GS v R

Extension of time

1. The application for leave to appeal against sentence is out of time by a little over 4 months. The delay is explained in the grounds outlined in the notice of application for an extension of time filed 22 June 2016, which seeks an extension of time until that date. In my view the extension should be granted.

First victim

1. The applicant was the first victim's stepfather's brother. Following a stroke suffered by the first victim's stepfather in December 1995, and also due to her interest in horse riding, she began spending a considerable amount of time at the applicant's home at Denman, which he shared with his wife.
2. Sometime between 31 January 1996 and 1 September 1996, when the first victim was aged nine years, the applicant approached her from behind inside the horses' feed shed, turned and lifted her onto a feed drum and touched her inner thigh. The applicant pulled his pants down slightly and pulled the first victim's jeans down to her ankles. The applicant's wife called out to him and he left the feed shed. The first victim then pulled her pants up. This conduct was one of the two acts of indecency on the Form 1.
3. During the same time period, the applicant took the first victim on a horse ride into the bush. The applicant told the first victim to get off her horse. He grabbed her and led her to a log where he removed her jeans and touched her vaginal area. He told her to walk around or he would leave her in the bush. The first victim complied, walking around naked form the waist down whilst the applicant watched. This conduct constituted Count 1 on the indictment.
4. On another occasion, the applicant took the first victim and his son horse riding. Whilst the applicant's son was fishing, the applicant took the first victim a short distance away and touched the first victim's vaginal area outside of her clothing, before urinating in front of her. This conduct constituted the second act of indecency on the Form 1.
5. On a number of occasions during the same time period, the first victim accompanied the applicant and his wife to horse riding events. On one occasion, the victim was sleeping on a mattress between the applicant and his wife in the horse float. During the night, the applicant touched the first victim's vaginal area under her clothing and inside her pants. He did this for some time before going back to sleep. This conduct constituted Count 2 on the indictment.
6. The applicant often told the first victim that no-one would believe her (if she made a complaint), that it was her fault and that he would harm her horse if she told anyone. There were other occasions (referred to as the uncharged conduct) where the applicant indecently assaulted the first victim whilst his wife lay asleep in bed between them, by touching the victim's vaginal area and by lying on top of her and rubbing his penis between her thighs.
7. From August 1996, the first victim no longer visited the applicant's home. She participated in a record of interview in May 2002, and provided statements to the police in July and November 2011.

Second victim

1. The second victim met the applicant in 1996 through horse riding competitions and later visited the applicant's home. Sometime between 19 November 1996 and 22 December 1996, when the second victim was aged six years, the applicant and his son, along with the second victim, her father and brother, went fishing at the back of the applicant's home at Aberdeen. Whilst the second victim and her four year-old brother were alone with the applicant, the applicant asked the second victim to sit on his lap and she complied. The applicant ran his hands over her torso and put hands down her pants and rubbed her vagina. The second victim told the applicant to stop and tried to get up but he restrained her. The second victim cried and was very frightened. The applicant told the second victim not to tell anyone and let her go when he heard her father returning. This conduct constituted Count 2 on the indictment.
2. The second victim's parents reported the matter to police in December 1996. Her parents decided not to take the matter further other than to obtain an apprehended violence order against the applicant. The second victim provided a statement to police on 29 January 2013.
3. The applicant was arrested and charged on 31 January 2013. He declined to participate in a recorded interview.

The 2011 remarks on sentence

1. The agreed facts tendered before Williams DCJ and his Honour's remarks on sentence dated 8 March 2011 were tendered in evidence before Culver DCJ. Williams DCJ described the nature of the applicant's offending against the unrelated victim in the period 2002 to 2004 as follows: From the facts, it appears that the family of the victim and the family of [GS] knew each other through employment at Mudgee Abattoirs. He then lived on a small property in a two bedroom house, where he kept horses. The victim, who had an interest in horses, used to use one of his horses to ride and he kept that horse for her use. On an occasion between January 2002 and September 2003, she, aged 10, had been riding with him and staying overnight at the house. He, [GS], and she were the only persons on the premises. While she was asleep, he went into the bedroom where she was and began to assault her, performing digital penetration of her vagina followed by penile penetration of her vagina. That is the offence on the Form 1. An incident similar to that described in the Form 1 matter occurred on another occasion in about June 2004, which also involved digital and penile penetration. About three days after this second incident, the child went with the offender to stables located at Werris Creek and she went into the tack room. He came up behind her and pulled her pants down. He then held the child's hands above her head and tied them together with a piece of string used to tie hay bales together saying: "Stay still or I'll kill your horse". The applicant pulled down her pants and had penile vaginal intercourse with her. She was aged 11 at the time and he was 57. That is the offence on the indictment.
2. Williams DCJ observed that the offence committed in 2004 was not an isolated incident having regard to the similar offence listed on the Form 1 and another uncharged matter referred to in the agreed facts. His Honour found that the offending "was of a serious nature", noting the applicant's concession that his offending fell within the mid-range of objective seriousness.
3. His Honour found special circumstances on the grounds of the applicant's very poor health and that consequently any period of imprisonment would be more onerous for him. In addition, it was his first time in custody.
4. The undiscounted notional starting point of the 2011 sentence (before a reduction of 15% for the guilty plea) was about 6 years 11 months.

Subjective case

1. The applicant was aged 48 or 49 years at the time of the 1996 offences and 67 years at the time of sentence. Dr Julia Zhu, a psychologist with Correction Services NSW, described the applicant as a "frail inmate" in her pre-sentence consultation report. This was a reference to the applicant's various medical conditions.
2. The applicant has a chronic kidney disease requiring ongoing renal dialysis three times a week. He also suffers from a number of medical conditions including a recurrent serious infection (cerebral aspergillosis), diabetes, and has a history of ischemic heart disease, strokes and epilepsy. At the time of the 2011 sentence, the applicant's life expectancy was thought by his general practitioner to be five to seven years. Dr Stephen Maye, a consultant nephrologist, expressed the opinion that the applicant's life expectancy was five years as "an educated guess". There was no evidence before Culver DCJ in 2014 updating that opinion.
3. The applicant is married and has an adult son who lived with him and his wife. The applicant worked as a labourer in a power station for 15 years. He suffered a back injury 23 years ago and has been in receipt of a disability pension since that time. The author of the pre-sentence report referred to the applicant's difficult early childhood following the death of his father when he was aged 10 and his mother's trouble coping afterwards. This affected the applicant's education and he has limited literacy and numeracy skills.
4. The applicant gave evidence on sentence and was cross-examined. He acknowledged that he had done wrong and expressed sorrow for his offending. He conceded that he was aware his conduct was wrong at the time of his offences against the first victim in 1996. He agreed that when the second victim had tried to get off his lap he had held onto her and continued to indecently assault her. He also conceded that he had subsequently committed the more serious offending against the unrelated victim in the period 2002 to 2004. He said that he was sorry about his conduct at the time of the offending, but conceded that he had continued to offend from 1996 through to 2004.

Sentencing judge's reasons

1. Although there was no complaint against the sentencing judge's assessment of the seriousness of the offending, it is appropriate to refer to the matters which her Honour regarded made the offending against both victims "particularly serious" (ROS 7 and 9). Those features included:

• the vast age discrepancy between the victims - nine and six years of age - and the applicant 48 or 49 years of age;
• the applicant abused his position of trust and authority as both victims were under the applicant's supervision (and the first victim was also in his care, residing with him) at the time of the offences;
• the means of coercion employed by the applicant - he threatened to leave the first victim alone in the bush if she did not comply with his humiliating demands, he threatened to harm her horse if she told anyone about the abuse, and he physically prevented the second victim from getting off his lap;
• the applicant told both victims that they would not be believed, and he told the first victim that the abuse was her own fault;
• the brazen circumstances of the offending - in the case of the first victim it occurred in the presence of the applicant's sleeping wife, and in the case of the second victim in the presence of her younger brother; and
• the offences were not isolated.

1. Her Honour described the two matters on the Form 1 concerning the first victim as equally serious and of the same type as the offences on the indictment (ROS 13).
2. Her Honour considered matters of mitigation, including that the applicant was considered to be a medium to low risk of re-offending because of his age and poor health; his prospects of rehabilitation were good given the low risk of re-offending; and the remorse shown by the applicant and his pleas of guilty, albeit that the remorse occurred late as the applicant had committed further sexual assaults against another young girl (aged 11) in the period 2002 - 2004 (ROS 10-11).
3. Her Honour referred to the applicant's favourable subjective case, in particular his ill health and age at the time of sentence (67 years), and noted that there had been no update to the medical opinion expressed at the time of the 2011 sentence concerning the applicant's estimated life expectancy (ROS 15).
4. Her Honour recognised the possibility that a custodial sentence might result in the applicant spending the whole of his remaining years in custody and referred to R v Gallagher (Court of Criminal Appeal (NSW), 29 November 1995, unrep) (R v Gallagher). Her Honour accepted that any sentence imposed ought not be crushing or inhumane, and ought to take account of the applicant's age and health which needed to be weighed against the other factors and circumstances relevant to sentence, including the "total criminality" (ROS 17).
5. Her Honour noted that the significant delay since the commission of the offences (in 1996) made custodial options more limited because of the applicant's poor health, but did not consider that this amounted to "greatly significant mitigation" (ROS 19).
6. Her Honour was mindful of the need to have regard to the sentencing patterns and principles at the time the offences were committed. Reference was made, among others, to R v MJK (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [31]. Her Honour accepted, consistent with the submissions of the parties, that there was no clear sentencing pattern discernible from the table of cases that had been provided by the Crown. Nor did her Honour find the sentencing statistics to be of assistance (ROS 21-22). No complaint is made by the applicant as to her Honour's approach in this respect.
7. As to totality, her Honour noted that the sentencing exercise required "a delicate balance" so as to achieve individual sentences that are appropriate to each respective offence, but which also appropriately reflected the "overall criminality". Her Honour accepted that the principle of totality arose both because of the number of charges for which the applicant was being sentenced, and also because the applicant was in custody serving a sentence imposed in 2011 (ROS 22).
8. A finding of special circumstances was made in view of the delay, the differing sentencing patterns, the need for rehabilitation and supervision of the applicant and the applicant's ill health (ROS 24).
9. Her Honour concluded that only custodial sentences were appropriate. Taking into account the 10% discount for the guilty pleas, the judge imposed the sentences indicated. In doing so, her Honour expressly stated that the finding of special circumstances had been taken into account on count 1 "to achieve an appropriate overall sentence" (ROS 24-25).

Grounds of appeal

1. Grounds 1 and 3 are related. Ground 1 contended that her Honour failed to properly apply the principles of totality. Ground 3 contended that the sentences are manifestly excessive, both individually and because of the extent of the accumulation of each sentence, particularly given the accumulation on the existing 2011 sentence.
2. Ground 2 contended that her Honour erred because the finding of special circumstances was not (adequately) reflected in the sentence imposed.
3. Ground 2 was abandoned at the hearing. That is not surprising. It relied upon applying the s 44(2) Sentencing Act proportions to the accumulated effect of the whole of the existing 2011 sentence together with the further sentences to be imposed for the purpose of determining whether the sentencing judge failed to give effect to a finding of special circumstances. The applicant pointed to the increase in the ratio between the non-parole period and the head sentence on the 2011 sentence (50%) to the ratio of 72% between the effective non-parole period (8 years) and the total effective sentence (11 years) (when the 2011 and 2014 sentences are taken together).
4. However, as Simpson JA explained (Bathurst CJ agreeing) in White v R [2016] NSWCCA 190 at [104]-[105], there is no warrant for such an approach to s 44(2) of the Sentencing Act, with respect to individual sentences. This is because the language of s 44(2) does not contemplate the application of the statutory ratio to an "overall effective sentence" comprised of sentences imposed at different times.
5. That is not to deny the relevance of the principle of totality in the present case, raised as it is by ground 1. Nor does it exclude consideration of whether the non-parole period or total term of the 2014 sentences is manifestly excessive, which is raised by ground 3.

Ground 1: the sentencing judge failed to properly apply the principles of totality when sentencing the applicant

1. Although expressed broadly, the applicant's submissions on this ground were confined to the asserted failure of the sentencing judge to take into account certain "aspects" of the principle of totality.
2. It is appropriate to set out in full her Honour's observations with respect to the totality principle (at ROS 17, 22 and 25, respectively): Counsel for the offender submits that any sentence ought not be crushing. Indeed no sentence should be inhumane. The sentences imposed ought take into account the offender's age and health with all of the other factors and circumstances when deriving an appropriate sentence that also accommodates the totality of criminality. …. The sentencing exercise here requires a delicate balance in achieving individual sentences that are appropriate to each respective offence but equally achieving a sentence that is appropriately reflective of the overall criminality. The principle of totality also arises here in the circumstance that the offender is currently in custody still serving the sentence that was imposed in 2011 albeit that the non-parole period expired on 7 March 2014 [Mill v The Queen (1988) 166 CLR 59 at 66]. The aspect of totality can be accommodated by the partial accumulation or concurrency of sentences. This is guided by determining whether the criminality of one offence can be encompassed in the criminality of another offence [Cahyadi v R [2007] NSWCCA No 1 [sic]]. Here each offence is discrete. Whilst there are two offences concerned with the first victim the Form 1 is to be taken into account in the sentencing for count 1. Whilst the offences are discrete there must in this case be some accumulation to achieve an overall sentencing result appropriately reflecting all of the considerations above, but not one that loses sight of the overall criminality. …. The intention is that the overall sentence for today's matters [sic] will be a non-parole period of five years dating from 8 March 2014 and expiring at the end of 7 March 2019 whereupon the offender will be eligible to a parole period of three years to be supervised by Community Corrections.

Submissions

1. Counsel for the applicant acknowledged that her Honour's remarks recognised that totality was an important feature of the sentencing exercise and expressly noted the importance of avoiding a crushing sentence. Nonetheless, it was submitted that the sentences imposed by her Honour achieved that result because the applicant's (effective) non-parole period was increased from 3 years to 8 years taking into account the existing 2011 sentence, thus concluding well beyond the 2011 estimate of his life expectancy.
2. In support of this ground, the applicant complained that her Honour did not expressly refer to aspects of the totality principle. One was the need for the sentencer to take a last look at the overall sentence to see if it seems correct, particularly having regard to the pre-existing sentence: Mill v the Queen (1988) 166 CLR 59; [1988] HCA 70 (Mill) at 63. Another was the significance of the applicant's advanced age, and that each additional year of the sentence represented a substantial portion of the period of life which is left to the applicant: Gulyas v State of Western Australia (2007) 178 A Crim R 539; [2007] WASCA 263 at [34]-[35]. A third matter was that the severity of the sentence is an exponential, not linear function, with the severity of the sentence increasing exponentially as it increases in length: R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [16].
3. In response, the Crown submitted that the applicant's complaint in ground 1 was directed to the exercise of the judge's sentencing discretion and that there is no express or patent error in her Honour's treatment of totality. The Crown pointed to her Honour's reference to the High Court's decision in Mill and this Court's decision in Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1 (Cahyadi) and submitted that those decisions were expressly taken into account by her Honour in structuring the sentences.
4. The Crown also submitted that her Honour was not in error in not expressly referring to the particular aspects of the principle of totality which were identified in the applicant's submissions in this Court: see [46] above.

The principle of totality

1. The principle of totality is to be applied in a number of circumstances, including when sentencing an offender where an existing sentence is being served: Mill at 66. As this Court observed in R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 (R v MMK) at [11]: [i]t 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 The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616.
2. Questions of concurrence and accumulation are discretionary matters for the sentencing judge: R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540 at [7]; LG v R [2012] NSWCCA 249 at [24]. Nevertheless, that discretion is generally circumscribed by a proper application of the principle of totality: R v MMK at [13].
3. The relationship between the totality principle and the concept of a "crushing sentence" was considered by this Court in R v MAK at [15]-[18], where Spigelman CJ, Whealy and Howie JJ said: 15 ... Whenever the Court sentences an offender for multiple offences, including when there are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons. 16 The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306: ... the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences. 17 The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint. 18 A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences.
4. The description of a sentence as crushing on the offender is but one of the matters that is taken into account in determining whether he is beyond the range of sentences properly available to the sentencing judge: R v Cumberbatch (2004) 144 A Crim R 253; [2004] VSCA 37 at [12] (Chernov JA, Vincent JA and Bongiorno AJA agreeing). In Paxton v R [2011] NSWCCA 242 Johnson J (Tobias AJA and Hall J agreeing) explained at [215]: An assessment whether a particular sentence is a "crushing sentence" must have regard to the offence or offences committed by the offender, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality. As Grove J observed in Ta'ala v R [2008] NSWCCA 132] at [42], "justice is individual and each offence and each offender requires assessment" .

Decision

1. The sentencing judge was mindful that the totality principle operated in the present case and generally determined the extent to which the 2014 sentences were to be served concurrently or cumulatively with the existing 2011 sentence.
2. Her Honour correctly recognised, applying the principles stated in Mill and Cahyadi, the need to consider whether the sentences for the subject offences comprehended and reflected the criminality for the offence of aggravated sexual assault committed in 2004 (taking into account the similar offence listed on the Form 1 committed in 2002 - 2003). Her Honour found that the subject offences, and the 2002 - 2004 offences, represented two discrete acts of criminality. Nonetheless, her Honour accepted that there must be "some" accumulation to achieve an "overall sentencing result" that reflected all of the relevant sentencing considerations but did not lose sight of the overall criminality. No complaint was made against that approach.
3. That her Honour did not refer to the specific passage in Mill (at 63) or expressly say that she had taken one last look at the overall sentence to see if it seems correct having regard to the principle of totality, is not to be taken as indicative of error. It is implicit from the concluding remarks on sentence concerning the "overall sentence" (set out at [43] above), that her Honour considered whether the overall sentence was appropriate, consistent with the statement of principle in Mill.
4. Further and contrary to the applicant's submissions, it was not necessary for her Honour to expressly refer to the effect of each additional year of the sentence for the applicant's remaining life. That this was apparent to her Honour is evident in her recognition of the possibility that a custodial sentence might result in the applicant spending the rest of his life in gaol.
5. Nor was it necessary for her Honour to expressly refer to the severity of the sentence as an exponential, not linear function. As an experienced sentencing judge, her Honour may be taken to have been mindful of such matters.
6. When considering the applicant's submission that any sentence ought not be "crushing", her Honour correctly recognised that the applicant's advanced age and ill-health needed to be weighed against the other factors and circumstances relevant to sentence, including the "total criminality" (ROS 17). Her Honour's approach to the assessment of whether the sentence to be imposed was a "crushing" one, was consistent with the approach outlined in Paxton v R referred to at [51] above.
7. As mentioned, her Honour referred to the decision of this Court in R v Gallagher when considering the significance of the applicant's age and ill-health. That case referred with approval to R v Holyoak (1995) 82 A Crim R 502 (Holyoak), where Allen J (Handley JA agreeing) rejected the notion that it can never be appropriate to impose a minimum term upon elderly offenders which would have the effect that they would spend the rest of their lives in custody. As here, the offender in Holyoak had been convicted of a series of indecent assaults of young girls.
8. Her Honour carefully considered the delicate balance to be struck between achieving individual sentences that were appropriate and achieving a sentence that was reflective of the "overall criminality" of the applicant's offending. In recognition of the need for "some" partial accumulation and concurrency, there was a measure of accumulation in that the sentence imposed on count 2 was made wholly concurrent with the balance of term for the 2011 sentence. The sentence imposed on count 3 was made partially concurrent (by 2 years) with the balance of term of the 2011 sentence. The sentence imposed on count 1 was also made partially concurrent (by 1 year) with the sentence imposed on count 3.
9. Notably, the applicant does not challenge the commencement date of the 2014 sentences. Counsel for the applicant accepted in argument that her Honour made a discretionary judgment as to backdating the commencement date of the 2014 sentences to 8 March 2014 that was appropriate.
10. It is apparent that her Honour had regard to the relevant principles with respect to accumulation, concurrency and totality. Her Honour was well aware that a substantial sentence was being imposed, and her remarks (set out at [43] above) make clear that she was conscious of the impact of the total sentence to be imposed upon the applicant, bearing in mind the existing 2011 sentence and the applicant's age and ill-health. No error of reasoning with respect to the totality principle is apparent from her Honour's remarks on sentence.
11. Ground 1 has not been made out.

Ground 3: the sentences, both individually and in combination are manifestly excessive by virtue of (a) the length of the individual sentences and (b) the extent of the accumulation of each sentence

1. Ground 3 has two limbs. One requires consideration of whether the sentence imposed on each count was manifestly excessive. The other involves an assessment of whether the sentencing structure gave rise to a total effective sentence that was manifestly excessive.

Submissions

1. The applicant's main complaint was directed to the extent of the sentences' accumulation. Counsel for the applicant submitted that, given the pre-existing 2011 sentence, the appropriate way to address the totality principle in the present case was to lower the length of each new sentence and then aggregate them, relying upon the approach referred to in Mill at 63.
2. The applicant also complained that the individual sentences were unreasonably high, particularly the fixed term of 3 years imposed for count 3, the indecent assault offence committed against the second victim, when compared with the 2011 sentence of 3 years with a total term of 6 years for the more serious offence of aggravated sexual assault.
3. In response, the Crown drew attention to the well-known remarks of this Court in Cahyadi at [27] as follows: 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.
4. The Crown submitted that this was not a case where concurrency (with the non-parole period of the 2011 sentence) was required. Reference was made, by way of example, to Williams v R [2016] NSWCCA 68 at [45] where Harrison J (Hoeben CJ at CL and Davies J agreeing) concluded that, as the new offences in that case were entirely separate and discrete acts of criminality (larceny, destroy property by fire and drug supply offences), no error in sentencing had been demonstrated where a new sentence was wholly accumulated upon the expiry of an existing sentence for a domestic violence offence.
5. The Crown submitted that a similar approach was appropriate in the present case which was concerned with different victims and different offences to those giving rise the 2011 sentence. Attention was drawn to the later offences having been committed seven years after the subject offences, against an unrelated victim, and being of a far more serious nature.
6. The Crown also submitted that her Honour allowed a considerable degree of concurrency between the 2014 sentences when determining the commencement dates of each individual sentence.
7. With respect to the asserted severity of the individual sentences, the Crown submitted that her Honour properly took into account the applicant's subjective case and the mitigating circumstances present, however, the applicant's age and ill-health could not justify the imposition of a sentence that failed to pay due regard to the objective gravity of the offences.

Manifest excess

1. A submission that a sentence is excessive (or inadequate) derives from the last kind of error identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King) at 505. To make good this ground, the applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Dinsdale v The Queen 202 CLR 321; [2000] HCA 54 (Dinsdale v The Queen) at [6].
2. The task is not for this Court to decide whether it would have exercised its discretion differently: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen at [57]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28]. The relevant question on appeal is whether the sentence is within a proper range.
3. In Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] the High Court rejected the proposition that manifest error is fundamentally intuitive; rather manifest error arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it. The High Court said that "what reveals manifest excess, or inadequacy, of a sentence is consideration of all of the matters that are relevant to fixing the sentence."

Decision

1. The sentencing judge adopted the approach of first identifying the appropriate sentence for the subject offences and then considering questions of accumulation, concurrency and totality. That is the "preferable approach" (Johnson v R (2004) 78 ALJR 616; [2004] HCA 15 at [26]; Mill at 63) but not the only approach. Instead, a sentencing judge may lower each sentence and then aggregate them. The two approaches are discussed in the joint judgment of Davies and Beech-Jones JJ in Humphries v R; Ponfield v R [2016] NSWCCA 86 at [49]-[52].
2. Contrary to what is implicit in the applicant's submission, there was no error in the sentencing judge adopting the approach most commonly adopted when addressing questions of accumulation, concurrency and totality.
3. Her Honour was faced with a difficult sentencing problem, having regard to the existing 2011 sentence, the seriousness of the subject offences, the applicant's age and ill-health, and the finding of special circumstances. Notwithstanding the absence of any current medical opinion with respect to the applicant's life expectancy, her Honour approached the matter, favourably to the applicant, by recognising that the consequences of the 2014 sentences might well be that the applicant would never walk free. This is not a case where the sentencing judge failed to identify and specifically allow for the significance of the offender's age and ill-health.
4. The essential question is whether the objective gravity of the offences in the present case was such that it was within the proper bounds of judicial discretion for her Honour to impose the sentences as she did notwithstanding what the consequences might well be in view of the applicant's age and ill-health, taking into account the existing 2011 sentence: Holyoak at 507.
5. It has been said in relation to multiple instances of sexual offending that "[p]ersons who set about committing crimes of a sexual nature upon a number of different victims, even if the offence occurs in a short space of time can expect a penalty which imposes a prison term which will be served separately for at least some of the offences": R v Wicks [2005] NSWCCA 409 at [49] (McClellan CJ at CL, Adams and Hoeben JJ agreeing).
6. In R v Katon [2008] NSWCCA 228 at [31] McClellan CJ at CL (Hislop and Hoeben J agreeing) accepted that where there are a series of offences, with different victims, there is a special need to ensure that concurrency does not have the consequence that the overall sentence is inadequate. A similar point was made by Johnson J in R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253 at [112]: It is necessary to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved: R v AEM at [70]; R v Kalache (2000) 111 A Crim R 152 at 184. The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at [34]. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37].
7. The Crown correctly emphasised that a high degree of concurrency between sentences will not be appropriate where such a sentence would fail to recognise the discrete nature of the subsequent offences and the harm done to the victims of those offences, referring to Cahyadi at [27]; R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52]; Nelson v R [2016] NSWCCA 130 at [28]. The present case falls into that category.
8. The applicant's existing 2011 sentence for aggravated sexual assault was concerned with an entirely separate and discrete act of criminality, committed against an unrelated victim seven years after the subject offences. As indicated, the applicant does not challenge the commencement date of the 2014 sentences (8 March 2014), being the expiry of the non-parole period on the 2011 sentence. That measure of accumulation was appropriate.
9. Contrary to the applicant's submissions, the sentencing judge allowed a considerable degree of concurrency as between the 2014 sentences. For the sentence of 30 months (2 years, 6 months) imposed for count 2, only 18 months is solely referrable to that offence. For the sentence of 3 years imposed for count 3, only one year is solely referrable to that offence. For the sentence of 18 months non-parole imposed for count 1 (taking into account the Form 1 matters), only 6 months is solely referrable to that offence.
10. The applicant pointed to the notional starting point of the individual 2014 sentences as being unreasonably high compared to the 2011 sentence. The notional starting point of that sentence before the 15% reduction for the guilty plea was about 6 years and 11 months. By comparison, for count 1, and taking into account the two Form 1 matters, the sentence imposed - 4 years 6 months - involved a notional starting point before the 10% reduction for the guilty plea of about 5 years.
11. For counts 2 and 3 the applicant submitted that the fixed terms of 30 months and 3 years respectively should be treated as the equivalent of a non-parole period, with the total term calculated by applying the usual statutory ratio of 75:25: s 44 Sentencing Act. Treating the fixed term of 30 months for count 2 as the equivalent of a non-parole period, it was submitted that the total term was 3 years and 4 months and the notional starting point before the 10% reduction for the guilty plea was 3 years and 8 months.
12. Similarly, treating the fixed term of 3 years for count 3 as the equivalent of a non-parole period, it was submitted that the total term was 4 years and notional starting point before the 10% reduction for the guilty plea was 4 years and 5 months.
13. Section 45 of the Sentencing Act provides: (1) When sentencing an offender to imprisonment for an offence or, in the case of an aggregate sentence of imprisonment, for offences (other than an offence or offences set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the offence or offences if it appears to the court that it is appropriate to do so: (a) because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or (b) because of any other penalty previously imposed on the offender, or (c) for any other reason that the court considers sufficient. (2) If a court declines to set a non-parole period for a sentence of imprisonment or an aggregate sentence of imprisonment, it must make a record of its reasons for doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence.
14. Her Honour did not give reasons for imposing a fixed term on counts 2 and 3 (s 45(2)) and did not say whether she set the fixed terms at the level of what would have otherwise been the non-parole period or the total term. Fixed terms are generally regarded as the non-parole period, but that approach is not uniform and has been questioned: Collier v R [2012] NSWCCA 213 at [55]-[62] (RA Hulme J); TDP v R; R v TDP [2013] NSWCCA 303 at [172] (RA Hulme J). Cases where a fixed term was regarded as the non-parole period include: R v Gommeson [2014] NSWCCA 159 at [65] (Johnson J, Harrison and Garling JJ agreeing) and Convery v R [2014] NSWCCA 93 at [23] (McCallum J, Simpson and Adams JJ agreeing).
15. It is not necessary to resolve this issue here. The Crown did not dispute the assumption underlying the applicant's submissions that the fixed terms imposed for counts 2 and 3 are what her Honour would have considered an appropriate non-parole period for each offence. That this is what her Honour intended is implicit from her concluding remarks (set out at [44] above) regarding her intention that the "overall sentence" comprises a non-parole period of 5 years with a balance of term of 3 years.
16. The touching of the genitalia of girls aged nine and six years was properly viewed by the sentencing judge as "particularly serious" conduct. The offences were not isolated. In each case, the means of coercion used by the applicant were particularly grave. The applicant acknowledged in giving evidence on sentence that he knew at the time what he was doing was wrong but continued nonetheless. The victims were entitled to feel safe in the applicant's care, yet the applicant took advantage of their defencelessness and vulnerability as young children. That the offences involved a significant breach of trust or authority in relation to the victims was an aggravating factor under Sentencing Act, s 21A(2)(k).
17. The traumatic effect of these crimes on the victims cannot be understated. So much is apparent from the emotional hurt, mistrust and anger recorded in the victim impact statement of the first victim. As this Court has previously observed, child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]; R v Gavel [2014] NSWCCA 56 at [110].
18. It is clear that the subject offences called for the imposition of custodial sentences given the applicant's offending was particularly serious and bearing in mind the legislative guidepost provided by the maximum penalty of 10 years. I do not regard the notional starting point for the individual sentences as necessarily and obviously excessive on the facts of this case. Nor do I regard the resultant sentences as unreasonably high.
19. Although the 2011 sentence appears relatively lenient, had all the offences been dealt with at the same time, I am not persuaded that the individual sentences imposed in 2014 were outside the range of sentences available to the sentencing judge. The leniency to be afforded to the applicant on account of his age and ill-health is moderated by the need to impose appropriate sentences which reflect the seriousness of his offending on multiple sexual offences against different victims.
20. It may be accepted that the fixed term of 3 years for count 3 was a stern sentence; however the offending on count 3 was made particularly serious, for the reasons identified by the sentencing judge. It bears repeating that the second victim was more defenceless and vulnerable in view of her young age (6 years), that the applicant had restrained the victim from moving away when she attempted to do so, and that this offending followed shortly after the first victim had ceased attending the applicant's home in August 1996. That is not to suggest that the offending the subject of count 3 is to be viewed as part of the same episode as that the subject of counts 1 and 2. Rather, that when the first victim was no longer subject to his care and supervision, the applicant, knowing at the time that his conduct was wrong, preyed upon an even younger victim when the next opportunity to abuse his position of authority arose.
21. Accepting that the individual sentences were within the range of appropriate sentences available to her Honour, I am not persuaded that the structure of those sentences failed to give effect to the principle of totality. I am mindful that the need for general deterrence should be viewed in the light of the applicant's age and ill health and the real risk that he will spend the remainder of his life in custody. However, the applicant's offending, particularly considering the breach of trust which it involved, is of such a degree of seriousness that, taking into account all the circumstances, I do not regard the 2014 sentences as plainly unreasonable or unjust.
22. I propose the following orders:
23. Extend time for leave to appeal and grant leave to appeal.
24. Dismiss the appeal.
25. FAGAN J: I agree with Gleeson JA.
26. With reference to ground 3 (that the sentence was manifestly excessive in the length of individual terms and in the extent of accumulation) I consider, first, that in structuring the sentences for the 1996 offences it was within her Honour's discretion to provide for partial accumulation. Having regard to the applicant's age, ill-health and reduced life expectancy the critical consideration relevant to severity is the effective length of the combined non-parole periods. The applicant has received, in total, 5 years without parole for count 1 (the assaults upon a nine year old girl as described by Gleeson JA at [10] - [12]), count 2 (against the same nine year old as described at [13]) and count 3 (against a six year old girl, as described at [16]). For multiple offences against one victim and a serious, forcible and frightening sexual assault against another, both of such young ages, 5 years without parole could not in my view be regarded as manifestly excessive. Taken together with the balance of term of an effective 3 years, the overall head sentence is not excessive.
27. Further, it was within the learned sentencing judge's discretion to accumulate the sentences imposed for the 1996 offences upon the non-parole period for the 2004 offences. Her Honour correctly recognised that this approach was justified where the earlier offences were separated from the later by eight years and constituted an episode of offending, against two victims, entirely discrete from the offending against a third victim in 2004.
28. In support of ground 1, that her Honour failed properly to "apply principles of totality", the applicant laid stress upon his age (67 years when sentenced in the District Court), ill-health and reduced life expectancy. He referred to the prospect that he may not live to see his earliest date for release on parole under the sentence imposed by her Honour. Contrary to the applicant's written submissions these considerations were expressly taken into account by the learned sentencing judge. It is a common feature of historical sexual offences committed by older men against very young children that, by the time the victim has reached maturity and is able to summon the courage to make complaint to authorities, the offender will be advanced in years. By the time he is brought to justice he may be quite elderly, or ill-health of later years may have caught up with him.
29. The necessity for the courts to impose penalties which reflect the community's abhorrence of these crimes and which otherwise fulfil the purposes prescribed in s 3A Crimes (Sentencing Procedure) Act 1999 (NSW) restricts the degree to which sentences can be mitigated on account of the age and/or frailty of the offender. This was considered at length in Holyoak v R (1995) 82 A Crim R 502 at 507 - 508, again in R v DB [2001] NSWCCA 320 at [17], [18] and more recently in Wright v R [2016] NSWCCA 122 at [95] - [97], a case of an elderly historical sex offender who sought to adduce fresh evidence of deterioration in his medical condition following the passing of sentence at first instance.
30. In Holyoak v R at 507 Allen J said (with the concurrence of Handley JA): "It is, of course, clear that a sentence imposed upon an offender when he [is] of such an age that, should he not die in gaol, he will have little worthwhile life left after his release is likely to bear more heavily upon the offender than a similar term imposed upon a younger man who can look forward to a worthwhile life after release. … The real question, as I see it, is whether the objective gravity of the offences in the present case were [sic] such that it was within the bounds of judicial discretion for his Honour to impose the sentence that he did notwithstanding what, having regard to the applicant's age, the consequences well might be. It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced aged [sic] of the offender, that he well may spend the whole of his remaining life in custody."
31. Holyoak v R was a case of an offender who was elderly but not in ill-health. The considerations referred to by Allen J apply equally to circumstances such as the present where the offender's age is less but illness has shortened his life expectancy. In such a case there is the additional requirement to take into account how much more difficult life in prison may be for the offender, by reason of his medical condition, relative to the burden of incarceration upon a person in good health. The Remarks on Sentence show on their face that her Honour had regard to these matters and the sentence imposed does not manifest inadequate weight having been given to them.
32. N ADAMS J: I agree with the judgment of Gleeson JA and with the orders that his Honour proposes. I also agree with the additional reasons of Fagan J, in particular his observation at [99] - [100] concerning a common feature of sentencing for historical child sexual assault assaults, being the age and potential ill health of the offender. I wish to add some further comments concerning Ground 3 and the relevance of the applicant's ill-health.
33. There was evidence placed before the sentencing judge to establish that the applicant had a number of significant health issues, as set out by Gleeson JA at [24]. Her Honour dealt with this issue in these terms: "Despite such apparently serious health conditions there is no evidence before the Court that establishes that imprisonment will have a gravely adverse effect on the offender's health such that would characterise the evidence of ill-health as requiring particular leniency. This is recognised in The Crown v Smith (1987) 44 SASR 587 at 589. It is accepted, however that the aspect of regular dialysis and limited dialysis equipment makes imprisonment more burdensome. Certainly the prison authorities appear to be facilitating the medical needs of the offender so as to prevent undue hardship."
34. There was no challenge to that finding in this Court. The sentencing judge was aware of the applicant's ill-health and went on to state in her reasons that she took it into account, along with the applicant's age and other subjective features. Her Honour was clearly aware of the relevant principles. Her reference to the decision of King CJ in R v Smith (1987) 44 SASR 587 is to the following passage of that decision, where his Honour considered the relevant principles with respect to how the ill-health of an offender is to be properly taken into account on sentence (at 589): "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."
35. The applicant's counsel provided written submissions to the sentencing judge at the proceedings on sentence dealing with the relevant principles and making reference to the decision of this Court in Leighton v R [2010] NSWCCA 280. In that decision, Price J (with whom Simpson J (as her Honour then was) and Howie AJ) stated at [36] that, "Where ill health is considered to be relevant to the determination of sentence, the extent of the mitigation is to be balanced against the seriousness of the offence: R v BJW (2000) 112 A Crim R 1". Price J also cited other relevant authorities of this court concerning the relevance of an offender's ill-health, including R v Badanjak [2004] NSWCCA 395. In R v Badanjak, Wood CJ at CL (with whom McClellan AJA and Smart AJ agreed) considered at [11] that "…it is only in a relatively rare case that the Smith principle is applicable."
36. Her Honour was aware that, by reason of the applicant's age and ill health, there was a significant likelihood that the applicant would die before the expiration of his non-parole period. It is not uncommon for this Court to hear applications for leave to appeal against sentence brought by elderly applicants or applicants suffering from serious illnesses, which may well be exacerbated by the custodial environment. Some of those conditions may be terminal. The Court has sympathy for applicants in such circumstances but it is not for this Court to intervene in a sentence that is otherwise appropriate and not affected by error in order to give an ill or elderly applicant hope of release before his or her death.
37. The release on parole of an inmate on compassionate grounds is an administrative matter for the Parole Authority. Section 160 of the Crimes (Administration of Sentences) Act 1999 (NSW) provides as follows: "160 Parole orders in exceptional circumstances (1) The Parole Authority may make an order directing the release of an offender on parole who (but for this section) is not otherwise eligible for release on parole if the offender is dying or if the Parole Authority is satisfied that it is necessary to release the offender on parole because of exceptional extenuating circumstances. (2) The Parole Authority is not required to consider an application for a parole order under this section, or to conduct a hearing, if it decides not to grant such an application. (3) Divisions 2 and 3 do not apply to a parole order under this section. (4) This section does not apply in respect of an offender serving a sentence for life."
38. This Court has noted the availability of that provision in cases where the ill health of an applicant is such that there is a likelihood they may die before the expiration of the non-parole period. The applicant in Iglesias v R [2006] NSWCCA 261 had undergone surgery for lung cancer. McClellan CJ at CL (as his Honour then was) (with whom Hulme and Hall JJ agreed) noted at [16] the availability of s 160 of the Crimes (Administration of Sentences) Act 1999, and the prerogative of mercy (preserved by both s 270 of that Act and by s 102 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) should the applicant's cancer recur.
39. Similarly, in Anastasiou v R [2010] NSWCCA 100, the applicant was diagnosed with terminal cancer after sentence. There was no evidence that Justice Health was unable to manage his condition effectively. Relevantly, Rothman J (with whom McClellan CJ at CL and James J agreed) observed at [34] and [37]: "34.There is no doubt that the terminal illness of the applicant, Mr Anastasiou, is one which evokes great sympathy, not least from the Court. But sympathy is not the test that this Court must apply. The Court must apply principle. … 37. No doubt, there will come a time when it will be essential for Mr Anastasiou to be released from prison. His release from prison, at this stage, would be as a result of sympathy, not principle, and such sympathy is the province of the Executive Government, either through the Parole Authority or the grant of mercy; not by the grant of appeal."
40. The present case differs from those decisions in that evidence of the applicant's multiple health conditions was before the sentencing judge. Despite this, there was no updated material before her Honour in December 2014 as to the applicant's life expectancy beyond what was before Williams DCJ in March 2011, nearly four years earlier (see judgment of Gleeson JA at [24]). If there was a dramatic downturn in his health in the coming years, then it would be open to the applicant to apply to the State Parole Authority for early release on parole on compassionate grounds.

Amendments 30 November 2016 - [45], [48], [78], [79] Typographical corrections. 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: 30 November 2016