness in 2001-2002 and being diagnosed in September 2002 as suffering from schizophrenia. He failed to take his medication as and when required and was not taking it, and was using illicit drugs, at the time of the offences. 54The appellant had an extensive criminal record but there were no previous sexual offences. The judge said that he "suspected" that many of the offences on the record related to the appellant's involvement with drugs. It was held (correctly) to be an aggravating feature that the offences occurred while the appellant was on conditional liberty by way of being on suspended sentence bond. 55The judge found that none of the mitigating factors listed in s 21A(3) of the Crimes (Sentencing Procedure) Act were present. However, he accepted that if the appellant complied with treatment for his mental illness there was a reasonable chance that he would be rehabilitated and would not re-offend. 56General and personal deterrence were regarded as "not as important in this case as it might be in another case" on account of the appellant's mental illness.

Approach to the standard non-parole period 57The appellant's counsel submitted that the offences "fell toward the bottom of the middle of the range of objective seriousness". The Crown Prosecutor argued that they "fell in the high end of the range". The judge concluded: [T]hat the offences fall within the middle of the range of objective seriousness and that, therefore, the standard non parole period is the starting point for the determination of appropriate sentence. 58The error was compounded by his Honour continuing immediately to say: I have determined that, balancing everything that I have said about the offences and the offender, that the standard non parole period of 10 years is the appropriate starting point for the sentences, so that the appropriate sentence for each offence is imprisonment for 13 years four months. 59Clearly, his Honour adopted a two-staged approach to the sentencing task and appears to have regarded the standard non-parole period as having determinative significance: Cf Muldrock at [26]-[29]. 60None of this should be taken to be critical of his Honour. Clearly he was following the dictates of R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 which the Crown had been promoting consistently in this Court until in 2011 it decided to argue for the first time in the High Court that it was wrongly decided.

Concurrency of the sentences 61The judge rejected a submission by the Crown Prosecutor that there should be some partial accumulation of the individual sentences in order to properly punish the appellant for having committed four separate and distinct offences. He accepted the submission by the appellant's counsel that the sentences should be concurrent because they were "committed by the one offender upon the one complainant over a relatively short period of time".

Special circumstances 62Whilst he rejected a submission that the appellant's need for long-term treatment for his mental illness was a basis for finding special circumstances, the judge accepted that his classification as a "non association" prisoner, making "prison life more onerous than it should be" did warrant a reduction of the proportion of the sentences to be represented by the non-parole periods.

Grounds of appeal 63There are two grounds of appeal:

The sentencing judge erred in his consideration of the standard non-parole period in light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120 with respect to each count.
The sentencing judge erred in failing to take into account the effect of the appellant's mental illness in respect of the circumstances of his imprisonment and the combined effect of the appellant's mental illness and his segregation within the prison system. 64Ground 1 was the basis of the referral by Latham J to this Court. It was conceded by the Attorney General in the Pt 7 proceeding and is again conceded by the Crown here. The concession is appropriate for the reasons I have earlier mentioned. 65That is reason enough to move to consider whether less severe sentences were warranted and should have been passed: s 6(3) of the Criminal Appeal Act. But it will be necessary in that exercise to consider the arguments advanced in relation to the other ground.

Ground 2 66Counsel for the appellant referred to the judgments given in the earlier appeal to this Court: Carlton v R, supra. Basten JA summarised the effect of the ground(s) of appeal as follows: [85] ...The appellant's complaints are two-fold: first, it is contended that his Honour failed to consider relevant factors which might have led him not to apply the standard non-parole period and, secondly, that his Honour failed to give proper weight to the appellant's mental illness. 67After dealing with the judge's approach to the standard non-parole period, Basten JA turned to the issue that is at the heart of Ground 2 in the present proceeding and said: [112] There is no doubt that prison conditions are onerous for many members of the community. Imprisonment constitutes punishment, but the punishment should not be the imposition of unduly onerous conditions. If the conditions are likely to be more onerous for one class of prisoner, that should be taken into account on sentencing. It appears that the appellant's psychotic condition is kept in control by medication. Nevertheless, it is apparent that the combination of isolation, or limited association, together with the evident symptoms of schizophrenia are likely to render a prison environment more onerous for the appellant than for a person to whom either of those conditions applies separately. The fact that his Honour failed to take account of the effect of his mental illness in respect of the circumstances of his imprisonment and the combined effect of his mental illness and his segregation within the prison system, constituted a failure to take account of relevant circumstances. 68His Honour then stated (at [113]) that the judge was in error in only taking into account the circumstances of the appellant's custodial experience in relation to setting the non-parole period (by the finding of special circumstances) when it was a matter that was relevant to the setting of the overall term of the sentence. 69His Honour then referred to affidavit evidence that was before the Court in the event it was moved to consider re-sentencing: [114] It appears that the conditions of segregation are likely to continue. In an affidavit filed on 22 August 2008 in these proceedings and available for the purpose of re-sentencing, the appellant stated that he was now at John Morony Correctional Centre at Berkshire Park. He stated that he had been there since he was sentenced. The affidavit continued: "I requested that I be kept apart from other prisoners. That was because I was fearful what might happen to me if other prisoners knew why I was in custody. I was a non-association prisoner for fourteen months. Over that time I had a small yard two metres by two metres attached to my cell. I was allowed to be in the yard for six hours a day. I suffer from schizophrenia. Over that time I also became depressed. I have been medicated for my schizophrenia. I receive zyprexol and respirodone. I am now a limited association prisoner. This means that I am in a POD with a small number of other prisoners. There are seven of us together. I am the wing sweeper. The other prisoners are also classified as 'sex offenders'. I am cautious about having too much to do with most of them. Because I have been a non-association prisoner and a limited association prisoner there have not been any courses or educational facilities available for me. My part of the prison has a small library. There is, however, nothing to help me educate myself for when I am released." 70Basten JA concluded that a total sentence of 12 years with a non-parole period of 7 years 8 months should be imposed. 71Price J expressed agreement that the sentencing judge had erred as described at [112] of the judgment of Basten JA. However, he considered that no lesser sentence was warranted for the following reasons: [121] For his own sexual gratification, the appellant inflicted four different acts of gross indecency on a 10 year old child. Three of those acts involved the penetration of the child's anus; the first by his finger, the second by his penis and the third by the insertion of the blue-coloured vibrator. Each act by itself occasioned harm to the complainant. The fourth offence concerned penile penetration of the child's genitalia which involved separate harm to her. [122] The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 include a recognition of the harm done to the victim and the community. The imposition of totally concurrent sentences, to my mind, fails to acknowledge the separate harm done to the child by the different criminal acts of the appellant. In my view, there are occasions when a sentencing Court should take care to ensure that consideration of an offender's behaviour being closely related in time does not obscure the fact that different offences were committed. This was, it seems to me, such an occasion. There should have at least been partial accumulation of some of the sentences. Total concurrency of the sentences was generous to the appellant. 72Hislop J agreed with Price J. Accordingly, leave to appeal against sentence was granted but the appeal was dismissed.

Submissions 73The essence of the appellant's case in relation to Ground 2 was reliance upon the reasoning of Basten JA set out above, noting that it had the agreement of the other two members of the Court. 74No complaint was raised in the 2008 appeal about the judge's approach, in a technical sense, to the standard non-parole period. It is now contended that consideration by the Court, and particularly by Price and Hislop JJ, of whether a lesser sentence was warranted must have been influenced by what had been said in R v Way about the correct approach and so the conclusion of the majority in 2008 should be seen in that light. It was submitted that application of the approach mandated by Muldrock would lead to the conclusion that a lesser sentence was in fact warranted. 75It is hard to understand whether the Crown resisted this Court upholding Ground 2. Most of the written submissions were devoted to a question of whether the appellant's mental illness was causally related to the offending. That was an issue decided in the appellant's favour by the sentencing judge and not brought into issue by Ground 2. Brief reference was made to the appellant's reliance upon the decision in the 2008 appeal. It was not, however, contended that the Court should now come to a different conclusion. Rather, it was contended that no lesser sentence was warranted, primarily, but not only, because of the "generous" approach by the sentencing judge in making the sentences completely concurrent.

Determination 76There was no complaint about the approach taken by Nield DCJ in taking into account the appellant's mental illness in a variety of ways in the assessment of sentence. However, I accept that he was in error in limiting the relevance of the more onerous custodial conditions partly as a result of his mental illness and partly as a result of being held in a more restrictive gaol environment to the setting of the non-parole period. Like Price and Hislop JJ, I respectfully agree with the reasoning and conclusion of Basten JA. 77However, if leave to appeal is required in respect of this ground because it was not the subject of the Pt 7 referral, I would refuse it. There was no need for the ground to be raised, a point counsel for the appellant virtually conceded at the hearing. The appellant already had the finding of the Court in 2008 that was in his favour. The subject matter of this ground, together with fresh affidavit evidence concerning it, provides relevant material for the Court to consider on the s 6(3) issue following the upholding of Ground 1.

Were less severe sentences warranted? 78A starting point is to accept the unchallenged finding by the sentencing judge that each of the offences was in the middle of the range of objective seriousness. The making of such a finding does not run counter to Muldrock: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [46]; Beldon v R [2012] NSWCCA 194 at [78]; McLaren v R [2012] NSWCCA 284 at [28]. 79A further matter to take into account is the aggravating factor of the appellant being on conditional liberty at the time of the offences. 80It is then necessary to have regard to the ways in which the appellant's mental illness impacted upon the assessment of sentence. Aside from reduced moral culpability there was the judge's determination, with which I agree, that there should be some reduction in the weight to be given to general and personal deterrence. Then there are the onerous circumstances of the appellant's custodial experience resulting from the combination of his mental illness and being kept in some degree of protective custody. 81Affidavits were read in the event the Court was to consider resentencing. The appellant deposed that in early 2011 (other material suggests it was earlier) he voluntarily left the limited association protective custody he had been in and became "a normal protection prisoner" so that he could gain better access to programs to improve himself. However he remains in fear of retribution because of the nature of his crimes. Other material confirms that he has been threatened. On one occasion he was involved in a "minor scuffle" and received a "small (very) wound" to his right knee "from a pen". 82The fact that the appellant left the more restrictive custodial conditions in which he had been formerly held does not diminish the significance of his argument that such onerous conditions were relevant to the assessment of sentence. The fact remains that he had been held in such conditions for a significant period, some five or six years. 83The appellant said that he had been compliant with the regime of medication prescribed to treat his schizophrenia. He has turned to Buddhism and meditation to also assist in managing his mental illness. He is involved with behavioural therapy sessions and counselling with psychologists. He has engaged in responsible types of employment and has participated in education programs. He has received commendations for his program participation as well as for his work and behaviour. 84The appellant's mother's affidavit confirms her enduring support. She has observed the fear that he feels about the prospect of retribution for the nature of his crimes since his transfer to a less protected classification. 85Having regard to all of the circumstances, I consider that, when looking at the individual sentences and assessing them without giving the standard non-parole period determinative (or even primary) significance, lesser sentences are warranted. 86However, a prominent question in this context is whether the sentences should have been partially accumulated as the Crown contended. The answer must be affirmative. 87The principle is well established. Once the individual sentences are determined, it is then that one must consider issues of concurrency, accumulation and the principle of totality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45] (McHugh, Hayne and Callinan JJ). That determination is carried out in the fashion described so clearly by Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41: [27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both. 88Further, it is not necessarily the case that multiple sexual offences committed in the course of a single incident should result in concurrent sentences: see, for example, R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326. 89In the present case, the totality of the criminality of the appellant is greater than the criminality involved in any one of the individual offences. Partial accumulation of the sentences was called for. 90In resentencing for the individual offences I had in mind terms of 11 years but they would be accumulated by 9 months. That would yield an overall term that is insignificantly different to that originally imposed and the non-parole component would be the same. There is no practical utility in resentencing. The appeal should be dismissed.

Order 91I propose the following order: Appeal against sentence dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2014

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