CPW v R

CATCHWORDS: CRIMINAL LAW - Sentencing - child sexual assault - multiple offences - some offences committed many years previously - sentencing in accordance with law and practice at the time of the offences - special circumstances by reason of accumulation of sentences

Crimes (Sentencing Procedure) Act Crimes Act LEGISLATION CITED: Criminal Appeal Act Parole of Prisoners Act 1966 Probation and Parole Act 1983 Sentencing Act 1989

AJB v Regina (2007 169 A Crim R 32 Cahyahi v The Queen (2007) 168 A Crim R 41 Close (1993) 65 A Crim R 72 Featherstone v R [2008] NSWCCA 71 GAC v R [2007] NSWCCA 287 MJL v Regina [2007] NSWCCA 261 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 R v Ellis (1986) 6 NSWLR 603 R v PLV (2001) 51 NSWLR 736 R v Swan [2005] NSWCCA 252 R v Holder (1983) 3 NSWLR 245 R v MJR (2002) 130 A Crim R 481 R v MMK [2006] NSWCCA 272 Simpson (1992) 61 A Crim R 58

PARTIES: CPW Regina

COUNSEL: E Wilson - Appellant J Dwyer - Crown

SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)

IN THE COURT OF CRIMINAL APPEAL 2006/5773

McCLELLAN CJ at CL JAMES J ADAMS J

THURSDAY 23 APRIL 2009 CPW v R Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: The applicant, who I will refer to as CPW, applied for leave to appeal against sentences imposed on him in the District Court by his Honour Acting Judge Woods for 13 offences, to which the applicant had pleaded guilty. The offences were offences of either indecent assault, aggravated indecent assault, act of indecency or sexual intercourse, which had been committed against girls who were granddaughters of the applicant or otherwise members of his extended family. The first seven offences charged in an indictment against the applicant (counts 1-7) had been committed comparatively recently, at various times between 2002 and 2006. The last six offences charged in the indictment (counts 8-13) had been committed much earlier, at various times between 1982 and 1986. It will be convenient in this judgment to sometimes refer to the offences charged in counts 1-7 as the "recent" offences and to the offences charged in counts 8-13 as the "old" offences. 3 Counsel for the applicant included in his written submissions a table which usefully set out particulars of the offences and of the sentences imposed by his Honour, parts of which I will now reproduce (slightly varying the order of the columns in the table).

No. of count Kind of offence Date of offence alleged in indictment Complainant Section of Crimes Act Sentence s 61L Non-parole period 16 months 1 Indecent assault Between 30 June 2006 and 7 August 2006 KRW - a granddaughter born 04/06/90 Maximum penalty Balance of term 5 years 4 months commencement date 14/08/2006 s 61M(1) Non-parole period 2 years Maximum penalty Balance of term 2 Aggravated indecent assault Between 31 December 2004 and 1 January 2006 EW - a granddaughter born 27/07/93 7 years 1 year Standard non-parole period commencement date 14/08/2007 5 years s 61N(1) Fixed term of 3 Act of indecency Between 31 December 2004 and 1 January 2006 EW Maximum penalty 6 months 2 years commencement date 14/08/2009 Non-parole period s 61L 12 months 4 Indecent assault On or about 24 July 2006 KRW Maximum penalty balance of term 5 years 4 months commencement date 14/08/2006 s 66C(1) Non-parole period 2 years 6 months 5 Sexual intercourse with child between ages 10 and 16 30 January 2002 and 13 December 2002 KRW Maximum penalty Balance of term 8 years 10 months commencement date 14/02/2010 s 61M(1) Non-parole period 2 years 6 Aggravated indecent assault Between 30 January 2002 and 13 December 2002 KRW Maximum penalty Balance of term 7 years 1 year commencement date 14/08/2007 s 61M(1) Non-parole period 2 years 7 Aggravated indecent assault Between 30 January 2002 and 13 December 2002 KRW Maximum penalty Balance of term 7 years 1 year commencement date 14/08/2007 Non-parole period s 76 1 year 8 months 8 Indecent assault on female under the age of 16 years Between 19 February 1980 and 20 February 1982 KH - niece of applicant's wife born 20/02/1968 Maximum penalty Balance of term 6 years 10 months commencement date 14/08/2012 s 61E(1) Non-parole period 1 year 8 months 9 Indecent assault on person under the age of 16 years Between 31 December 1980 and 12 May 1982 BC - daughter of applicant's wife's cousin born 12/05/1972 (since repealed) Balance of term Maximum penalty 10 months 6 years commencement date 14/08/2012 s 61D(1) Non-parole period 2 years 6 months 10 Sexual intercourse without consent with person under the age of 16 years Between 31 December 1982 and 1 January 1986 BC (since repealed) Balance of term Maximum penalty 10 months 10 years commencement date 14/04/2014 s 61E(1) Non-parole period 1 year 8 months 11 Indecent assault on person under the age of 16 years Between 11 May 1981 and 12 May 1982 BC (since repealed) Balance of term Maximum penalty 10 months 6 years commencement date 14/08/2012 s 61D(1) Non-parole period 2 years 6 months 12 Sexual intercourse without consent with person under the age of 16 years Between 31 May 1983 and 19 June 1983 MA - sister of BC (niece of applicant's wife's cousin) (since repealed) Balance of term Maximum penalty 10 months 10 years commencement date 14/10/2015 s 61E(1) Non-parole period 1 year 8 months 13 Indecent assault on person under the age of 16 years Between 31 May 1983 and 19 June 1983 MA (since repealed) Balance of term Maximum penalty 10 months 6 years commencement date 14/10/2015

4 In sentencing the applicant for the offence charged in count 5 the sentencing judge was to take into account three additional offences, one of indecent assault committed against RW, a granddaughter of the applicant in 2004 when she was five years old and two of aggravated indecent assault committed against CD, another granddaughter of the applicant, between 2002 and 2004, CD having been born in June 1991. 5 Certain observations can immediately be made about the sentences imposed by his Honour. 6 The two sentences for indecent assault on the complainant KRW (counts 1 and 4) are identical (non-parole period 12 months parole period 4 months) and fully concurrent, commencing on 14 August 2006. 7 The three sentences for the recent offences of aggravated indecent assault (counts 2, 6 and 7) are identical (non-parole period 2 years parole period 1 year) and fully concurrent, commencing on 14 August 2007. 8 The sentence for the offence of committing an act of indecency (count 3) commences on 14 August 2009. 9 The sentence for the recent offence of sexual intercourse (count 5) commences on 14 February 2010. 10 The sentences for the four old offences of indecent assault (counts 8, 9, 11 and 13) are identical (non-parole period 1 year 8 months parole period 10 months). The sentences for the offences charged in counts 8, 9 and 11 are fully concurrent, commencing from the same date 14 August 2012. However, the sentence for the offence charged in count 13 commences on 14 October 2015. 11 The sentences for the old offences of sexual intercourse (counts 10 and 12) are identical (non-parole period 2 ½ years parole period 10 months) and are identical with the sentence for the recent offence of sexual intercourse (count 5) but the sentence for the offence charged in count 10 commences on 14 April 2014 and the sentence for the offence charged in count 12 commences on 14 October 2015. 12 In the case of some sentences the non-parole period is three quarters of the total sentence (counts 1, 4, 5, 10 and 12). In the case of other sentences the non-parole period is less than three quarters of the total sentence (counts 2, 6, 7, 8, 9, 11, and 13). 13 The total length of the head sentences is 12 and a half years commencing on 14 August 2006 and expiring on 13 February 2019. The total length of the non-parole periods is 11 years 8 months commencing on 14 August 2006 and expiring on 13 April 2018. The only effective parole period is that under the sentence for the offence charged in count 12 of 10 months commencing on 14 April 2018 and expiring on 13 February 2019. Facts of the offending 14 The facts of the various offences can be briefly summarised as follows. Numbers of count Facts 1 The applicant entered the complainant's bedroom and commence to massage the complainant's body. The applicant touched the complainant in the genital area under her clothing 2 The applicant touched the complainant in the genital area under her clothing 3 The applicant masturbated in the presence of the complainant 4 Shortly before the applicant committed the offence charged in count 1, the applicant rubbed one of the complainant's breasts 5, 6 and 7 These offences were all committed on the same occasion. The applicant committed indecent assaults by twice touching the complainant in the genital area and then engaged in cunnilingus on the complainant. 8 The applicant put his hand in the complainant's pyjama pants and touched her in the genital area. 9 The applicant touched the complainant in the genital area either inside or outside her clothing. 10 The complainant woke up to find that her underwear had been removed and the applicant was licking and rubbing her vagina. 11 While the complainant was doing handstands against the wall and was upside down, the applicant touched her in the genital area. 12 and 13 These offences were committed on the same occasion. The applicant entered the complainant's bedroom, licked her body, pulled down the pants she was wearing, rubbed her in the genital area and then committed cunnilingus.

15 The facts of the additional offences can be briefly summarised as follows.

First additional offence - the applicant put his hand on the complainant's breasts and genital area outside her clothing.

Second and third additional offences - the applicant exposed his penis and put the complainant's hand on his penis. The applicant entered the complainant's bedroom, put his hand under the top she was wearing and rubbed her breasts. 16 In the case of each complainant the offence or offences charged were only instances of a continuing pattern of behaviour by the applicant towards the complainant. 17 The offences came to the attention of the authorities in August 2006. KRW made a complaint about the applicant's conduct in committing offences 1 and 4 to her grandmother, the applicant's wife, and the applicant's wife spoke to the applicant about the complaint. The applicant then presented himself at a police station. He took part in lengthy electronically recorded interviews on 14 August 2006, 30 August 2006 and 26 September 2006, in which he made many admissions. The applicant made admissions about the old offences before any complaint was made by the victims.

Remarks on Sentence 18 In his remarks on sentence the sentencing judge set out the counts in the indictment, stated particulars of the complainants and summarised the facts of the offences. 19 His Honour referred to the subjective circumstances of the applicant. The applicant was 58 years old at the time of being sentenced. The sentencing judge regarded it as significant that in February 1994, that is in the intervening period between the commission of the old offences and the commission of the recent offences, the applicant had been sentenced to terms of imprisonment for offences committed in 1989 consisting of five offences of indecent assault, one offence of aggravated indecent assault on a child under 16 and one offence of aggravated indecent assault by a person in authority. 20 In his remarks on sentence the sentencing judge referred to parts of a pre-sentence report and a report by a psychologist Mr Taylor. 21 With reference to the pre-sentence report his Honour said:- "I have a presentence report which notes that the offender came from a large family which had moved to Walgett when he was very young. His father was a stern disciplinarian. At age 19 years the offender commenced a liaison with an Aboriginal woman and his father ostracised him from the family. In due course he married the Aboriginal woman and they had three children who are now adults. In recent years they have lived separate lives but he still regards the marriage as subsisting. He was educated to year nine at school and has been variously employed since then in various semi skilled employment." 22 The pre-sentence report noted that a psychiatric report in 1993 had stated that the applicant "discloses a sexual fantasy life relating to age inappropriate imagery" and the history "suggested that there is a paedophiliac tendency". 23 The pre-sentence report further noted that a recommendation had been made that, after the applicant was released from custody under the 1994 sentences, there should be ongoing monitoring of his behaviour but monitoring had proved to be difficult because the applicant was living in western New South Wales. 24 In his remarks his Honour also said with reference to the pre-sentence report:- "The report refers to the offences for which he was imprisoned in … 1994 and notes that the new offences having continued after having served sentences appears to demonstrate his denial of the extent of his deviant behaviour and the lack of appreciation of the seriousness of his offending." 25 In parts of the report of the psychologist Mr Taylor, to which the sentencing judge referred, Mr Taylor had said that the applicant felt that as a child he had a poor self-image and low self-esteem and Mr Taylor considered that the history suggested that the applicant's psycho-sexual and psycho-social development had been significantly affected by his poor self-image, which, in Mr Taylor's opinion, was responsible for the applicant's paedophilia. Mr Taylor assessed the applicant as having a moderate risk of sexual recidivism. 26 As to the objective seriousness of the offences, his Honour considered that the offences "demonstrated a complete lack of appreciation of the meaning of relationships between adults and children". The offences involved abuse by the applicant of a position of trust. The offences had continued over many years and had continued after the applicant had served terms of imprisonment for similar behaviour. The offences which had been charged were not isolated instances but part of a wider pattern of conduct. 27 In his remarks his Honour said that it could be assumed that the complainants had suffered long term emotional harm. The statements made to police by some of the complainants showed that they had been seriously disturbed by what the applicant was doing to them. 28 His Honour considered that mitigating factors were the applicant's pleas of guilty and that the applicant had gone to a police station and volunteered information about incidents which might not otherwise have been discovered. The need for the complainants to give evidence in court had been obviated by the applicant entering his pleas of guilty. 29 The sentencing judge declined to find that the applicant's age was a mitigating factor. He also declined to find that the applicant's imprisonment would be more onerous because he was a child sexual assault offender, noting that "there are a whole section of institutions which are given over…to provide appropriate secure custody for certain offenders…and protective custody prisoners are able to participate in the expected range of services". At p 24 of his remarks on sentence his Honour asked himself the question "how do I approach sentencing (the applicant)?". His Honour directed himself that, in sentencing for the old offences, "I must consider the law and practice at it was at the time of the offences". 30 His Honour referred to the additional offences to be taken into account, which he said "can lead to a slightly longer sentence". 31 As to the offence charged in count 2, the only offence for which a standard non-parole period had been set, his Honour considered that he could depart from the standard non-parole period, because of the applicant's plea of guilty and because the applicant had voluntarily gone to the police station and confessed his guilt. 32 His Honour noted that he had been referred to sentencing statistics but said:- "Such statistics are but blunt tools and it cannot be said that there is any series of statistics which can relate to the scale and regularity of the abuse being perpetrated by this offender on young children within his care or family circle over such a period of time. The overview of these offences and the circumstances must put these offences into the highest category of seriousness." 33 As to counts 5, 10 and 12, the charges of sexual intercourse, the sentencing judge noted, in favour of the applicant, that there had been no penile penetration. 34 His Honour said that he had to balance a number of considerations and expressly referred to the pleas of guilty, "admissions to the authorities of offences which may not have been discovered", the applicant's position of trust in relation to the complainants, the nature of his acts, the need for deterrence in sentencing for these types of offences and the applicant's continuing to re-offend after having been convicted of similar offences. There was a need to set separate sentences and then to consider totality. 35 His Honour then proceeded to consider the offences in groups. 36 As to counts 8, 9, 11 and 13, the old offences of indecent assault, his Honour said that he would adopt a starting point of about 4 years and "with appropriate reductions for the plea of guilty and the cooperation" he would arrive at a head sentence of 2 years 6 months. 37 As to counts 10 and 12, the old offences of sexual intercourse, his Honour said that he would adopt a starting point of about 5 years and would arrive at a head sentence of 3 years 4 months. Because the offences involved different victims, there would have to be some accumulation of the sentences. 38 As to counts 1 and 4, the offences of indecent assault against KRW, his Honour simply announced the sentence he would impose for each offence, without any statement of how he had arrived at the sentence. 39 As to counts 2, 6 and 7, the recent offences of indecent assault, his Honour simply announced the sentence he would impose on each count, of a non-parole period of 2 years with a head sentence of 3 years, without any statement of how he had arrived at the sentence, except that his Honour said "I have considered the matters on Form 1 when considering these counts". 40 At this stage the Crown's legal representative intervened, saying that the additional offences on the Form 1 were to be taken into account in sentencing the applicant for count 5, not counts 2, 6 and 7. His Honour said "All right. I'll do that then" but then repeated the same sentences for counts 2, 6 and 7 as he had previously announced, that is a non-parole period of 2 years and a head sentence of 3 years. 41 As to count 5, his Honour said "it is noted that the circumstances of this count are part of those for counts 6 and 7 and I note now that I have considered the matters on Form 1 when considering this count". 42 His Honour then formally announced the sentences he was imposing for the various offences. 43 After the sentencing judge had announced the sentences he was imposing there was an interchange between the legal representatives and the sentencing judge. Counsel for the applicant in the proceedings on sentence said that, although the sentencing judge had said he was taking into account the applicant's pleas of guilty, he had not quantified the amount of any discount. Counsel reminded the sentencing judge that, in addition to the pleas of guilty by themselves, there was "a saving of the complainants, plus the Ellis discount". 44 The sentencing judge accepted that "I didn't actually put a percentage, a strict percentage" (on the discount for the pleas of guilty). His Honour said that he had reduced the head sentences he had started with, because of the applicant's pleas of guilty. He said that the percentage discount he had allowed had varied; in the case of some of the offences it had meant 30 per cent and in the case of other offences it had meant 33 1/3 per cent. His Honour referred to the sentences on counts 8, 9, 11 and 13, where he said he had started with a putative head sentence of 4 years and had arrived at a head sentence of 2 ½ years. 45 A further matter on which there was an interchange between the legal representatives and the sentencing judge was the relationship between the total non-parole periods and the total head sentences, the total non-parole periods being over 93 per cent of the total head sentences. It was submitted by counsel for the applicant that the sentences set by the sentencing judge contravened s 44(2) of the Crimes (Sentencing Procedure) Act and that the total non-parole periods should not exceed three quarters of the total head sentences. The submissions of counsel for the applicant were supported to some extent by the Crown's legal representative. 46 After a short adjournment counsel for the applicant referred the sentencing judge to the decisions of the Court of Criminal Appeal in Simpson (1992) 61 A Crim R 58 and Close (1993) 65 A Crim R 72 and submitted that these cases were authority that an accumulation of sentences for multiple offences may provide a ground for finding special circumstances within s 44(2). 47 The sentencing judge held that s 44(2) of the Crimes (Sentencing Procedure) Act applies only to individual sentences and not to the totality of sentences for multiple offences and that, if he were to reduce the non-parole period on the last sentence to be served in order that the total of the non-parole periods would not exceed three quarters of the total head sentences, that last sentence would "end up being a totally parole period" and "it would look as though there was no punishment for the offence". His Honour concluded "So I will leave it as it is". 48 The grounds of appeal against sentence were:-

The learned sentencing judge was in error when he failed to properly apply section 44(2) of the Crimes (Sentencing Procedure) Act 1989, so that a reasonable ratio between the non-parole period and the balance of term was maintained in the total sentence he pronounced.

The sentencing judge applied the principal of totality in such a way as to constitute error.

The sentencing judge failed to distinguish between the offences committed in the 1980's and charged in counts 8 to 13 and the offences committed after 2002 and charged in counts 1 to 7 by failing to actually apply the regime of sentencing which existed between 1980 and 1985 in relation to both to the length of sentence and the non-parole periods for counts 8 to 13.

The learned sentencing judge erred in not making any finding in relation to special circumstances.

The overall sentence is in all the circumstances of the case manifestly excessive. 49 It will be convenient to consider the grounds of appeal in a different order from their numerical order in which they are set out above.

Ground three - The sentencing judge failed to distinguish between the offences committed in the 1980's and charged in counts 8 to 13 and the offences committed after 2002 and charged in counts 1 to 7 by failing to actually apply the regime of sentencing which existed between 1980 and 1985 in relation to both the length of sentence and the non-parole periods for counts 8 to 13. 50 As the terms of the ground of appeal make clear, this ground of appeal relates only to the sentences for the old offences (counts 8 to 13). 51 The ground of appeal is based on a principle stated by Spigelman CJ in R v MJR (2002) 130 A Crim R 481 at 487 (31):- "It is "out of keeping" with the provisions of s 19 of the Crimes (Sentencing Procedure) Act , for this Court to refuse to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender." 52 In so holding the Chief Justice departed from the view he had expressed in the earlier case of R v PLV (2001) 51 NSWLR 736. In MJR three of the other members of a five judge Court of Criminal Appeal concurred with the Chief Justice's statement of principle (Grove J at 492 [71], Sully J at 497 [105] and Newman AJ at 499 [111]). Mason P dissented. The principle stated in MJR has since been applied by this Court in AJB v Regina (2007 169 A Crim R 32 and MJL v Regina [2007] NSWCCA 261. 53 The principle stated by Spigelman CJ in MJR is clearly applicable to the old offences charged in counts 8-13, which were committed at various times between 1980 and 1986, if sentencing practice has since moved adversely to persons committing these kinds of offences. The offences in MJR itself had been committed between 1983 and 1989. 54 The sentencing judge was clearly conscious of the principle in MJR. In his remarks on sentence he said:- "So how do I approach the matter of sentencing for the matters before me, remembering that I must consider the law and the practice as it was at the time of the offences…?" 55 It was submitted, however, by counsel for the applicant that reference to sentencing statistics, a comparison of the sentences for the individual old offences with the sentences for what were submitted were similar new offences and reference to the law and practice relating to non-parole periods in sentences which existed at the time of the commission of the old offences showed that the sentencing judge had not in fact applied the principle in MJR. 56 As was remarked by several of the judges in MJR, including those in the majority, there are likely to be serious practical difficulties in seeking to apply the principle in MJR. At 496-497 (104) Sully J said:- "As a practical matter, the approach … cannot be implemented, as it seems to me either intelligently or intelligibly, unless it happens, … that there exists an authentic and credible body of statistical material that is capable of putting practical flesh upon the theoretical bones of an approach that entails reconstructing what would have been done twenty or so years previously." 57 In the present case the statistics of sentences provided to the sentencing judge and to this Court were statistics of sentences imposed for offences under s 61D(1) and s 61E(1) of the Crimes Act. However, they were not statistics of sentences imposed between 1980 and 1985 or even before the repeal of both sections which took effect on 17 March 1991; they were statistics of sentences imposed between October 1999 and September 2006 for old offences which had been committed before the sections were repealed. 58 It was contended by counsel for the applicant that the sentencing judges in the cases recorded in the statistics should be taken to have complied with the sentencing principle in MJR and that, therefore, the statistics were at least indirect evidence of sentencing patterns in the 1980s. 59 I am not persuaded that the statistics of sentences which were provided to the sentencing judge and to this Court establish that the sentencing judge contravened the principle in MJR. As already indicated, the statistics are only indirect evidence of sentencing patterns at the times when the offences were committed. The decision in MJR was not handed down until 12 April 2002, which was well into the period covered by the statistics and the decision in MJR overruled the earlier contrary decision in PLV. The number of cases in the statistics provided was quite small and in some cases there were sentences greater than the sentences imposed by the present sentencing judge. 60 The deficiencies in the statistics of sentences provided to the sentencing judge and to this Court also mean that, while it is commonly believed that sentences for child sexual assault have become heavier, that is that sentencing practice has moved adversely to an offender, the statistics provided do not establish this matter. 61 I do not consider that the comparison which was sought to be made between the sentences for the old offences and the sentences for what, it was submitted, were similar new offences shows that the sentencing judge failed to apply the sentencing principle in MJR. There are difficulties in making such a comparison between the sentences for the old offences and those for the new offences, because of differences in the description of the offences and differences in the maximum penalties and also differences in the application of other sentencing principles. 62 I note that the sentences for the new offences of aggravated indecent assault (counts 6 and 7, non-parole period two years balance of the term one year) are somewhat higher than the sentences for the old offences of indecent assault on a person under the age of 16 years (count 8, 9, 11 and 13, non-parole period one year eight months balance of the term 10 months). 63 I accept that the sentences for the old offences of sexual intercourse without consent with a person under the age of 16 years (counts 10 and 12) are the same as the sentence for the new offence of sexual intercourse with a child between the ages of 10 and 16 (count 5). However, the sentence for the new offence appears to me to be so lenient if not manifestly inadequate, when the sentencing judge was required to take into account the substantial criminality in the three additional offences, that I would reject it as a basis for comparison. 64 As to counsel for the applicant's final submission, I consider that it should be accepted that the sentencing judge failed to apply the law and practice relating to non-parole periods which existed at the time of the commission of the old offences. 65 The legislation in force in New South Wales in the 1980s relating to the setting of non-parole periods was discussed by Howie J in AJB at 40-41 (36), by Hidden J in MJL at (24) and by Bell JA in Featherstone v R [2008] NSWCCA 71 at (36). As stated in these cases, neither the Parole of Prisoners Act 1966 nor the Probation and Parole Act 1983 which commenced on 27 February 1984 (until it was amended with effect from 1 March 1988) required that a non-parole period be any particular proportion of a head sentence. It was not until the Sentencing Act 1989 came into force that there was any general statutory requirement that a non-parole period be a certain proportion of a head sentence. 66 In AJB, where the offences had been committed between 1979 and 1982, Howie J considered whether, in the absence of any statutory restriction in 1982 on the length of a non-parole period, there had been any sentencing practice in the setting of non-parole periods. At 41 (39) Howie J said:- "It seems that in 1982 a non-parole period was fixed at somewhere between a third and a half of the term of the sentence." 67 At 41 (37) his Honour had said:- "It seems to me that this Court should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant. It can do so on the basis that special circumstances under s 44 are to be found in the fact that there was a different sentencing practice in relation to fixing a non-parole period in 1982 which did not require a finding of special circumstances in order to avoid a statutory relationship between the non-parole period and the balance of the term. In Tatana v R [2006] NSWCCA 398 it was held that special circumstances could be found in order to overcome unfair disparity between co-offenders that would arise from "a too literal application of conventional sentencing principles and the requirements of s 44". It is consistent with that approach to find special circumstances in the present case in order to avoid unfairness that would arise by reason of the delay in the prosecution of the current charges as a result of a change in the law in relation to the determination of the appropriate non-parole period." 68 The parts of Howie J's judgment in AJB which I have quoted were referred to with approval in both MJL, where the offences were committed between 1974 and 1982, and Featherstone, where the offences were committed between 1982 and 1990. 69 In my opinion, I should, in accordance with the authorities I have referred to, find that there was a sentencing practice in the 1980s of usually setting a non-parole period of between one third and one half of the head sentence and hold that the existence of that sentencing practice should be regarded as amounting to special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act in sentencing the applicant for the old offences.

Ground two - The sentencing judge applied the principle of totality in such a way as to constitute error.

Ground five - The overall sentence is in all the circumstances of the case manifestly excessive. 70 These grounds of appeal can conveniently be dealt with together. The fifth ground of appeal is that the overall sentence, that is the total sentence, was manifestly excessive and not that the individual sentences were manifestly excessive. 71 In support of these grounds of appeal counsel for the applicant referred, appropriately, to well-known principles to be applied in sentencing for multiple offences, including the following:- 1. In Pearce v The Queen (1998) 194 CLR 610 at 624 (45) 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"

2. In Cahyahi v The Queen (2007) 168 A Crim R 41 Howie J said at 47 (27):- "[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.

[28] This issue was most recently discussed in R v MMK [2006] NSWCCA 272 where the Court stated:- One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v R (1988) 166 CLR 59; Pearce v R (1998) 194 CLR 610 and Johnson v R (2004) 78 ALJR 616."

In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260) … 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 …" 72 The issue for the Court on these grounds of appeal is whether the overall total sentence of 12 ½ years exceeded what it was within his Honour's sentencing discretion to regard as warranted in order to reflect the total criminality in the applicant's offending. The resolution of the issue is complicated by the mixture of old and recent offences in the applicant's offending. 73 It was submitted by counsel for the applicant that in deciding whether to make the sentences for different offences concurrent or cumulative the sentencing judge had adopted an incorrect approach, of making sentences concurrent if they were sentences for the same kind of offence, instead of an approach of making sentences concurrent or substantially concurrent if they were for offences involving the same complainant or offences committed on the same occasion. 74 It was submitted that the approach adopted by the sentencing judge had led him into error, for example in failing to make concurrent or substantially concurrent the sentence for count 5 and the sentences for counts 6 and 7, all of which were for offences involving the same complainant and committed on the same occasion.

75 Counsel for the applicant pointed out that the sentencing judge had not made any express statement of the overall sentence which he considered was required in order to reflect the total criminality, before allowing discounts for the pleas of guilty and for the voluntary disclosure of otherwise unknown guilt (R v Ellis (1986) 6 NSWLR 603). However, if a discount of 25 per cent had been allowed for the applicant's pleas of guilty, which were undoubtedly early pleas, and if a significant discount had been allowed for the Ellis factor, then it should be inferred that, in order to arrive at an ultimate overall sentence of 12 ½ years, the sentencing judge had adopted a starting point, before allowing those discounts, of at least 18 years; and it was submitted that such a starting point would have been manifestly excessive. It was submitted that the facts of the various offences, although serious, were by no means within the worse class of cases and the sentencing judge had erred in finding that "the overview of these offences and the circumstances must put these offences into the highest category of seriousness". 76 I would agree that it might have well have been preferable if the sentencing judge had adopted a different approach in selecting which sentences to make concurrent or partly concurrent or wholly cumulative and it is difficult to see any rational justification for some of the sentencing judge's decisions on whether, and to what extent, sentences should be concurrent or cumulative. However, the ultimate question still remains whether the overall sentence of 12 ½ years exceeded what was capable of being regarded by his Honour as warranted in order to reflect the total criminality in the offences. 77 I would accept that the facts of each of the offences, taken individually, were not within the worst class of cases of the offence. However, his Honour's assessment that the offences fell into the highest category of seriousness must be put into its context in the remarks on sentence. The factors relied on by the sentencing judge for making this assessment were "the scale" and "the regularity" of the offending and the period of time over which the offending had continued. In my opinion, these factors warranted the assessment the sentencing judge made of the degree of seriousness of the offences. 78 I accept that the sentencing judge should be taken to have allowed a discount of 25 per cent for the utilitarian value of the pleas of guilty and a discount of some significance for the applicant's disclosure of his previously unknown guilt (the Ellis discount). As for the Ellis discount, it is likely that after KRW had made a complaint about the offences which were charged in counts 1 and 4, the other offences against KRW and the offences against her sister EW would have been discovered, even if the applicant had not made any admissions. However, as the sentencing judge said in his remarks on sentence, the old offences committed in the 1980s might not otherwise have been discovered, in the absence of the applicant volunteering information about the offences before any complaint was made by the victims. I accept that, if the discounts for the pleas of guilty and the Ellis factor are added back, his Honour should be taken to have adopted a starting point of at least 18 years. Such a starting point would have been high but having regard to the number of offences, the number of complaintants and the time over which the offending had continued, it would, in my opinion, have been within his Honour's sentencing discretion. 79 I would reject these grounds of appeal.

Ground four - The learned sentencing judge erred in not making any finding in relation to special circumstances. 80 It was submitted, quite independently of the third ground of appeal, that the sentencing judge had erred in not making findings in relation to special circumstances. 81 Section 44(2) of the Crimes (Sentencing Procedure) Act in its present form applies only to sentencing for offences committed on or after 1 February 2003. However, the repealed s 44(2) which applies to sentencing for offences committed before 1 February 2003, although in somewhat different terms, was not significantly different. Under the repealed s 44(2) the non-parole period of a sentence was to be not less than three quarters of the term of the sentence unless the court decided that there were special circumstances for it being less. 82 In some of the sentences set by the sentencing judge the balance of the term did not exceed one third of the non-parole period (or, differently stated, the non-parole period was not less than three quarters of the term of the sentence). The sentences in this class were the sentences for offences 1, 4, 5, 10 and 12. In some of the sentences set by the sentencing judge the balance of the term did exceed one third of the non-parole period (that is the non-parole period was less than three quarters of the term of the sentence). The sentences in this class were the sentences for offences 2, 6, 7, 8, 9, 11 and 13. 83 In the principal part of his remarks on sentence the sentencing judge did not say, with regard to any of the sentences in the second group, that he had made a finding that there was special circumstances. In an interchange between the legal representatives and the sentencing judge after the sentencing judge had delivered the principal part of his remarks counsel for the applicant pointed out that the sentencing judge had not made any finding of special circumstances. 84 On this application it was submitted on behalf of the applicant that, as counsel had submitted to the sentencing judge in the proceedings on sentence that he should find special circumstances but the sentencing judge had not referred in the principal part of his remarks on sentence to whether he should make a finding of special circumstances, it should be inferred that the sentencing judge had failed to consider whether a finding of special circumstances should be made and, consequently, this Court should itself consider whether a finding of special circumstances should be made. Alternatively, it was submitted that, if the sentencing judge had considered the question of special circumstances, he had erred in not finding that there were special circumstances. 85 It was submitted that special circumstances should be found in:- 1. The applicant as a convicted child sexual assault offender was likely to have to serve his sentence in protective custody in more onerous conditions of custody than those applying to prisoners in the general prison population. The applicant gave evidence in the proceedings on sentence that, while on remand awaiting sentence, he had been confined to his cell 23 hours a day. 2. The applicant's medical condition, coupled with his age. There was evidence in the proceedings on sentence that the applicant suffers from asthma, hypertension, sleep apnoea and osteoarthritis. He has had knee replacement surgery. There was no mention of the applicant's medical condition in the remarks on sentence. 3. The applicant's prospects of rehabilitation, as demonstrated by his actions in attending the police station, making extensive admissions and voluntarily disclosing his guilt of offences and by his evidence in the proceedings on sentence that he had come to realise that he had been deceiving himself in believing he was not a paedophile and that he now desired to obtain assistance and to undergo treatment for his condition. 86 I do not consider that this Court should find that the sentencing judge failed to give consideration to whether a finding of special circumstances should be made. Section 44 of the Crimes (Sentencing Procedure) Act was the subject of extensive submissions and further oral argument before the sentencing judge. 87 In his remarks on sentence the sentencing judge did give consideration to the question of protective custody. I have already earlier in this judgment quoted the part of his Honour's remarks in which he said "there are a whole section of institutions which are given over…to provide appropriate secure custody for certain offenders…and protective custody prisoners are able to participate in the expected range of services". His Honour concluded:- "So I do not find that because of the nature of the offences for which he has been convicted that there should be an amelioration in the sentence because of the way he may be treated by others."

The conditions of custody to which the applicant had been subjected while on remand awaiting sentence would not be a reliable indicator of what might be his conditions of custody after he was sentenced.

I am not persuaded that the sentencing judge should have found special circumstances in the applicant's medical condition or his need and potential for rehabilitation. 88 I would reject this ground of appeal.

Ground one - The learned sentencing judge was in error when he failed to properly apply section 44(2) of the Crimes (Sentencing Procedure) Act 1989, so that a reasonable ratio between the non-parole period and the balance of term was maintained in the total sentence he pronounced. 89 There is a formal error in the statement of the ground in that the Crimes (Sentencing Procedure) Act was enacted in 1999, not 1989. As pointed out earlier in this judgment, s 44(2) of the Crimes (Sentencing Procedure) Act in its present form applies only to sentencing for offences committed on or after 1 February 2003. However, s 44(2) in its original form was not, for present purposes, substantially different. 90 I note that the Crimes (Sentencing Procedure) Act replaced the Sentencing Act, which was enacted in 1989. Section 5(2) of the Sentencing Act, which required that an additional term of a sentence not exceed one third of the minimum term of the sentence unless there were special circumstances, was substantially similar to s 44(2) of the Crimes (Sentencing Procedure) Act in both its original and current form. 91 I have earlier in this judgment summarised the interchange in the proceedings on sentence between the legal representatives and the sentencing judge concerning the ratio that should exist between the total non-parole periods of the sentences and the total head sentences. The sentencing judge had announced sentences such that the total non-parole periods were more than 93 per cent of the total head sentences. In the interchange the sentencing judge was referred by counsel for the applicant to the decisions of this Court in Simpson and Close. The sentencing judge held that s 44(2) of the Crimes (Sentencing Procedure) Act applies only to individual sentences and that, if he were to reduce the non-parole period of the last sentence to be served so that the parole period under that sentence was a quarter of the total sentences, it would appear that no real punishment was being imposed for that offence. 92 The sentencing judge was correct in holding that s 44(2), both in its original form and in its amended form, applies only to a sentence for an individual offence and not to a group of sentences for multiple offences. See for example R v Swan [2005] NSWCCA 252 at [19]. Even in the case of a sentence for a single offence, what s 44(2) prohibits is the balance of the term of the sentence exceeding one third of the non-parole period and not the balance of the term being less than one third of the non-parole period. 93 However, in Simpson and Close, the cases to which the sentencing judge was referred by counsel for the applicant, it was held that special circumstances can exist as a result of the imposition of cumulative sentences. In Close Hunt CJ at CL said at 60:- The fact that sentences are made cumulative one upon the other is also sufficient to constitute special circumstances within the meaning of s 5(2), of the Sentencing Act justifying … a departure from the "one-third rule"". 94 In such a case the balance of the term of the last sentence to be served is made greater than one third of the non-parole period of that sentence, so that the total balance is one third, or close to one third, of the total non-parole period. 95 Although there is no prohibition on a sentencing judge, when sentencing for a single offence, setting a period for the balance of the term which is less than one third of the non-parole period or, when sentencing for more than one offence, setting a total balance of less than one third of the total non-parole period, there have been many cases in this Court in which the reasoning in Simpson and Close has been applied. See GAC v R [2007] NSWCCA 287 at (67-68). 96 In the present case it would appear that, although referred by counsel for the applicant to Simpson and Close, the sentencing judge did not consult those authorities before confirming the sentences he had previously announced. The reason given by the sentencing judge for not departing from the sentences he had already announced, that if he reduced the non-parole period in the last sentence to be served it would appear that no real punishment was being imposed for that offence, has not been regarded as a sufficient reason for not reducing the non-parole period in a final sentence so as to achieve overall a ratio equal to, or close to, the ratio in s 44(2). 97 In the present case the approach in Simpson and Close should have been adopted by the sentencing judge. There was a quite extraordinary disproportion between the total non-parole periods and the total head sentences. The total non-parole periods were more than 93 per cent of the total head sentences. The applicant will require a lengthy period of supervision when he is released after having been imprisoned for many years. Although I do not consider that the applicant's need and potential for rehabilitation should have been held by the sentencing judge to amount to special circumstances, they are clearly matters warranting the setting of an overall balance of term or parole period in accordance with the ratio in s 44(2). 98 In my opinion, this ground of appeal should be allowed and the sentences imposed by the sentencing judge varied so that the total of the non-parole periods would be no more than approximately three quarters of the total head sentences.

Re-sentencing 99 I have held that:- 1. The third ground of appeal should be upheld in part, in that the sentencing judge in setting non-parole periods in the sentences for the old offences failed to comply with the sentencing practice which existed during the period when the old offences were committed of setting a non-parole period of between one third and one half of the head sentence. 2. The first ground of appeal should be upheld, in that the sentencing judge failed to impose sentences such that the total non-parole periods of the sentences would be no more than approximately three quarters of the total head sentences. 100 To give effect to the upholding in part of the third ground of appeal, the sentences set by the sentencing judge for the old offences could be varied by reducing the non-parole period of each sentence to between one third and one half of the head sentence. A factor which would favour the setting of a non-parole period at the lower end of the available range, that is at about one third of the head sentence, would be that the applicant's commission of the old offences became known only through his voluntary disclosure of his guilt of those offences. However, rather than impose a sentence containing a non-parole period of about one third of the head sentence set by the sentencing judge, together with a parole period of the rest of the head sentence, fixed terms of imprisonment equal to the appropriate non-parole periods can be set, because, if parole periods were set, they would be subsumed in the non-parole periods of subsequent sentences. 101 To give effect to the upholding of the first ground of appeal, it would be necessary to vary the dates on which some of the sentences commence and expire. 102 As I have indicated earlier in this judgment, there are a number of anomalies in the sentences which the sentencing judge imposed on the applicant. Section 7(1A) of the Criminal Appeal Act confers power on the Court of Criminal Appeal, when it quashes or varies the sentence passed by the sentencing judge on any count in an indictment, to quash or vary any sentence imposed by the sentencing judge for any other offence charged in another count in the same indictment. However, in exercising the power conferred in s 7(1A), the Court of Criminal Appeal is constrained by the need to observe the principles of procedural fairness. In the present appeal, although the related questions of whether the sentencing judge had erred in applying the principle of totality (the second ground of appeal) and whether the overall sentence was manifestly excessive (the fifth ground of appeal) were fully argued, relatively little attention was paid to the appropriateness of the sentences for individual offences. I consider that, as a consequence, the power of the court to interfere with the length of the sentences for individual offences is restricted. 103 I do, however, consider that this Court would be entitled to intervene, and should intervene, in relation to the sentence for offence 5. I have already expressed the opinion in this judgment that the sentence for offence 5 was extremely lenient, particularly when the sentencing judge in sentencing for offence 5 was required to take into account the substantial criminality in the three additional offences, and the inadequacy of the sentence for offence 5 was a matter which was raised at the hearing of the application. 104 It is very doubtful that the sentencing judge did in fact take the additional offences into account in sentencing the applicant for offence 5. I have already noted that, when the sentencing judge announced the sentences he was imposing for offences 2, 6 and 7, he said that he had taken the additional offences into account in sentencing for those offences and the sentencing judge maintained the same sentences for offences 2, 6 and 7, even after he had been reminded by counsel that the additional offences were to be taken into account in sentencing for offence 5 and not offences 2, 6 and 7. The sentence the sentencing judge imposed for offence 5 was the same as the sentences his Honour imposed for offences 10 and 12, which were offences of the same kind as offence 5 but which did not involve any additional offences to be taken into account. 105 In my opinion, the sentence for offence 5 should be increased to five years. I hasten to add that the increase in the sentence for offence 5 will not, under the arrangement of sentences I will propose, have the effect of increasing the overall sentence. If the sentence for offence 5 is increased to five years, that sentence can be made the last sentence to be served and can be made to include an extended balance of the term so as to give effect to the upholding of the first ground of appeal. 106 As to the overall length of the sentences, although I have rejected grounds of appeal 2 and 5, I would, because this Court is intervening to some extent, reduce the total length of the sentences from 12 ½ years to 12 years. Although I do not consider that his Honour's assessment of the total criminality of the applicant was outside the permissible range, I would make a somewhat greater allowance than his Honour would appear to have made for the Ellis discount to which the applicant was entitled. I would also, because this Court in intervening and even though I have rejected the fourth ground of appeal, find special circumstances in the circumstances submitted by counsel for the applicant. 107 I do not consider that this Court should seek to vary sentences which the applicant has already completed serving, that is the sentences for offences 1 and 4, or the sentence which the applicant has already commenced serving, that is the sentence for offence 2. I would, however, vary the other sentences as follows:- 1. The sentence for offence 3 so that it commences on 14 February 2009 and expires on 13 August 2009. It would accordingly be fully concurrent with part of the non-parole period of the sentence for offence 2, which was a more serious offence committed against the same complainant. 2. The sentence for offence 8 by setting a fixed term of imprisonment of 10 months (one third of the head sentence set by the sentencing judge) commencing on 14 August 2009 and expiring on 13 June 2010. 3. The sentences for offences 9 and 11, which were offences of indecent assault committed against the same complainant, by imposing concurrent fixed terms of imprisonment of 10 months (one third of the head sentences set by the sentencing judge) commencing on 14 February 2010 and expiring on 13 December 2010. 4. The sentence for offence 10 of sexual intercourse without consent committed against the same complainant as offences 9 and 11 by imposing a fixed term of imprisonment of 14 months (about one third of the head sentence set by the sentencing judge) commencing on 14 August 2010 and expiring on 13 October 2011. 5. The sentences for offences 12 and 13, an offence of sexual intercourse without consent and an offence of indecent assault which were committed on the same occasion against the same complainant, by imposing concurrent fixed terms of imprisonment of 10 months (one third of the head sentence set by the sentencing judge) commencing on 14 June 2011 and expiring on 13 April 2012 and of 14 months (about one third of the head sentence set by the sentencing judge) commencing on 14 June 2011 and expiring on 13 August 2012. 6. The sentences for offences 6 and 7, offences of indecent assault committed against the same complainant, by imposing concurrent sentences of a non-parole period of one year eight months commencing on 14 August 2012 and expiring on 13 April 2014 and a balance of the term of 10 months. 7. For offence 5, taking into account the additional offences, I would impose a non-parole period of one year commencing on 14 August 2013 and expiring on 13 August 2014 and a balance of the term of four years commencing on 14 August 2014 and expiring on 13 August 2018. 108 Under the sentences as proposed by me, the total length of the head sentences would be 12 years and the total length of the fixed terms and non-parole periods would be eight years. 109 In my opinion, the following orders should be made:- 1. Leave to appeal granted. 2. Appeal against sentence allowed in part. 3. Confirm the sentences for offences 1, 2 and 4. 4. Quash the sentences for offences 3, 5, 6, 7, 8, 9, 10, 11, 12 and 13 and in lieu thereof impose the following sentences:- · For offence 3 - a fixed term of imprisonment of six months commencing on 14 February 2009 and expiring on 13 August 2009. · For offence 8 - a fixed term of imprisonment of 10 months commencing on 14 August 2009 and expiring on 13 June 2010. · For offences 9 and 11 - concurrent fixed terms of imprisonment of 10 months commencing on 14 February 2010 and expiring on 13 December 2010. · For offence 10 - a fixed term of imprisonment of 14 months commencing on 14 August 2010 and expiring on 13 October 2011. · For offence 12 - a fixed term of imprisonment of 14 months commencing on 14 June 2011 and expiring on 13 August 2012. · For offence 13 - a fixed term of imprisonment of 10 months commencing on 14 June 2011 and expiring on 13 April 2012. · For each of offences 6 and 7 - a non-parole period of one year eight months commencing on 14 August 2012 and expiring on 13 April 2014 and a balance of the term of 10 months. · For offence 5 and taking into account the additional offences - a non-parole period of one year commencing 14 August 2013 and expiring on 13 August 2014 and a balance of the term of four years commencing on 14 August 2014 and expiring on 13 August 2018. The earliest date on which the applicant will be eligible for release on parole will be 13 August 2014. 110 ADAMS J: I agree with James J.

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