the grounds of appeal
21 Two grounds of appeal were pleaded. They were:
"1. The sentencing judge erred in the application of the principle of totality.
2. The sentence is (sic) manifestly excessive."
22 The argument that was put was, firstly, that the judge erred in the application of the principles stated in Pearce v The Queen [1998] HCA 57; 194 CLR 610; that the accumulation of the sentences resulted in a manifestly excessive overall sentence; and that insufficient weight was given to the subjective circumstances of the applicant. In this latter respect particular reference was made to the pleas of guilty, the applicant's mental condition prior to and immediately after the offences, evidence that he had potential constructively to change his lifestyle, and the continued support of his mother. Counsel who appeared for the applicant presented a carefully prepared and concise argument in support, a principal focus of which lay in the circumstances surrounding the commission of the offences the subject of the first indictment. He made two principal points. The first was, as has already been mentioned, that all offences were committed as part of the same criminal enterprise. He took issue with the finding that the episode continued over 50 minutes, and that the sexual assaults were interspersed by the applicant's "rummaging" through the complainant's drawers. (Some difficulty was created for counsel in this submission, having regard to an explicit assertion to that effect contained in the agreed statement of facts. It was, however, difficult to find support for it in the primary materials.) A more telling point concerned the "circumstances of aggravation", which were an element of four of the offences. Counsel directed attention to the particularised indictment, which clearly shows that, in respect of each count, the circumstance of aggravation upon which the Crown relied was injury to the complainant's face, mouth and head. It is obvious that caution needed (and needs) to be exercised to avoid duplication (or multiplication) of punishment for what is, in truth the same aggravating factor.
23 In my opinion this point is well made. While it cannot be said that any individual sentence was excessive, the overall sentence is certainly very high.
24 It is to be noted that no challenge is made to any of the individual sentences; it is only the result of the accumulation that is the subject of complaint.
25 On behalf of the Crown it was acknowledged that the circumstances posed a risk of double counting, and that there was a need to guard against falling into that error; but that, having regard to the plainly very serious nature of the offences, no lesser sentence than the total sentence actually imposed was called for.
26 It is well established that questions of accumulation or concurrence are very much within the discretion of a sentencing judge: R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66. Nevertheless, in my opinion, it has been shown that the extent of the accumulation of the sentences was excessive, and resulted in a manifestly excessive effective head sentence and non-parole period. It is probable that this came about as a consequence of reliance upon the same injuries to the complainant as aggravating four of the offences, but that does not need to be finally decided.
27 In my opinion, the ground has been made good. The error can be corrected by adjusting the starting dates of certain of the sentences, increasing the degree of concurrency and reducing the effect of the accumulation in some cases.
28 I propose the following orders: