The factor of aggravation in respect of the latter charge was occasioning actual bodily harm to the victim by tying her wrists behind her back.
4 The applicant was sentenced to a fixed term of five years for the first offence, the sentence dating from 31 July 2008. On the second offence, he was sentenced to a non-parole period of 10 years with a balance of the term of the sentence of four years. The non-parole period was fixed to commence on 31 July 2010 thus being accumulated on the first sentence, by a period of two years. The effective term of mandatory custody was therefore 12 years. The overall period of imprisonment was 16 years.
5 There are a number of difficulties with the manner in which the sentencing exercise was carried out. First, there is a technical difficulty. The sentencing judge was required to sentence the applicant for each offence, as he did. However, in respect of the sexual assault for which he fixed a non-parole period and a balance of the term of the sentence, he was required, in the absence of "special circumstances", to fix a balance of term which was not more than one-third of the non-parole period: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2). His Honour did not make such a finding; indeed, he concluded that there were "no special circumstances in this case": judgment, p 8.
6 The Director conceded error, but submitted that it was an error which was beneficial to the applicant because, instead of a non-parole period which was at least 75% of the "head sentence", the 10 year non-parole period was actually a lower figure. That, however, is to reverse the way in which the section is expressed to operate and assumes that the full sentence was correct and the error lay with the non-parole period.
7 It is likely, given the refusal to find special circumstances, that his Honour sentenced on the basis that the balance of the term on the sexual assault (four years) was one-third of the period of mandatory custody, once the accumulation of the second sentence on part of the first sentence was taken into account. However, that would also be an erroneous approach in law; s 44 operating in respect of a sentence for an offence, not a cumulative period of imprisonment: Hejazi v The Queen [2009] NSWCCA 282 at [18] (my judgment) and [35]-[36] (Howie J, Hislop J agreeing); Sendy v The Queen [2009] NSWCCA 299 at [37] (Fullerton J), [42] (McCallum J). If his Honour had wished to achieve that result, the fact of accumulation would have provided a basis for finding special circumstances, a course which could have been taken.
8 The Director submitted that, if error were found, this Court would nevertheless dismiss the appeal, on the basis that no less severe a sentence was warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3). That submission will need to be addressed on its merits. However, s 6(3) applies to an appeal against "a sentence" and the assessment must be made of that sentence. It would be incorrect to apply that section on the basis that the overall period of imprisonment resulting from the accumulation of two sentences, was warranted in law: Arnaout v R [2008] NSWCCA 278; 191 A Crim R 149 at [20]-[21]; Marinellis v Regina [2006] NSWCCA 307 at [66] (Adams J).
9 This latter point is of significance in this case. Although the notice of appeal, erroneously, identified the longest sentence as "16 years" and the non-parole period as "12 years", and referred to the "total sentence" as manifestly excessive, there was, as Latham J notes, no challenge to the sentence for the first offence, nor (at least directly) the element of accumulation. Nor is there any prosecution appeal in relation to the sentence for the first offence of detaining for advantage.
10 A fixed term may be treated as equivalent to a non-parole period: Thomas (1992) A Crim R 269, 275-276 (Hunt CJ at CL). On this basis, the offence of detain for advantage was treated as warranting a penalty half that of the sexual assault.
11 That causes a difficulty when identifying the appropriate sentence in respect of the sexual assault. It is at least possible that elements which may have been legitimately taken into account as part of the offence of detain for advantage, which covered a period of hours, have been taken into account in respect of the sexual assault. However, there are matters which cannot readily be so treated. For example, the victim was first bound and blindfolded and sprayed with bleach in her own bedroom, while her elder daughter was required to lie face down on the bed beside her. This could have been treated as a serious aggravating circumstance in respect of the detention for advantage. However, the sexual assault was carried out in a different part of the house, the daughter having been left in the bedroom. There is no finding that the daughter witnessed, or was aware of, the sexual assault on her mother.
12 This Court will not readily interfere with the characterisation by the sentencing judge of the circumstances of an offence. However, here there is an element of uncertainty in the way in which his Honour characterised it, and on what basis. At one point he described the offence as "well towards the upper range": judgment, p 5. Later, he characterised it as "at the high end of the range of objective seriousness": at p 7. Nor is it clear how his Honour allocated aspects of the conduct of the applicant between the offences.
13 Although the fact that more serious examples of a particular offence can be imagined, or have been experienced, it does not follow, of course, that a sentence towards the maximum penalty may not be imposed. However, principles of proportionality require that where significantly more serious offences can occur, the seriousness of such conduct be reflected in a higher sentence than that which should be imposed for a less serious offence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ), [83] (McHugh J). In the present case, there were a number of features which suggested that the sexual assault was not a most serious offence of its kind.
14 First, both offences may be described as opportunistic, rather than planned. Although the applicant took significant steps (later abandoned) to conceal his identity and to remove traces of his DNA, he did not arrive equipped for such a task with relevant clothing or implements.
15 Secondly, in respect of the detention for advantage, the binding of the victim's wrists which occasioned the actual bodily harm, appears to have been done in panic, on discovering her with her mobile phone after the applicant had left the room briefly. When she asked him to loosen the tight bonds, he did so and when unable to untie the knots, found scissors to cut the binding free.
16 Thirdly, in respect of the sexual assault, the offence lasted a matter of minutes.
17 Fourthly, his contrition was immediate and he expressed regret at what he had done whilst on the victim's premises.
18 With one qualification, his Honour made no finding adverse to any of these propositions. Arguably, however, he gave little consideration to them, as potential aggravating circumstances which were absent on the facts, when assessing the seriousness of each offence. The qualification arises from the following statement (judgment, p 4):
"The complainant went straightaway to the police station and reported what had happened to her. The offender was arrested a couple of days later. He conducted a record of interview with the police. It is significant that there is a close match [between the account] of the events given by the complainant and the description of events given by the offender. The offender did tell the police that he was sorry for what he had done. There are indications also that during the course of the four hours, when the complainant engaged the offender in conversation, that he also then expressed his remorse for what he had done."
19 A number of points arise from this passage. First, and least importantly, the record of interview with the police was conducted 24 hours after the offence, not "a couple of days later". Secondly, his Honour did not seek to identify any significant element in respect of which the applicant's description departed from that of the victim in a manner which could have indicated an attempt to diminish the significance of his misconduct. Thirdly, to say that there were "indications" that he had expressed remorse to the victim during his period in the house downplayed the undisputed facts. The complainant told the police that after the sexual assault, he had gone to the fridge and obtained beer for both of them and had sat down beside her on the couch and "appeared to calm down after that": par 95. She continued (at par 99):
"He gave me the cigarette. While he was giving me the cigarette he starting [started] saying things and talking about what he [had] just done.
He said, 'I can't believe I just did that.' 'I didn't mean to.' 'I don't know what came over me.' 'I would never hurt your children. I'm not a paedophile.'"
20 So far as circumstances personal to the applicant were concerned, he had a long criminal record, which is referred to by Latham J. Significant weight must be given to that evidence, in the way that her Honour describes. However, the personal history of the applicant provides some explanation (though not of course justification) for his drug taking, psychosis and descent into criminality. The primary judge stated (judgment, p 5):
"The offender's early history is recorded in a letter that I have received written by his sister. It was relatively unremarkable. True there were the usual problems that occur when parents separate acrimoniously, but things really began to fall apart as the offender's sister said, when he was around 17 years of age. His criminal history is testament to what occurred thereafter."
21 With respect, I see no justification for treating the letter so dismissively. There was no reason to doubt the factual assertions in it. His sister stated, amongst other things:
"I am 13 years older than my brother …. During my mother's pregnancy with Andrew, my parents' marriage was shaky and my mother had a nervous breakdown. Once Andrew was born, she totally disassociated from him. Then she left home suddenly when he was six years old. Andrew never heard from her again.
…
The relationship my father was in at the time [when Andrew was sent to boarding school] with a young woman was experiencing a rough patch and one day during school holidays when Andrew was nine years old, he came home to discover my dad's girlfriend lying on the floor after attempting suicide. …
It wasn't long after that when Andrew began experimenting with marijuana, and from there he progressed on to prescription medications like Rohypnol. His drug abuse was growing out of control. He was expelled from school…. [H]e befriended a boy called Tim. They became great mates. Tim would join Andrew at home for school holidays and vice versa. Everything seemed to go well for a time until Tim committed suicide. Andrew was again brought home to live. By this time, my father had married and moved to … Qld. During his time in Qld a friend of Andrew's was killed in a motorbike accident. My father then moved to Sydney not long after.
Once Andrew arrived in Sydney his life really began to fall apart."
22 Finally, it is necessary to refer to the reference made by the sentencing judge to the decisions of the High Court in Veen (No 1) v The Queen [1979] HCA 7; 143 CLR 458 and Veen (No 2) v The Queen [1988] HCA 14; 164 CLR 465.
23 As Latham J notes, the way in which his Honour took account of the need for protection of the community was not challenged. However, at least implicitly, the applicant did take issue with the assessment of the sentencing judge that "the prospect of his release to the community one day is decidedly uncomfortable": judgment, p 8.
24 The applicant's counsel noted that he is a forensic patient under the supervision of the Mental Health Review Tribunal. The submission noted that "[e]ven when his non-parole period has been served he will only be released if the MHRT determines that he can safely be conditionally released": at par 60. This was presumably a reference to s 43 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The Director did not take issue with that statement. It may that, at some stage, it will be necessary to consider how the principles explained in Veen (No 2) should operate in the context of the current statutory regime for the control of forensic patients who are seen to be dangerous to the community.
25 Ultimately, the applicant's complaint of a manifestly excessive sentence was based on the fact that, before allowing a discount of 25% for the early plea of guilty, his Honour must have used a starting point of 18 years 8 months (which, when reduced by 25%, gives the sentence period for the sexual assault offence of 14 years). That, it was submitted, was so close to the maximum that it allowed no room for a proper degree of proportionality with respect to an objectively more serious instance.
26 For reasons explained above, it is not entirely clear what circumstances may need to be discounted to test the validity of this starting point. However, if the offender had successfully concealed evidence of his offence and decamped without expressing remorse and had pleaded not guilty, a sentence of imprisonment of 18 years 8 months would, in my view, have been inappropriate, taking into account the factors set out above. There is no doubt that the offence was serious and that it took place in the victim's family home; it required a lengthy custodial sentence. Accepting that the offence was above the mid-range, in the event of a conviction by a jury, a non-parole of 12 years with a balance of term of four years, would, in my view, have been a sentence within an appropriate range. (The absence of immediate contrition might have warranted a higher sentence, but not 18 years.) That would suggest a sentence in the present case, on a plea of guilty and with the element of immediate remorse, and a full confession to the police within 12 hours of the offence, as warranting a sentence of 12 years imprisonment, comprised of a non-parole period of nine years and an additional term of three years.
27 I would make the following orders: