Elwood v R

Court of Criminal Appeal (NSW)|2019-11-08|Before: Gleeson JA, Walton J, Fullerton J

Solicitors: Aboriginal Legal Service (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2017/108877 Decision under appeal Court or tribunal: District Court Date of Decision: 6 December 2018 Before: Ingram SC DCJ File Number(s): 2017/108877

Judgment

GLEESON JA: I agree with Fullerton J.
WALTON J: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal an aggregate sentence of 4 years and 6 months with a non-parole period of 3 years imposed by Ingram SC DCJ in the District Court on 6 December 2018.

The facts for sentencing purposes

A statement of agreed facts was tendered. For the purposes of the appeal they may be summarised in the following way.
On 10 April 2017, the applicant, then 18 years of age, was having consensual intercourse with his partner who was at that time 20 years of age. They had been in a relationship for a period of about six years. They had an infant son. They resided with the applicant's parents in Dubbo.
At that time the applicant was subject to an ADVO not to assault, molest, harass, threaten or otherwise interfere with his partner. The order did not prohibit contact or cohabitation with her.
The applicant's partner said she did not want to have sexual intercourse with the applicant but the applicant insisted. His partner relented and consented to sexual intercourse. During penile-vaginal intercourse the applicant started touching his partner's "bottom". Against her repeated entreaties that he stop, and after her attempts to separate herself from the applicant, he inserted one of his fingers to the first knuckle into her anus with force. This conduct constituted the breach of s 61I of the Crimes Act.
The applicant's partner experienced immediate pain which caused her to scream out with sufficient volume that the applicant's mother called out to them. The applicant then responded by pushing his partner to the chest with both fists away from him (this conduct constituted the common assault the subject of the Form 1).
Both offences constituted a breach of the ADVO and were the subject of the offence on the s 166 certificate.
The applicant's partner made immediate complaint to his mother and asked the police to be notified. She was later transported to Dubbo Hospital for a medical examination. There is no evidence that any injuries were reported upon examination.
The applicant was arrested at his mother's house. He participated in an interview in which he made admissions to intentionally digitally penetrating his partner's anus stating, "I just got carried away".

The facts the subject of the Local Court proceedings

On 20 January 2018, the applicant was visiting his grandmother who resides in Bourke. The complainant (RG) was aged 15. In the early hours of 21 January 2018, the applicant sent RG a number of text messages in which he repeatedly asked her to fellate him or to meet him so he could "stick it inside" her. It would appear that the applicant and RG were related. The applicant told RG that he was aged 17 when he was in fact aged 19.
RG showed the text messages to her mother who contacted police.
The applicant was arrested on 7 February 2018. He participated in an ERISP in which he admitted sending the text messages. He claimed he was drunk at the time but, nonetheless, was aware that RG was four years younger than him. He told police that he lied about his age to her because he thought that might make RG more inclined to meet him for sex.

Criminal history

The applicant's criminal history commenced with entries in 2015 in the Children's Court for property offences, common assault and assault occasioning actual bodily harm in a domestic violence setting, stalking and intimidation in a domestic violence setting. Conditional release orders were imposed for that offending which were ultimately called up in 2016. Thereafter he was placed on probation. Further offences of a similar kind were committed later in 2016 for which the applicant was sentenced to 7 months' imprisonment but with what appears to be a non-parole period of only 29 days.

The pre-sentence report: 4 September 2018

The author of the report noted that the factors relating to the offence of sexual intercourse without consent, apparently volunteered by the applicant in an interview, included his claim that he was under the influence of cannabis at the time of the offence and that he had been abusing that drug since he was 15. The applicant told the author that he had previously sought assistance for his abuse of cannabis by way of residential rehabilitation from which he had benefited. He also claimed that he was addicted to the consumption of pornography and that he had been watching pornography in the hours leading up to the assault on his partner and had become aroused by it.
The author also observed that a Static 99R assessment was completed by Corrective Services psychologists on 3 September 2018, almost immediately after the offending on the indictment and nine months after the offending the subject of the proceedings in the Local Court. That assessment resulted in the applicant being considered at a high risk of sexual reoffending, however a Level of Service Inventory - Revised assessment resulted in the applicant being assessed as a medium risk of sexual reoffending.
The author of the report also noted, as did his Honour in his sentencing reasons, that, together with the breach of the ADVO the subject of the Form 1, the applicant had numerous convictions of a similar kind, including convictions for assault occasioning actual bodily harm and common assault. The breach of the ADVO on the Form 1 was the fourth on his record, two of which were the subject of proceedings in the Children's Court. In June 2016, the third offence was the subject of proceedings in the Local Court where a term of imprisonment of 7 months was imposed with a non-parole period of 29 days.
The applicant has been convicted of multiple charges of assault and offences of stalk and intimidate in a domestic context, both as a juvenile and as an adult, none of which attracted a sentence of imprisonment.
The applicant expressed remorse for his behaviour stating, "I feel terrible - words can't explain how … I accept responsibility for what I did … I feel sorry for the embarrassment and hurt I caused her [his partner]; we've been together since I was 14 years old".

The report of Anne Lucas, forensic psychologist: 29 October 2018

Ms Lucas observed that the applicant identifies as Aboriginal. She also noted that he grew up in a family where his father was violent towards his mother due to alcohol abuse and had spent much of the applicant's childhood in prison. The applicant also reported difficulties with parental supervision and guidance from his mother's abuse of alcohol. He described his family home as a place for "parties". He said that to get away from the drinking and fighting he spent a lot of time on the streets as a young person where he was also exposed to violence and substance abuse. He recalled his childhood as a frightening time during which he did not feel he had anywhere that was safe or adults upon whom he could depend for support. The applicant developed a substance abuse problem in his mid-teens. It would appear that he has since reconciled with his father who he now considers to be a responsible person, having overcome the difficulties he had with alcohol abuse when the applicant was younger. The applicant reported hoping to return to Bourke where his family is located, and to resume living with his father.
The applicant reported compromised numeracy and literacy to the extent that he needs help to fill out forms and cannot perform anything more than a few basic financial transactions. He said he left school in Year 10 by which time he had transitioned into puberty. He said he felt out of step with other students because of his height, heavyset build and because he had facial hair.
Upon application of the eleven subtests which comprise the Wechsler Adult Intelligence Scale, the applicant's full score IQ was estimated to be 71, placing him in the Borderline descriptive category, falling on the cusp of the Extremely Low to Borderline range. This would position him below 97% of his peers. His General Ability Index score placed him in the same Borderline descriptive band compared to his peers. Similar results were generated with respect to his verbal reasoning abilities, perceptual reasoning, working memory and processing speed.
Ms Lucas determined that, overall, the applicant showed deficits in adaptive functioning such that a diagnosis of intellectual disability of mild severity was available.
Ms Lucas observed that the applicant was able to identify that his conduct in the sexual assault of his partner was wrong. He expressed remorse for his conduct. He was, however, largely unable to identify the pathway that led to his offending. She noted that the applicant: …would have higher than "typical" impulsivity and lower problem solving/decision making capacity than is "normal" for an individual his age. Offenders with Intellectual Disability may lack the skills necessary to effectively modulate emotions, endure distress, tolerate frustration, communicate feelings, process new information, comprehend social norms and accurately interpret socio-sexual cues.
Ms Lucas recommended that, upon his release from custody, the applicant should be referred to a community based program, or an individual treatment provider, for assistance in a manner which is both accessible and meaningful so as to assist him in understanding sexual violence and ways of modulating his emotional states and improving problem solving to avoid any repetition of sexual offending. Ms Lucas also noted that several offices of the Department of Community Corrections organise special programs with State-Wide Disability Services for offenders with cognitive limitations.

Findings made by the sentencing judge for sentencing purposes

His Honour made the following findings of fact: 1. The compromised level of intellectual functioning under which the applicant appears to labour relevantly engages, to a degree, the operation of the principles referred to in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; 2. The applicant's subjective circumstances invoke Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, together with Muldrock and De La Rosa. In relation to early onset alcohol and substance, the principles referred to in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 apply; 3. The applicant's record does substantially attenuate any leniency that might otherwise have been extended to him in relation to the index sentences; 4. The applicant was genuinely remorseful; 5. The applicant has very guarded prospects of rehabilitation; 6. The sentencing judge was not satisfied, on balance, that the applicant was positively unlikely to reoffend; 7. After taking into account the applicant's age, the increased hardship he will experience serving his sentence in custody due to his compromised level of cognitive functioning; the need for an order of partial accumulation; and the need for an extended period on parole to facilitate the applicant's rehabilitation and reintegration back into the community, a finding of special circumstances was made.

The first ground of appeal

The sentencing judge found that the objective seriousness of the offence of sexual intercourse without consent was "on the cusp but in the low and middle range for offences in contravention of s 61I [of the Crimes Act]". This was interpreted by the applicant on the appeal to be a finding by the sentencing judge that the offence was "extremely close to the mid-range" and not at the lower end of a notional scale contended for by the applicant as the only appropriate finding on the facts.
In McClelland v R [2019] NSWCCA 59, I agreed with the observations of Walton J in Battersby v R [2018] NSWCCA 141 that, because the assessment of objective seriousness calls for a discretionary judgment, the positioning of objective seriousness on a spectrum is a value judgment as to which minds might reasonably differ. I would also add that since clear delineation between notional points on a spectrum of objective seriousness from low to middle to high are not uniformly described by sentencing judges, it is rare that a characterisation of the objective seriousness referable to that spectrum admits of a sentencing error. Even less so, in my view, where a sentencing judge seeks to position objective seriousness by describing a point intermediate to the notional points on the spectrum, as occurred in this case.
Although it was necessary for the sentencing judge to make an assessment of objective seriousness of the s 61I offences as part of the sentencing exercise, what was required in that assessment was an identification of the circumstances of the offending in the context in which the offence occurred.
In my view no error is revealed in that exercise in this case. It is clear from his Honour's sentencing reasons that he had regard to all relevant facts and circumstances in his assessment of the objective seriousness of the sexual assault, including that the applicant's partner loudly voiced her lack of consent to anal penetration but that the applicant persisted forcing his finger into her anus causing her pain. While the assault was of apparently short duration, neither that fact nor the fact that the applicant's finger was used reduces the objective seriousness of the offending (see Doe v R [2013] NSWCCA 248 at [54]). I reject what was asserted on behalf of the applicant that the offending was a fleeting extension of consensual sexual intercourse, or that the offending was, in all the circumstances, in the low range of objective seriousness.
I would reject Ground 1.

The second ground of appeal

Under this ground of appeal the applicant contends that despite the sentencing judge's findings of fact in (1) and (2) above, his discretion miscarried because he failed to consider the impact of the applicant's intellectual disability when considering questions of general and specific deterrence.
In elaborating upon the significance of the applicant's intellectual disability for sentencing purposes, the sentencing judge made the following further findings: Mental Health Issues The Court is also satisfied that the compromised level of intellectual functioning under which the offender appears to labour, relevantly engages, to a degree, the operation of the principles referred to in Muldrock v R [2011] HCA 39 and the Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 both in relation to the attenuation of this level of moral culpability at the time of the index offences as well as tending to make a custodial sentence more onerous on him. (Emphasis added.) Moral Culpability As to moral culpability … the Court is satisfied that the subjective circumstances of the offender bring to bear the principles referred to in these reasons above including those in Bugmy v R [2013] HCA 37 and Mundah v R [2013] HCA 38, together with Muldrock and De La Rosa, as well in relation to early onset alcohol and substance abuse, the principles referred to in Henry v R [1999] NSWCCA 111.] The Court is therefore satisfied that such considerations warrant some not insubstantial amelioration of the moral culpability of the offender for the index offences.
In Canzius v R [2017] NSWCCA 177, Gleeson JA (Harrison and Fullerton JJ agreeing) clarified that the five principles, according to which an offender's intellectual functioning may impact on sentence in De La Rosa, do not operate such that a lesser sentence is necessarily warranted where a court sentences an offender with a mental health condition or other intellectual disability is sentenced. The Court observed the following: [40] The significance of an offender's mental health or condition is a frequently recurring issue in the sentencing process. In Aslan v R [2014] NSWCCA 114, Simpson J (as her Honour then was) at [33] (Adams J and McCallum J agreeing) referred to the following summary of applicable principles stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v Di La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (citations omitted, italics added by her Honour): [Principle 1] • Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence… [Principle 2] • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed… [Principle 3] • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced… [Principle 4] • It may reduce or eliminate the significance of specific deterrence… [Principle 5] • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence … Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public. [41] Importantly, Simpson J continued in Aslan v R observing at [34]: It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.
That approach was approved by Harrison J in Alkanaan v R [2017] NSWCCA 56 at [108]: The mere fact of mental illness is not of itself a necessary or sufficient indicator for a more lenient sentence. The principles described by McClellan CJ at CL in De La Rosa are no more than indications of what experience has shown commonly arise in such cases. As Simpson J has said, however, there is no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.
The applicant complains that the sentencing judge failed to explain why he mentioned only two of the above five De La Rosa principles (being principles 1 and 3), and were he satisfied that the other three principles were not engaged in the sentencing exercise, how and why he arrived at that finding.
A similar issue arose in Hazell v R [2015] NSWCCA 26, where Harrison J (Hoeben CJ at CL and R A Hulme J agreeing) stated: [12] In the present circumstances the principles to apply are not in doubt: see Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 at [177]. The burden of the applicant's contentions is that his Honour failed to apply the principles in this case. … [17] In my opinion it is abundantly clear that his Honour was aware that he was dealing with an offender with significant and well documented mental health and intellectual issues, associated as well with substance and alcohol abuse. It is not to my mind an error for a sentencing judge in such circumstances to fail in effect to refer to and recite on a point by point basis the factors so clearly identified and explained in De La Rosa. Putting aside the issue of whether his Honour had before him specific evidence of the way in which the applicant's time in custody would be more onerous for him in the circumstances, it seems to me to be inherent in what his Honour has said that he has taken that (presently assumed but unproved) prospect into account. His Honour's sentencing remarks are replete with references to medical reports and the competing concerns about the extent of the applicant's several disabilities. A failure by a sentencing judge in general, or this judge in particular, to articulate the details of his concerns, within the structure of a thorough consideration of the applicant's particular circumstances, does not generally constitute error and does not do so here. In fact, on one view his Honour's specific mention that "there should also be a discount where it is found that there are matters affecting his intellectual functioning" is arguably standing alone a complete answer to this ground of appeal. (Emphasis added.)
In the result, I am not persuaded that the failure of the sentencing judge to make mention of the impact of the applicant's intellectual or cognitive functioning on the question of either general or specific deterrence is a sentencing error. I would dismiss this ground of appeal.

The third ground of appeal

The principles that apply where a non-parole period is to be set under s 44 of the Crimes (Sentencing Procedure) Act are well settled and do not require restatement.
It is also clear that his Honour was satisfied that a number of circumstances, both personal to the applicant and features of the sentencing process itself, supported a finding of special circumstances as provided for in s 44(2) of the Crimes (Sentencing Procedure) Act.
The question raised by this ground of appeal is whether the variation in the statutory ratio of 66.6% in the appointment of the aggregate sentence to a ratio of 70% after an order for partial accumulation with the sentence imposed in the Local Court has been productive of a sentencing error.
In this case, one of the four circumstances warranting what his Honour was satisfied should be "an amelioration of the non-parole period for the aggregate sentence" was the order for partial accumulation. His Honour made no reference to there being a corresponding need for an amelioration of the non-parole period for the effective sentence because of the order for partial accumulation. The remaining bases for the finding of special circumstances included the applicant's age; the increased hardship he will experience as a sentenced prisoner given his compromised level of cognitive functioning, and the need for an extended period on parole to facilitate his rehabilitation and reintegration into the community upon the expiration of the non-parole period.
While the applicant's age and the need for extended supervision on parole were capable of operating to extend the parole period, the identified hardship the applicant would experience as a sentenced prisoner related directly to the time actually spent in custody as part of the sentence structure.
Having made a finding of special circumstances, it was for the sentencing judge to determine the extent or the degree to which the statutory ratio should be reduced, both in the appointment of the aggregate sentence and after accumulation in the ultimate sentencing order. It is clear, as a matter of sentencing principle, that in the exercise of that discretionary judgment the judge was required to fix an effective non-parole period which reflected the minimum period the applicant should spend in custody, taking into account not only the objective seriousness of the offending comprehended by the offences on indictment and on the s 166 certificate, and the offence the subject of the appeal from the Local Court, and also the offender's subjective circumstances.
The error contended for by the applicant is that in the absence of any indication from the sentencing judge that he intended that the effective non-parole period would not reflect the finding of special circumstances that had been given effect to in the appointment of the aggregate sentence, error is made out.
The applicant acknowledged that had the sentencing judge made clear his intention that the total effective non-parole period would increase after accumulation (or, to put it another way, that the parole period would reduce), the applicant would have difficulty, having regard to the authorities, establishing a sentencing error (see the authorities referred to by Hamill J in Sabongi v R [2015] NSWCCA 25).
That was an approach that was recently adopted and applied in CC v R [2019] NSWCCA 229 (per Fullerton J at [37]-[45], Payne JA and Bellew J agreeing). In that case, in contrast to the present case, the sentencing judge expressly rejected the proposition that the order for partial accumulation was a basis for a finding of special circumstances. His Honour's reasons for sentence in that case made it clear that upon further reviewing the basis upon which his Honour was satisfied special circumstances were found, he expressly considered the length of the parole period as an appropriate period of supervision in the community. Additionally, this Court observed that although after accumulation the ratio between the non-parole period and the balance of term increased and, significantly, the period during which the applicant would be subject to supervision in the community did not change.
The applicant further submitted that it would have been difficult to establish a sentencing error were the sentencing judge to have said something similar to "on accumulation the statutory ratio will not reduce substantially" (see Houri v R [2013] NSWCCA 279 at [34]) or that the increase in the period of potential parole would "not be much" (see Caristo v R [2011] NSWCCA 7 at [37]). However, in the absence of anything in the sentencing judge's reasons to indicate he had given fresh consideration to the relationship between the non-parole period and the balance of term upon accumulation such that, despite the order for partial accumulation being a basis for a finding of special circumstances, he intended that the degree of amelioration of the statutory ratio would be modified from 66.6% to 70%, the applicant submitted that error has been established.
In the Crown's submission, because the finding of special circumstances was given effect in the ultimate sentencing order (by reducing the statutory ratio of 75% to 70%) and where, as a matter of sentencing principle, his Honour was not obliged to preserve the statutory ratio of 66.6% in the fixing of the aggregate sentence when the overall effective sentence was imposed, no error has been demonstrated.
The Crown further submitted that in all the circumstances, not the least being the fact that the applicant had completed six months on parole for contravention of an ADVO and an offence of stalk/intimidate two months before he committed the sexual offence, together with his criminal history which included repeat offending of that kind and offences of domestic violence, it was open to the sentencing judge to collapse the parole period by a period of two months, that is, from the parole period reflected in the aggregate sentence of 1 year and 6 months to the effective parole period of 1 year and 8 months, after accumulation.
The difficulty with that submission, is that it fails to address what the authorities referred to above make plain, namely that a sentencing judge who makes a significant finding of special circumstances not based solely on the fact of accumulation, should either carry that finding into effect on accumulation or give an explanation for why that was not done (see the cases cited by Hamill J at [84] in Sabongi).
In my view, it is no answer to the sentencing error the applicant complains of for the Crown to submit that there might have been a justification for the ultimate sentencing order, where there is nothing in the structure of the sentence or his Honour's sentencing reasons to suggest that was what he intended.
I am satisfied that the sentencing discretion has miscarried and that the applicant should be re-sentenced.

Evidence on re-sentence

No evidence was relied upon by the applicant on re-sentence. The Crown read an affidavit from a solicitor in the employ of the Office of the Director of Public Prosecutions in which reference was made to two custodial misconduct reports. The first is described as "intimidation" and the second as "indecency". Both occurred on 22 December 2018, within three weeks of the applicant entering custody. The act of intimidation involved spitting at a custodial officer after a pornographic magazine was seized from the applicant's cell. I do not consider that conduct has any bearing on the re-sentencing exercise. It would appear that the act of indecency is constituted by the applicant presenting a picture of a naked female to a Corrective Services officer and laughing. To the extent that amounts to an act of indecency (which I doubt), it also has no bearing on the sentencing exercise.

Re-sentence

I would allow the same discounts for the pleas of guilty as the sentencing judge allowed. I also take the same approach to the assessment of objective seriousness, as I do to the fact that the applicant's record does not entitle him to any particular leniency.
Although I am not persuaded that the specific error the subject of the second ground of the appeal has been made out on re-sentence, I propose to take a slightly different approach to the assessment of the significance of the applicant's cognitive and intellectual disability.
While I endorse the sentencing judge's finding that there was an attenuation of the applicant's moral culpability for the sexual offending by reason of his compromised level of intellectual functioning, I would also make the additional finding that the applicant is, for that reason, an inappropriate vehicle for general deterrence. While there remains the need to make some allowance for the sentence to sound in specific deterrence, this is to be balanced against his Honour's further finding that the applicant's subjective circumstances invoke the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
Having regard to those findings and my further endorsement of his Honour's finding of special circumstances, including, in particular, the need for extended supervision on the applicant's release from custody from a sentence which is, having regard to his criminal record, the first sentence of imprisonment of any significant duration, the sentence I proposed to indicate for the sexual offending is different from the sentence indicated by his Honour. I also intend to translate the variation in the statutory ratio for the aggregate sentence to the effective sentence to be imposed on the accumulation, with some slight increase in the statutory ratio by reason of the order of accumulation.
In further explanation of the indicative sentences and the aggregate sentence imposed as per this table set out below, the notional accumulation between the offence on indictment and the offence on the s 166 certificate is less than what was provided for by the sentencing judge. I would also provide for a slightly reduced degree of accumulation between the aggregate sentence and the offence the subject of the appeal from the Local Court. Offences before the Judge for sentence (Form 1): Offence Offence Date Offence Provision Maximum Penalty SNPP Indicative Sentence On indictment 3 years Sexual intercourse without consent 10 April 2017 s 61I of the Crimes Act 1900 14 years imprisonment 7 years with NPP 18 months On s 166 certificate 10 April 2017 s 14(1) of the Crimes (Domestic and Personal Violence Act) 2007 2 years imprisonment and/or a fine of 50 penalty units None 9 months Contravene condition of apprehended violence order On Form 1 10 April 2017 s 61 of the Crimes Act 1900 2 years imprisonment None N/A Common Assault Aggregate Sentence: 3 years 2 months with NPP 20 months, commencing 3 August 2018 Offences the subject of the appeal from the Local Court: Offence Offence Date Offence Provision Maximum Penalty SNPP Sentence Attempt to procure a child under 16 for unlawful sexual activity 21 January 2018 s 66EB of the Crimes Act 1900 12 years imprisonment on indictment; jurisdictional limit 2 years summarily None 19 months 6 days NPP 13 months 12 days from 7 February 2018 Overall effective sentence: 3 years 6 months with NPP 2 years, commencing 7 February 2018

I am satisfied that after application of totality principles, and after adopting the approach his Honour took to the structure of the effective sentence by backdating the aggregate sentence to commence on 3 August 2018, that a total overall effective sentence of 3 years and 6 months' imprisonment with a non-parole period of 2 years, commencing on 7 February 2018 to account for pre-sentence custody, is the appropriate sentencing outcome.

Orders

In the result, I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. The aggregate sentence imposed in the District Court on 6 December 2018 is quashed. 4. In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 3 years and 2 months comprised of a non-parole period of 1 year and 8 months. The non-parole period commences on 3 August 2018 and will expire on 2 April 2020 with the balance of term expiring on 2 October 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2019

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