Dimian v R

The offences charged

1. The offences were committed on 3 April 1993. The identity of the Applicant as the offender was only established in 2013 when a "cold case" notification was received that the DNA profile taken from the Applicant matched vaginal and vulval samples taken from the victim. At that time, and for many years preceding that time, the Applicant was in custody serving other sentences for similar offences all of which were committed after the present offences. The present offences were the first offences of a sexual nature known to be committed by the Applicant.
2. Just before midnight on Friday the 2nd of April 1993, RA ("the victim") went to the Crescent Hotel in Fairfield to meet friends. She was 31 years of age at the time. She found her friend Pam upstairs, and joined her at the bar.
3. The Applicant approached the victim at the bar and introduced himself. He struck up a conversation with the victim, who told him she was having one drink and would then go home. The Applicant offered to drive the victim home, but she declined the offer. He then said to her, "You can trust me. I'll drop you home. I'm a Cop."
4. The victim laughed, so the Applicant repeated himself two to three times. The victim then agreed the Applicant could drive her home as she believed he was a police officer. They walked out of the club to where the Applicant had parked his car. The victim believed the car was a red Holden Commodore. The victim told the Applicant she lived along The Horsley Drive. She got into the Applicant's car in the front passenger seat and he started driving.
5. When they approached a round-about, the Applicant drove straight through instead of turning left, and the victim realised they were going the wrong way. She asked the Applicant where he was going and he replied, "Hang on, I've just got to go and do something." As they were driving, he was making conversation with the victim about where she worked and other matters.
6. The Applicant turned off Smithfield Road into parkland attached to the Fairfield Showground. The victim asked, "Where the hell do you think you're going?" The Applicant didn't respond. He drove along a dirt road and then stopped the car. The victim said, "I want you to take me back". The Applicant replied, "No, get used to it, you're not going anywhere." The victim became scared and thought that if she got out of the car, she may be able to walk away. She picked up her handbag from the foot well and opened the passenger door. The Applicant grabbed her hair and pulled her towards him. She turned around and scratched his left cheek with her fingernails. She could see at least three scratch marks on his face. The Applicant punched the victim in the face and said, "You're a fucking bitch for scratching me." He said something to the victim about being married and his wife seeing the scratch marks. The victim started crying. The Applicant said, "Stop carrying on like a fucking idiot. You're not going anywhere until I fuck you." The victim told the Applicant she needed to go to the toilet, thinking this would be a way she could run away. They both got out of the car.
7. The victim started running but the Applicant caught up to her. He grabbed the victim by the hair and threw her to the ground. He slapped her face and said, "You made me hurt you." The victim was crying, kicking out with her legs and swinging her arms trying to get away. The Applicant knelt on the ground next to the victim. She asked him if this was the only way he could get women, and he said it wasn't as he had a wife. The victim said, "Well, let me go then", and the Applicant replied, "You're not going anywhere." The Applicant was detaining the victim with the intent to hold her for sexual gratification.
8. The Applicant grabbed the victim's handbag from her and started looking through its contents. He found something that had the victim's name and address on it and said, "[R], [xx] Horsley Drive. I know where you live so don't try and get me into any trouble." The Applicant moved away from the victim and she got up and started running towards some street lights. The Applicant chased after her and grabbed her by the hair and the back of her shirt. He threw her to the ground and kicked her to the left shoulder with force and said 'You're a fucking slut." The victim screamed out and started to get up. The Applicant said, "Look you fucking idiot, you left your handbag", and hit the victim in the head with her bag. This knocked her to the ground again. He said "Look do you want me to keep hurting ya." He told the victim to go back to the car, but she refused.
9. The Applicant grabbed the victim by the hair and the waist, and tried to carry her back to his car. She grabbed onto a tree and started kicking out at the Applicant. He grabbed her by the throat with one hand telling her if she walked back to his car, he would drive her back to the club in Fairfield. She refused and started punching out and kicking at him. The Applicant threw the victim to the ground and said, "I'll just do it here then." He asked "Are you going to give me any more trouble. Do you want me to hurt you again?" The victim said no.
10. Whilst being knocked to the ground and dragged, slapped and kicked the victim sustained abrasions and scratches to her chest, arms, legs and feet.
11. The victim was laying on her back on the ground. She was wearing a white cheese-cloth skirt with a petticoat underneath and a black top with short sleeves. The Applicant said, "Take off your pants and put your legs up." The victim took her underpants off, but refused to put her legs up. The Applicant grabbed the victim by the hair and said, "Say it, you are a slut." The Applicant knelt down between the victim's legs and undid the fly of his jeans. The victim shut her eyes. The Applicant grabbed the back of her head and pulled it towards his penis. He said, "Suck this, and if you bite it I'll kill you." The victim who was shaking and crying said, "I can't, I'll be sick." The Applicant again demanded the victim suck his penis, but she turned her head to the side and started retching. She then laid back on the ground. The Applicant said, "I want you to give me a head job". The victim who was crying replied, "I can't, you'll have to kill me."
12. The Applicant stood up and pushed his jeans and underpants down to his ankles. He then knelt down near the victim. He shoved two fingers inside her vagina with force, and she screamed out in pain. The Applicant removed his two fingers, but then inserted three fingers inside the victim's vagina with force. He moved his fingers around inside the victim's vagina, which caused her pain. She yelled, "Stop, it's hurting!" The victim felt as if the Applicant pushed his three fingers into her vagina as far as they could go. She could hear the Applicant making moaning noises as if he were masturbating at the same time. At the time of, or immediately before or after the sexual assault the Applicant inflicted actual bodily harm on the victim.
13. As a result of having three fingers forcibly shoved into her vagina the victim sustained a 0.5cm linear graze to the left of the posterior fouchette (frenulum of labia minora) and a 0.3cm red linear graze to the left of the urethral orifice.
14. After a period of time the Applicant said to the victim, "Open your legs up further." She moved them a little bit as she didn't want him to hurt her. He pushed her shoulder and said, "Open your legs or I'll roll you over and fuck you up the arse." The victim, who was crying, moved her legs apart in compliance with the demand. The Applicant laid down on top of the victim and inserted his penis into her vagina. He held her down with his arm across her neck so that she could not move. As a result the victim sustained bruising to her neck. He thrust his penis in and out of the victim's vagina for about five minutes. The victim continued to cry. At one stage the Applicant said, "You asked for this."
15. The Applicant withdrew his penis and stood up. The victim opened her eyes and saw the Applicant pulling up his jeans. She sat up and pulled her skirt down. The Applicant picked up the victim's handbag and looked through its contents again. He then threw the bag at the victim.
16. The Applicant said to the victim he would take her home. She didn't want to get back into his car, so she told him she had a friend who lived nearby. He tried to pull her by the arm, but she resisted. She then turned around, ran to a nearby road and tried to wave down passing cars. The Applicant did not follow her.
17. The victim felt ejaculate coming out of her vagina and realised she wasn't wearing underpants. She continued to walk along Smithfield Road until a taxi stopped and the driver asked if she was all right. She said, "I've been raped and I don't know where I am." She got into the taxi and was driven to the Wetherill Park police station.
18. A short time later, police drove the victim along Smithfield Road, and she was able to show them where the assault had occurred near the Fairfield Showground.
19. At 8:00am that day, Saturday the 3rd of April 1993, police took the victim to Liverpool Hospital where a sexual assault investigation was undertaken. She gave a detailed account of the assault to the doctor and a counsellor, and reported that the accused asked her to suck his penis, and had digital and penile penetration of her vagina. The doctor observed 32 recent bruises, abrasions and scratches on the victim's neck, chest, arms, hands, legs, feet, buttocks and back. These included two 2.5cm long scratches over her right buttocks cheek that were bleeding. The genital examination revealed, as noted earlier, injuries to the posterior fourchette and the urethral orifice. Vulval, upper and lower vaginal swabs and smears, blood and scrapings from under her right fingernails were taken for forensic investigation. The victim's skirt, bra, t-shirt and slip were also seized by Police. Semen was detected on the high vaginal, low vaginal and vulval smears, the skirt and the slip.
20. As mentioned, in 2013 a 'cold case' notification matched the DNA profile taken from the Applicant with the vaginal and vulval samples taken from the victim. The Applicant's DNA profile from the sample obtained in September 2013 was compared against the sperm fraction of the DNA recovered from the combined vaginal and vulval swabs taken from the victim during the SAIK in 1993. The DNA recovered has the same profile as the Applicant, and is expected to occur in fewer than 1 in 100 billion individuals in the population.

Subsequent offending

1. The Applicant committed offences of aggravated sexual assault and aggravated indecent assault against a 14 year old girl (MG) on 26 June 1993. His conviction for those offences was quashed on appeal and a retrial was ordered. He subsequently pleaded guilty to one count of aggravated sexual assault and was sentenced by Judge O'Reilly on 23 March 1998 to imprisonment for four years and ten months concluding 22 December 2003 with a non-parole period of two years and four months commencing 23 March 1998 and concluding 22 July 2000.
2. In July 1996 the Applicant committed a further offence of sexual intercourse with a child aged ten to 16 years (RS) for which he was sentenced by Judge Sides QC on 28 November 2013. I will return to that sentence later in the chronology.
3. Prior to being apprehended for that offence he committed an offence of sexual intercourse without consent against another woman (XW) on 6 October 2002. He was sentenced for that offence on 27 September 2004 by Judge Marien SC to a non-parole period of six years commencing 18 February 2003 and expiring 17 February 2009 with an additional term of three years expiring 17 February 2012.
4. Before he was apprehended for the offence committed 6 October 2002 he committed a further offence of sexual intercourse without consent against another woman (ST) on 14 October 2002. He was sentenced for that offence on 4 August 2005 by Judge Marien to imprisonment consisting of a non-parole period of six years partly accumulated on the earlier sentence imposed by Judge Marien. The non-parole period commenced 18 February 2008 and expired 17 February 2014 with an additional period of three years expiring 17 February 2017.
5. On 28 November 2013 the Applicant was sentenced by Judge Sides for the offence committed in July 1996. He was sentenced to a non-parole period of three years commencing 18 February 2012 and concluding 17 February 2015 with an additional term of three years concluding 17 February 2018.

Grounds of appeal

1. The Notice of Appeal filed 18 April 2016 pleaded two grounds as follows: 1. The sentencing judge erred by imposing an aggregate sentence that exceeded the sum of the indicative sentences that he would have imposed for each offence had he not sentenced the Applicant to an aggregate sentence of imprisonment. 2. The sentencing Judge failed to reflect the principle of totality in the aggregate sentence he imposed.
2. On 22 August 2016 the Applicant filed Amended Grounds of Appeal on which he sought leave to rely at the hearing adding these grounds: (3)(a) The sentencing judge erred by failing to consider the overall appropriate sentence to be served by the Applicant having regard to the Applicant's history of incarceration. (3)(b) The sentencing judge erred by imposing a sentence upon the Applicant which, when accumulated upon the Applicant's existing sentencing of imprisonment, resulted in a ratio of the effective non-parole period to the overall term of 85%. (4) The sentencing judge erred by failing to give adequate weight to the circumstance of delay.

Subjective matters

1. These matters may be relatively briefly stated since, apart from the Applicant's progress in addressing his sexual offending, they were not matters put forward as having any particular relevance to the sentencing issues this Court needs to determine.
2. The Applicant was the second eldest in a family of four children of Egyptian parents. The family moved to Australia in about 1969. After the Applicant completed his Higher School Certificate he went into the retail industry and worked in a number of department stores working his way up to the position of store manager at a Norman Ross store. He attended Sydney University part time and completed a degree in Marketing whilst continuing to work fulltime. He worked in marketing for Rothmans, then Repco, then WD and HO Wills prior to his arrest in 1993 for the offence in respect of which he was sentenced by Judge O'Reilly. He was then aged 31 years.
3. He married at the age of 19 and divorced in 1996 although the dynamics of the marriage changed in 1991 when his wife started living more independently and that led to the deterioration in their relationship. They separated in 1993 when the Applicant was charged with the offence committed in that year for which he was sentenced by Judge O'Reilly.
4. There were three children born to the marriage but one died very young from cot death. His daughters are now adults.
5. The Applicant has been assessed by a number of psychologists over the years with particular attention being given to his sexual offending. The most recent report which was before the Sentencing Judge was that of Mr Yat Sang Cheung dated 12 April 2015. Mr Cheung considered that the Applicant suffered from major depression accompanied by clinically significant symptoms of generalised anxiety and post-traumatic stress. Mr Cheung also assessed him using the Static-99R instrument which indicated that he belonged to a moderate to high risk category of sexual reoffending. He also assessed the Applicant using the Risk for Sexual Violence Protocol which assesses dynamic and static risk factors. On that Protocol he was assessed as being in the moderate to high range of risk of reoffending. By the time Mr Cheung saw the Applicant he had completed the intensive CUBIT program for sex offenders in 2013.
6. The Sentencing Judge also had a report from the Acting Therapeutic Manager of the CUBIT program and a psychologist who worked in that program in relation to the Applicant's participation within treatment and his behaviour within that program. This report was dated 20 June 2013. The offences with which the report was principally concerned were the two offences committed in October 2002. However, the report took into account the earlier sexual offending but not the index offences nor the offences for which he was sentenced by Judge Sides on 28 November 2013.
7. The report said that the Applicant had a tendency to blame others and, with his limited insight into that behaviour, demonstrated some difficulty accepting responsibility for his behaviour in general. The report identified two pathways to offending being hostility towards women and a sense of entitlement. In the assessment of dynamic factors the report considered that the Applicant appeared to hold distorted attitudes towards women and had a history of poor cooperation with supervision. The report considered that he appeared to have a good understanding of longer term strategies by which to work towards goals. However, he tended to struggle with intervening in his behaviours during times of intense discomfort. The report concluded that taking into account both static and dynamic risk factors his risk rating was moderate to high.
8. The Applicant relied also on references from two clergymen who have been ministering to the Applicant. One was Father Tadros El-Bakhoumi who has been visiting the Applicant in prison for more than 12 years. Father Tadros said that in April 2015 the Applicant was a totally different person, very mature in understanding and who was very remorseful. His life had changed from the person he was. Father Tadros offered for the Applicant to live with him and others at a monastery under his supervision at Tarago near Goulburn. The other reference was from the Anglican chaplain at Long Bay Correctional Centre, the Reverend Colin Sheehan.

The course of the appeal

1. The Crown had addressed in her written submissions what was asserted to be the error referred to in ground 1 of the appeal, namely, that the Sentencing Judge had imposed an aggregate sentence that exceeded the sum of the indicative sentences. The Crown submitted that if the Sentencing Judge intended the indicative sentences to represent head sentences for each of the offences then error was conceded. However, the Crown submitted that there was no statutory requirement that indicative sentences represent a head sentence relying in that regard on what was said by Basten JA in McIntosh v R [2015] NSWCCA 184 at [139]. The Crown submitted, essentially, that it was a matter of construction of the Sentencing Judge's Reasons whether he was intending that the indicative sentences were head sentences or non-parole periods.
2. The Crown submitted there were three reasons to suggest that his Honour was referring to the non-parole period. First, the Sentencing Judge set the aggregate sentence, both the head sentence and the non-parole period, and then immediately indicated the indicative sentences. The Crown submitted that it could not be supposed that the Sentencing Judge would have intended the head sentence to exceed the sum of the head indicative sentences for each offence.
3. Secondly, the non-parole period of the aggregate sentence of six years was only six months higher than the indicative sentence for the offence of aggravated sexual assault. Partial accumulation of six months for the offence of detain for advantage was consistent with the Sentencing Judge having appropriately permitted a large degree of concurrency in the sentences for the two offences in view of the overlap in criminality between that offence and the offence of aggravated sexual intercourse.
4. Thirdly, viewing the indicative sentences as non-parole periods was consistent with the Sentencing Judge having formed the view that the offence of aggravated sexual assault was in the upper end of the range of objective seriousness for such offences and deserving of severe punishment. A head sentence of five years and six months for that offence would not accord with that assessment of objective seriousness.
5. The Court indicated at the outset of the appeal that, having considered the Crown's submissions, it was of the view that there was a clear error on the face of the Sentencing Judge's reasons. The Court's reasons for that approach are these.
6. Section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) enables the Court to impose an aggregate sentence with respect to all or any two or more offences. Sub-section (2) says that the Court must indicate "the sentence that would have been imposed for each offence". On any proper construction of s 53A seen in the context of the whole of the Sentencing Act, the sentence that would have been imposed (called the indicative sentence) must be a reference to the overall sentence. The Sentencing Act does not contemplate two sentences for any one offence. It contemplates a sentence and in many cases a non-parole period and a balance of the term.
7. In JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 R A Hulme J (Hoeben CJ at CL and Adamson J agreeing) set out at [39] a number of propositions emerging from the legislative provisions and the cases in relation to aggregate sentencing. Any suggestion that an indicative sentence is the non-parole period is inconsistent with those propositions. In particular, the requirement in s 54B(4) to indicate the non-parole period for an indicative sentence where the penalty for the offence carries a standard non-parole period, and the absence of a requirement to state a non-parole period in s 53A, is the strongest indication that an indicative sentence is the head sentence that would have been imposed. Nothing said by Basten JA in McIntosh suggests otherwise. The only circumstance where an indicative sentence might be thought to equate with a non-parole period would be where the Sentencing Judge expressly said that the indicative sentence was to be treated as a fixed term which, as Basten JA notes in McIntosh at [139] is to be equated with a non-parole period.
8. There is nothing in the Remarks of the Sentencing Judge in the present case to suggest that the indicative sentences were to be fixed terms which, as Basten JA points out in McIntosh at [140] is not a term that appears in the Sentencing Procedure Act. It is the term employed when a judge does not set a non-parole period pursuant to s 45 of the Act.
9. Accordingly, the indicative sentences referred to by the Sentencing Judge must be regarded as the head sentences for each of the offences. Inasmuch as the total of them was less than the aggregate sentence imposed, error has been demonstrated.
10. That conclusion meant that the other grounds, including the grounds in the Amended Grounds of Appeal, did not need to be pursued although the issues they raised were relevant on the re-sentencing that needed to be carried out by reason of what was said in Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601.

Submissions on re-sentence

1. The Applicant submitted that there were three matters to which close attention needed to be given. The first was the appropriate proportion between the total effective non-parole period and the overall term to be served by the Applicant. The second matter involved the proper application of the principle of totality which goes beyond seeking an appropriate ratio between the non-parole period and the total sentence. The third matter was the matter of delay which the Applicant submitted was a significant and relevant factor in the sentencing exercise.
2. In dealing with the first and second of those matters the Applicant submitted that it would be appropriate to apply a 75% ratio to produce a total effective non-parole period of 15 years. That would involve a reduction in the non-parole period of two years while leaving the head sentence at nine years. The Applicant submitted that the same result could be achieved by backdating the sentence to a greater extent than the Sentencing Judge had done. The Applicant drew attention to matters concerning totality discussed in R v MAK, R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159. The Applicant drew attention to the danger of institutionalisation given the length of the sentences already served by him.
3. The Applicant submitted that the evidence concerning his rehabilitation was such that a longer of period of parole was required to assist in that process. The Applicant pointed to the CUBIT report which indicated the therapeutic gains that could be made under appropriate supervision.
4. On the issue of delay the Applicant submitted that the Sentencing Judge had focused on two of the three relevant considerations only, being prospects of rehabilitation and having the offence hanging over the offender's head. The third consideration that was not dealt with was the fact that the offences could properly be regarded as stale offences. The Applicant submitted they were stale offences because they occurred some decades ago, he had been severely and excessively punished in the interim period, the interim offending had been like offending and the offending was for offences that post-dated the present offences.
5. The Applicant said that these three principal matters (ratio, totality and delay) should result in an adjustment to the sentence which might involve the overall sentence but should certainly result in an adjustment of the non-parole period.
6. The Crown submitted that the offence involved serious violent conduct of sexual assault against a young woman and included impersonating a police officer to enable the Applicant to take advantage of the victim. The criminality needed to be separately recognised from the other offending and needed to be the subject of specific denunciation. The Crown accepted that adjustments needed to be made to the level of accumulation on the existing sentences. There was not any need to look at the overall sentences to ensure that the statutory ratio was complied with but there may need to be an adjustment between the non-parole and the parole periods. The Crown submitted that adjusting the accumulation with nothing more was not going to bring about any adjustment between the non-parole period and the overall sentence. The Crown submitted that rather than modifying the head sentence and making a significant adjustment to accumulation the better course would be to adjust the statutory ratio for the present offences to a greater extent than had been done.

Determination

1. The overall effect of the sentences identified earlier was that the Applicant had been in consistent custody since 18 February 2003. With the sentence under appeal unadjusted the Applicant will remain in custody at least until 16 February 2020, a period of 17 years. The balance of term is three years producing an overall ratio of 85%.
2. It should be observed that these offences were serious offences and that the Sentencing Judge's assessment of the offending as falling at the upper end of the range of objective seriousness and of deserving severe punishment should be accepted. Where the maximum penalty for each of the offences charged and, for that matter, the offence on the Form 1, was 20 years imprisonment, there can be no criticism of the sentence imposed by the Sentencing Judge when seen independently of the earlier sentences.
3. In Humphries v R; Ponfield v R [2016] NSWCCA 86 the issue of sentencing offenders where a prior sentence was being served was discussed in the joint judgment of Davies and Beech-Jones JJ (with whom Hoeben CJ at CL agreed) as follows: [49] In Mill v The Queen (1988) 166 CLR 59 at 66-67 the joint judgment said: In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second count, and eight years cumulative on the third count, making an aggregate head sentence of eighteen years. Yet that, it seems to us, is the practical effect of the sentence imposed by his Honour. On the other hand, the notional exercise which we have just described tends towards a conclusion that a sentencing court dealing with all three offences at the same time would have dealt with the third offence in a similar manner to that adopted when dealing with the second, namely, by imposing a sentence of eight years with five or six years of it concurrent with the earlier sentences. The aggregate head sentence in that event would have been either twelve or thirteen years. An appropriate non-parole period may well not have been much more than the eight years actually imposed by the Victorian court. But, of course, it is not possible for a second sentencing court to impose a concurrent sentence of the kind we have contemplated in the absence of statutory provisions enabling the backdating of the new sentence (cf. Reg. v. Gilbert (1975) 1 WLR 1012; (1975) 1 All ER 742 and Reg. v. Garrett (1978) 18 SASR 308). Section 20 of The Criminal Code (Q.) does not allow such a course to be taken. Without statutory authority, the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries. [50] In Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45] McHugh, Hayne and Callinan JJ said: [45] To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. 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: Mill v The Queen (1988) 166 CLR 59 [51] This passage in Pearce describes the approach most commonly adopted when addressing questions of accumulation and totality namely, first identifying the appropriate sentence for the subject offence(s) and then considering questions of accumulation, concurrency as well as totality (the "Pearce approach") often by reference to the commencement date of the sentence. The passage from Mill set out in [49] addressed the circumstance in which a sentencing Court is required to address questions of totality in the circumstance where another court has already imposed a sentence on the offender and the sentencing court is precluded from backdating the sentence. Hence the High Court referred to the sentencing court imposing a lower head sentence and aggregating it even though the sentence imposed may "fail to reflect adequately the seriousness of the crime" (the "Mill approach"). [52] In Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [26] the High Court confirmed that, depending on the legislative context, both approaches were open to sentencing judges and, in particular, the adoption of the Mill approach is not confined to circumstances where the offender had already been sentenced by another court and the sentence to be imposed cannot be backdated: "The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates …. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands."
4. Nothing in s 44 of the Sentencing Act nor in the authorities suggests the need for any consideration of the ratio of the non-parole period to the whole sentence independently of principles of totality.
5. The first question that must be asked, following Mill v The Queen (1988) 166 CLR 59, is what would be the appropriate head sentence if the Applicant had been sentenced for all of the offences for which he has been incarcerated since 18 February 2003? In this case, would a sentence of 20 years imprisonment be the appropriate sentence? The Applicant submitted that such a sentence with a total non-parole period of 17 years is well beyond what would have been imposed because it is the sort of sentence that would have been imposed for murder.
6. A further consideration is that of institutionalisation for someone who has been serving a sentence now for 13 and a half years. That is a consideration of some significance for a repeat sex offender who at some stage, even allowing for the making of a continuing detention order under the Crimes (High Risk Offenders) Act 2006 (NSW), will have to be returned to the community at some stage. Two of the purposes of sentencing in s 3A of the Sentencing Act are the promotion of the rehabilitation of the offender and the protection of the community from the offender. Although keeping an offender in custody obviously protects the community in the short term it may not do so in the long term if adequate rehabilitation is not achieved particularly for a repeat sex offender. Avoiding an offender becoming institutionalised can only assist rehabilitation and, in the case of a repeat sex offender, the community is also protected by an adequate period on parole to further the rehabilitation that has taken place in custody.
7. In my opinion those purposes of sentencing as well as all of the others are best achieved in the present case by leaving the head sentence at nine years but adjusting the non-parole period relative to that head sentence and by commencing the sentence at an earlier time than was done by the Sentencing Judge.
8. Although the submissions dealing with delay had been directed to establishing error on the part of the Sentencing Judge, it is necessary for this Court when resentencing to consider the issue of delay.
9. In R v Todd [1982] 2 NSWLR 517 at 519 Street CJ identified three matters relevant to delay; the first concerned the progress of the offender's rehabilitation during the term of an earlier sentence; the second concerned the offender's being left in a state of uncertain suspense as to what will happen to him when he comes up for sentence on the subsequent occasion; the third concerned the need for understanding and flexibility of approach when sentencing for a stale crime.
10. In the present case, whilst it can be said on the evidence from the psychologist and those administering the CUBIT program that some progress to rehabilitation has been made, it is clear that it has some distance to go. Secondly, there is no evidence from the Applicant suggesting any state of uncertain suspense arising from the impending sentence after he was charged with these crimes committed a considerable period of time earlier. Thirdly, it is difficult, as Hall J remarked during argument, to consider that such a grave offence as that committed by the Applicant against the present victim can be said to be stale and treated in a low grade manner.
11. I have some difficulty accepting, in a circumstance where the Applicant had the opportunity of admitting to these crimes since the time they were committed by him, that the delay since they were committed should result in a sentence less than appropriate for the objective seriousness of the crime, absent some unsatisfactory delay by prosecuting authorities or some compelling evidence of remorse and rehabilitation with no further offending in the meantime. In the present case the opposite is demonstrated by the continued offending in a precisely similar way on a number of occasions. There is no evidence of any unsatisfactory delay by the police or the prosecution. I consider that there is little to be said for delay being a mitigating factor on the facts of this case.
12. In my opinion the Applicant should be sentenced to a non-parole period of four years and six months commencing 17 February 2013 and expiring 16 August 2017 with an additional term of four years and six months expiring 16 February 2022. The need for the lower non-parole period and the increased concurrency with the prior sentence arises only because of a proper application of the principle of totality. As noted earlier, the sentence imposed was, without considerations of totality, an entirely appropriate one for what was very serious offending. The reduced sentence should not be seen otherwise as an adequate sentence for the offences committed. It results in a ratio of a little over 76%, when the whole of the sentences are considered, and provides a reasonable period on parole to assist in rehabilitation and enabling the Applicant to learn to live again in the community.

Conclusion

1. I propose the following orders: 1. Grant leave to appeal; 2. Appeal allowed; 3. Quash the sentence imposed in the District Court on 17 April 2015. In lieu, sentence the appellant to an aggregate sentence of four years and six months commencing 17 February 2013 and expiring 16 August 2017 with an additional term of four years and six months expiring 16 February 2022.

Amendments 18 October 2016 - Name of counsel on coversheet amended 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: 18 October 2016