Hall v R

v (2001) 125 A Crim R 551; [2001] NSWCCA 436 R v Fernando (1992) 76 A Crim R 58 R v Holder; R v Johnston [1983] 3 NSWLR 245; (1983) 13 A Crim R 375 R v Jarrold [2010] NSWCCA 69 R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Reyes [2005] NSWCCA 218 R v Rossi (1988) 142 LSJS 451 R v Vaitos (1981) 4 A Crim R 238 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Sabbah v R (Cth) (2020) 283 A Crim R 78; [2020] NSWCCA 89 Simon v R [2013] NSWCCA 328 Stanton v R [2017] NSWCCA 250 Stephens v R [2010] NSWCCA 93 Vaughan v R [2020] NSWCCA 3 ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 Texts Cited: D A Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann) Category: Principal judgment Parties: Adam Hall (Applicant) Regina (Respondent) Representation: Counsel: Mr R Rajalingam with Mr D Mulligan (Applicant) Ms C Dodds (Crown)

Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2019/46544 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: R v Hall [2020] NSWDC 532 Date of Decision: 23 April 2020 Before: Bright DCJ File Number(s): 2019/46544

Judgment

1. LEEMING JA: I agree with R A Hulme J.
2. R A HULME J: Mr Adam Hall seeks leave to appeal against a sentence imposed on 23 April 2020 by her Honour Judge Bright in the District Court at Gosford.
3. The sentence was in respect of nine offences involving aggravated detain with intent to obtain advantage, aggravated sexual intercourse without consent and sexual intercourse without consent. The offences were contrary to ss 86(2)(b), 61J(1) and 61I of the Crimes Act 1900 (NSW) respectively.
4. Mr Hall also asked the judge to take into account his guilt in respect of a further seven offences of sexual intercourse without consent (s 61I) that were listed on a Form 1 document.
5. The judge imposed an aggregate sentence of imprisonment for 22 years with a non-parole period of 16 years and 6 months commencing on 12 February 2019.
6. The following table shows the offence details, including the maximum penalty and standard non-parole period, together with the indicative sentence assessed by her Honour for each after allowing a reduction of 25% for Mr Hall's early plea of guilty. Sequence Offence Max penalty/ Indicative Sentence of imprisonment SNPP Seq 6 Aggravated detain person with intent to obtain advantage (occasioning actual bodily harm) 20 Years 7 years 6 months No SNPP Seq 7 (and Form 1 offences) Aggravated sexual intercourse without consent (inflict actual bodily harm) 20 years 9 years 9 months 10 years SNPP NPP: 7 years 3 months Seq 9, 12 Aggravated sexual intercourse without consent (threaten to inflict actual bodily harm by means of offensive weapon) 20 years Each: 6 years 10 years SNPP NPP: 4 years 6 months Seq 13, 14, 17, 18, 19 Sexual intercourse without consent 14 years Each: 4 years 6 months 7 years SNPP NPP: 3 years 4 months

1. Mr Hall (hereafter "the applicant") applied for leave to appeal on two grounds: 1. The sentencing judge failed to apply the principles of totality. 2. The sentence is manifestly excessive.
2. There should be a grant of leave to appeal but the appeal should be dismissed for the reasons below.

The offences

1. There was a statement of agreed facts which disclosed the following.
2. The applicant and the victim had been in an intimate relationship for just over a year and there had been no prior violent incidents between them. The offences were committed in a period of about 12½ hours from 4.00pm on Sunday 10 February 2019 during which the victim was detained. They occurred in a house at Macmasters Beach on the Central Coast where they were "house sitting" at the time.
3. During the Sunday afternoon they watched a movie together, after which the victim said she felt tired and wanted to retire to a bedroom and read a book. The applicant told her to sit with him and that they would later prepare the evening meal together. An argument ensued. The victim went downstairs to a bedroom, but the applicant followed a short time later. He grabbed her and twisted her arms up behind her back, tied her hands together with a piece of rope, verbally abused her, and punched and slapped her to the face multiple times.
4. An audio recording was later retrieved from the victim's mobile phone and it contained the following. It demonstrates an attitude of power, dominance, belittlement and callousness the applicant then held for the victim. "OFFENDER: Lie down...I think it's imperative you understand that when my stepmother fucked me off enough to snap, I snapped. Lie down. VICTIM: No. OFFENDER: Lie the fuck down. VICTIM: Go away. [muffled screams] OFFENDER: Listen here…shut the fuck up. Shut the fuck up. Put your fucking hands down. When my stepmother--- VICTIM: [crying] OFFENDER: Put your fucking hands down, cunt. When my stepmother pushed me to the point where I lost my shit, I fucking lost my shit. Now if it wasn't for the fear of reprisal that my stepfather thought he would incur--- VICTIM: [crying] [banging noise] Adam, Adam please. OFFENDER: Put your fucking hands down, cunt. Now listen, my stepfather realised what he would incur and he smoothed things over. Do you understand? Do you understand, cunt? VICTIM: [crying] OFFENDER: Shut up. Stop fucking moving, cunt…Do you understand what this is happening now? Do you understand what the fuck is happening now? What he stopped happening was the uprising of a fucking serial killer. He had the common sense--- VICTIM: [muffled cry] You're scaring me. [banging noise] OFFENDER: Shut the fuck up, cunt. Put your fucking hands down, cunt. [sound of struggle. Victim screams] OFFENDER: Put your fucking hands down, cunt. Listen, you fucking maggot, put your fucking hands down, put them down. [sound of slap x 2] Relax or I'll break your fucking jaw and pull your fucking tongue out, cunt. Do you understand? VICTIM: Mm-hmm. Please, Adam, please. OFFENDER: Put your hands down. Now listen. The last time I snapped, the cunt that made me snap had the common sense to do the right thing and keep his fucking mouth shut. Guess what? You didn't. Shut your fucking mouth. VICTIM: [crying] OFFENDER: Do you think you're in control now, cunt, fucking maggot, fucking dog, do you think you're in control now? Guess how much time I've got with you in this house to torment you and fucking torture you? Guess how much time?... She's dead. She's dead. His fucking whore wife is dead. Guess what you've done? Pushed me to that point. Did I ask you to talk, cunt? Put your fucking hands down. VICTIM: Baby, please. OFFENDER: Do you know who you're talking to, cunt?... Listen to me. Do you want me to keep your nose and your mouth blocked or just your mouth? Did I ask you to talk, cunt? [sound of slap or hit] Put your hands down. Shut your mouth. Put your hands down or I'll break your nose and jaw, got it? Just nod. Imagine if I let you go, how long I've got out of gaol, just imagine…do you think this is my first walk in the fucking park? That doesn't mean I'm going to kill you…Do you know how strong I am? Chances are I'm gunna end up back in gaol. Am I asking for a response? Open your fucking eyes, cunt. Chances are I'm gunna end up back in gaol for a long time. You've never met my kids, have you? Never met my parents, have you? How long have we known each other, 14 months? [sound of hit or slap] How long have we known each other, cunt? [sound of hit or slap] A nod will suffice. Do you even know? Have you met my granddaughter? No. Have you met my friends? No. So let me ask you a question. Do you know anything about me? No. Do you know when I got out of gaol? No… Until you piss me off you can have your nose back. Guess what we're doing for the next few days? Whatever the fuck I want. Where's your phone, cunt? Where, on the bed? VICTIM: Mm-hmm. OFFENDER: Put your legs down… VICTIM: [muffled] OFFENDER: If you make a sound above 1 decibel, I'll punch you in the fucking face and break your fucking jaw. What do you want to say? VICTIM: Please--- OFFENDER: Too long, too fucking long. Boo hoo. Boo fucking boo. VICTIM: [crying] OFFENDER: If you raise your voice I'll cut your fucking throat, you understand me? VICTIM: Can I say something? OFFENDER: Quietly. Say it now. VICTIM: If you let me go I will do and be anything you want me to. OFFENDER: [laughs] What are you going to be if I don't let you go? …Explain to me what the difference is if I let you go and give you the opportunity to do what I want…as to the situation now, because I control you, you fucking… [hitting sound x 3] VICTIM: Please [crying/screaming]. I don't want to die, Adam…second chance… OFFENDER: A second chance? VICTIM: Please. OFFENDER: Put your fucking arm down, cunt, put it down. Do you think there is any coming back from this? ...You think there's some coming back from this, do you? [laughs] You had a fucking chance, cunt. But you fucking ignored it, didn't you? You had a fucking chance…multiple fucking chances to do as you're told. VICTIM: Adam, please. OFFENDER: Settle down or I kill you now and just fucking rape your corpse. What are you tapping on me for? ...The more noise you make, the quicker I'm going to kill you, cunt… VICTIM: Please, Adam, please. Baby, please, give me a chance. OFFENDER: Behind your back. VICTIM: Please give me a chance. I don't want to die. I want to love you. OFFENDER: Oh bullshit you fucking lying cunt, you fucking maggot. [sound of something smashing] OFFENDER: That was worthwhile, wasn't it? VICTIM: Please, I'm scared I'm going to die."

Sequence 7 - aggravated sexual intercourse without consent (inflict actual bodily harm) - Crime Act, s 61J(1).

1. The applicant used the knife to inflict a cut to the victim's right upper thigh which extended down to the muscle. He told her that if she did everything that she was supposed to he would leave her tied up there and would not kill her. He then forced her to suck his penis in a way that caused her to gag. This lasted for 10-15 minutes. She was dry retching and recalled wetting herself during this assault.

Sequence 22 - sexual intercourse without consent - Crimes Act, s 61I - Form 1.

1. The applicant then "whacked" the victim across the head and told her she looked "ugly and disgusting". He took her into the bathroom and made her shower and wash her hair. He said words to the effect of, "look at you, you fucking piece of shit". He then took her back to the study and again forced her to suck his penis. He told her she would die if she did not do what he said.

Sequences 9 & 12 - aggravated sexual intercourse without consent (threaten to inflict actual bodily harm with offensive weapon) - Crimes Act, s 61J(1). Sequences 23 & 24 - sexual intercourse without consent - Crimes Act, s 61I - Form 1.

1. After some time, the applicant took the victim to the garage where he obtained a pair of pliers and a hammer. He told her that if he felt her teeth on his penis, he would either rip out all her teeth with the pliers or break her toes with the hammer. They returned to the study where she was again forced to suck his penis (seq 9). He digitally penetrated her vagina with such force that it caused her to urinate (seq 23). He told her to defecate and then penetrated her anus with his penis (seq 24). He then removed his penis and put it inside her mouth (seq 12).

Sequence 13 - sexual intercourse without consent - Crimes Act, s 61I.

1. The victim recalled that this episode lasted around 4-5 hours. During this time the applicant made her put his penis in her mouth and forced her to swallow his urine (seq 13). He did this a number of times throughout this period.
2. Sometime after midnight the applicant said he wanted to purchase some cigarettes. He told the victim he would put her in the car, and she was not to speak or do anything. Her hands remained tied behind her back. He took her outside, tied her by the neck, back and feet, otherwise described as being hog-tied by the hands and feet behind her back, [1] and put a ball of material inside her mouth. He put her in the car behind the rear seats. She was naked and he covered her body with a blanket.
3. The applicant drove to a convenience store at Kincumber where he bought cigarettes and a lighter. (In his later admissions to police he said he told the victim he would kill her if she got out or tried to attract any attention.) He then drove back to the home and took her inside. She asked him for a drink of water which he gave her. He then made her sit on the floor of the downstairs study and smoke a cigarette. She was not a smoker and did not like cigarettes. When she asked him for an ashtray, he told her to extinguish the cigarette on the floor.

Sequence 14 - sexual intercourse without consent - Crimes Act, s 61I.

1. The applicant again forced the victim to suck his penis. She soiled herself with urine and defecated. He again took her to the shower before returning her to the study. At this point he told her that she was not doing what he wanted. She said something like, "I can't do anything with my hands tied behind my back". He agreed to untie her hands but said that if she reached for the knife or tried to get up, "you're dead".

Sequence 15 & 16 - sexual intercourse without consent - Crimes Act, s 61I - Form 1. Sequence 17 - sexual intercourse without consent - Crimes Act, s 61I.

1. The applicant then forced the victim to suck his penis until it was erect (seq 15), at which time he penetrated her anus with his penis (seq 16). She described the anal penetration as, "so hard I thought I was going to break". He then removed his penis from her anus and put it inside her mouth (seq 17). This occurred several times.

Sequences 18 & 19 - sexual intercourse without consent - Crimes Act, s 61I. Sequences 20 & 21 - sexual intercourse without consent - Crimes Act, s 61I - Form 1.

1. The applicant thereafter repeatedly sexually assaulted the victim. This included one act of penetrating her anus with his penis (seq 18), penetrating her vagina with his penis (seq 19), and digital penetration of her vagina (seq 20) and her anus (seq 21). These acts were repeated over a two-and-a-half-hour period.

Escape

1. The applicant fell asleep at about 4.30am. The victim moved him from on top of her and took the opportunity to get up and leave, grabbing a jumper to put on as she fled. She ran until she saw a light on in a house in a neighbouring street, jumped the fence and approached a house. The first occupier she saw was a 10-year-old girl to whom she said, "please don't be frightened, I'm not here to hurt you, but can you get mum and dad". When the parents were woken, the victim told them, "I've been raped and beaten for 12 hours".
2. The police were notified and attended promptly. The victim was observed to have bruised eyes, a deep gash in her upper thigh, and dried blood on her face and feet. Her eyes were almost completely closed due to serious swelling. She was shaking and crying.

Arrest

1. The applicant had left by the time officers arrived at the house. They saw in the house items that had been used during the incident as well as blood stains and clumps of hair. There was also a distinct smell of urine.
2. The applicant was not found until 12.45am on 12 February 2019 when he made a triple‑0 call from a public payphone at Wamberal. He told the operator, "Yeah it's not an emergency mate, I'm handing myself in for a crime". He said he had assaulted his girlfriend "rather viciously" the night before. The operator asked if the victim had needed an ambulance to which he said, "Mate, I don't know, she probably did. I hit her a bunch, I cut her … she left and went to the next-door neighbours and called the police and I absconded from the scene". Officers were dispatched to the area of the payphone and found the applicant sitting in the gutter. He was arrested and taken to Gosford Police Station.

Admissions

1. The applicant made what are described as "full and frank admissions to all the alleged offending conduct". They included that he had twice urinated in the victim's mouth, telling her to drink it. He had repeatedly punched her to the face because he "was angry, to stop her from talking, to make her compliant". He also said that during the sexual assaults, the victim defecated while he had his fingers inside her anus. He wanted her to perform oral sex on him without a clean anus and while his penis was dirty. He said the reason for this was "humiliation".
2. The applicant told police that when he woke up and discovered the victim had escaped, he got dressed and left on his motorbike. He saw police so he panicked and threw his phone in some bushes before hiding his bike behind a shop. He bought cigarettes and disposable razors and intended to kill himself "because I can't live with what I've done to her … I love the woman". He told police he walked into some nearby bushland and sat in a clearing most of the day drinking whiskey and smoking cigarettes.

Other matters

1. Police located the applicant's discarded mobile phone which contained two video files of interest. One showed the victim performing oral intercourse during which he said, "suck my dick you worthless fucking cunt". Another depicted her performing oral intercourse upon him during which he said, "you're boring me, suck it" and, "you've got 20 seconds to make me hard or I'm gunna shove the wine bottle up your arse". In both recordings the victim was naked; she had visible injuries to her face and legs; and her hands were tied behind her back.
2. The victim was examined at Gosford Hospital Emergency Department where the following injuries were recorded: a. Transverse laceration approximately 80mm (down to muscle) over the right mid-thigh requiring ten sutures; b. Bruises and abrasions on upper limbs; c. Periorbital ecchymoses [discolouration from subcutaneous bleeding] and swelling; d. Bruised and swollen left maxilla; e. Swollen right maxilla; f. Multiple soft tissue injuries with bruising; g. Bruised and swollen entire left third toe; h. Transverse laceration approximately 10mm on fourth finger of right hand.
3. An examination of her genitalia noted that it was red and painful, and faecal matter was present. An examination of her anal area noted the presence of dried blood and bleeding from a haemorrhoid.

A related summary offence on a s 166 certificate

1. The judge imposed a two-year community correction order for an offence of damaging property contrary to s 195(1)(a) of the Crimes Act 1900 (NSW). This matter came to the District Court as a related offence on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The damage comprised holes in the walls of the hallway, a broken toilet door handle, and various blood and other stains on carpets, rugs and furniture. [2] The practical utility of pursuing this charge is not apparent. Nothing in the appeal turns on it.

Personal circumstances and background of the applicant

1. The applicant did not give evidence at the sentence hearing. His case comprised the tender of a report by Ms Anita Duffy, psychologist, and a testimonial by a friend. The following is largely drawn from her Honour's careful review of the evidence which was not the subject of any dispute.
2. The applicant was aged 49 as at February 2019. The history he provided to Ms Duffy included that his mother was a sex worker and he did not know the identity of his father. When he was four years old his mother formed a relationship with his stepfather who was violent towards him. Both his mother and stepfather were alcoholics. Their relationship ended after about five years.
3. When the applicant was about 14 years of age he went to live with his stepfather and his new partner, Shirley. He reported severe physical and emotional abuse, as well as a sexual fascination with Shirley, during this time. As a result of the severity of the physical violence he ran away from home at the age of 16 and lived in refuges or on the streets. He began getting into trouble whilst still a juvenile and spent time in Mt Penang Juvenile Justice Centre.
4. The applicant had a number of appearances in the Children's Court and his offending continued as an adult from 1988 to 1998. It included an offence of assault in 1989 and robbery with striking and wounding in 1992. In Queensland there was an offence in 1998 of producing dangerous drugs. Her Honour regarded the record as disentitling the applicant to any leniency that would otherwise be available to a person of good character.
5. At the time of sentencing, the applicant's mother lived in Queensland and had early onset dementia. However he remained close to her and they were in regular phone contact.
6. The applicant reported that he had previously been married and had three children now aged in their twenties. He remained in contact with two of them.
7. He told Ms Duffy he became involved with the victim via an online dating service in 2018. He said he fell in love with her after a few months of dating. She was a professional house sitter and they lived together in various houses.
8. Her Honour noted that the applicant had a limited education, leaving school in Year 9. His subsequent employment history was generally in low-skilled positions. He was employed as a salesman of solar panels at the time of his arrest in 2019.

Findings by the sentencing judge

1. The applicant's pleas of guilty were entered in the Local Court and adhered to upon committal to the District Court. There was a 25% reduction of sentence for their utilitarian value.
2. Her Honour was satisfied there was a nexus between the applicant's childhood deprivation and the offending that warranted a reduction in his moral culpability in accordance with the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
3. She accepted a submission that the applicant's time in custody would be more onerous as a consequence of the diagnosis of Major Depressive Disorder. She said she would moderate the otherwise appropriate sentences as a result, referring to the summary of relevant principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194 at [177].
4. The applicant was found to be remorseful for his offending. His prospects of rehabilitation were assessed as "guarded", although her Honour said it was encouraging that he had expressed a willingness to undertake rehabilitation programs and he had the support of people in the community. She was unable to find that he was unlikely to reoffend.
5. A submission that there were special circumstances was rejected on the basis that the usual ratio pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act would give rise to a very lengthy parole period in any event.

Ground 1: failure to apply the principles of totality

1. This ground of appeal concerns various features and attributes of the principle of totality and whether the sentencing judge was in error in not referring to and applying them all. It will be useful then to commence with what has been said in appellate cases about the principle.
2. Attorney-General v Tichy (1982) 30 SASR 84 was a Crown appeal against concurrent sentences imposed upon a man for armed robbery and for shooting with intent to cause grievous bodily harm. The shooting was directed at a police officer as the man attempted to flee after committing the armed robbery. After stating that it was impracticable and undesirable to lay down comprehensive principles as to when sentences should be ordered to be served concurrently or consecutively, Wells J explained the rationale for a principle of totality at (92-3): "According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. … The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient."
3. Street CJ described the principle in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 as follows: "The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."

How the issue of totality was addressed below

1. The Crown submitted to her Honour on the question of totality that "there should be some significant degree of accumulation between the offences". [3]
2. The applicant's counsel (who did not appear in this Court) conceded there would be "a reasonably lengthy full-time custodial sentence". She submitted there were a number of factors relevant to the overall structure of the sentence, the first of which was "totality" and the need to bear in mind that the sentence "is not one that would be crushing". [4] In oral submissions she contended for a significant degree of concurrence notwithstanding the number of offences, each of which were constituted by separate acts of violence and degradation. [5]
3. In her sentencing remarks the judge said: "Totality 174 I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act. 175 I am required to consider the question of totality in circumstances where the offender is being dealt with for nine offences. 176 The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but if not, there should be some accumulation (see Cahyadi v R (2007) 168 A Crim R 41). 177 I am satisfied that some partial accumulation is warranted in respect of each of the offences in order to reflect the total criminality, whilst recognising that all of the offending occurred during one lengthy episode."
4. The details of the indicative sentences and the aggregate have been set out in detail above (at [6]). It may be seen that the indicative terms amounted to almost 52 years, whereas the aggregate sentence was 22 years.

Submissions in this Court

1. The applicant accepted that the sentencing judge correctly had regard to the description of the totality principle in Cahyadi v R. However, counsel submitted: [6] "Her Honour does not appear to have had regard to, or referenced, any other principle of totality, including that: a. The Court must, per Clinch, be conscious that the severity of a sentence is not linear to its length rather its severity increases at a greater rate than the length of the sentence; b. Per Mill, upon settling on appropriate assessments for discrete offences, the Court must take 'a last look at the total just to see whether it looks wrong,' and, c. The Court must in that context, avoid the imposition of a crushing sentence."
2. Reference has already been made to Clinch v R and Mill v R. In relation to point (c), a footnote in the applicant's submissions cited Chaouk v R [2017] NSWCCA 295 at [62] where Fullerton J expressed a conclusion that an aggregate sentence was manifestly excessive, in part by criticism of a sentencing judge for making "no assessment of the total criminality reflected in the overall offending" (the basis for such a requirement not being stated) and by also saying: "In addition, there is nothing in the sentencing reasons to illuminate the basis upon which the aggregate sentence of 27 years was assessed as just and proportionate to the overall offending so as to avoid the imposition of a crushing sentence as required in the proper application of the totality principle (see Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 304, 307-308 and 313-314)."
3. There are other aspects to the argument in support of this ground, but they need not be addressed in any detail. [7] They involved an analysis of various cases in which issues concerning "notional" accumulation and concurrency of indicative sentences in aggregate sentence cases have been discussed. They start with an assertion of there having been a divergence of views of members of this Court which progresses to cases which clarify that there has in fact been no such divergence: Vaughan v R [2020] NSWCCA 3; Kleindienst v R [2020] NSWCCA 98; Aryal v R [2021] NSWCCA 2; and Noonan v R [2021] NSWCCA 35. The significant point in response to this is that all of the cases discussing aggregate sentences remain faithful to the principles collected in JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39]-[40], particularly as to the centrality of the totality principle as described in Cahyadi v R, both in determination of an aggregate sentence at first instance and in appellate consideration when erroneous inadequacy or excessiveness is contended.

Consideration

1. The last submission may be rejected immediately. The judge referred to a "lengthy episode" but she did not emphasise it: see the extract from the sentencing remarks at [177] quoted above (at [67]). In addition, as a general proposition there is no "degree of specificity" required of a sentencing judge in the application of the totality principle beyond giving an indication that sentences might be concurrent or accumulated, partly or wholly. In some circumstances it might be appropriate to further describe the degree of concurrence or accumulation, such as "substantial" or "slight", but there is no mandatory requirement in all cases. Usually what the judge intended in terms of the extent of concurrence or accumulation will be evident from the outcome.
2. This was what Rothman J was alluding to in JT v R [2012] NSWCCA 133 at [73]: "Generally, in the application of the principle of totality, it is difficult, if not impossible, for a sentencing judge to do more than state and apply the principle on the facts as found. Greater transparency is extremely difficult. The process is at the essence of intuitive or instinctive synthesis. As a consequence, once a sentencing judge notes that the principle is being applied (or plainly, by an examination of the process involved, has applied the principle), assuming the facts are correctly stated, in order for an appeal court to intervene, the result must manifest an incorrect application of the principle. Otherwise, interference with the result is impermissible."
3. The applicant contends that the sentencing judge failed to refer to three aspects of the principle of totality: 1. "the severity of a sentence increases at a greater rate than any increase in the length of the sentence"; 2. "it is always necessary for the court to take a last look at the total just to see whether it looks wrong"; and 3. avoidance of imposing a "crushing" sentence.
4. No authority was cited for a proposition that these are essential matters pertaining to the principle of totality that a sentence judge is obliged to make express reference to.
5. It is necessary to say something about the expression, "a crushing sentence". It implies something impermissible but that is not necessarily so. For example, in R v Vaitos (1981) 4 A Crim R 238 at 301, O'Bryan J said: "I have some difficulty appreciating the concept that a richly deserved sentence, not manifestly excessive, should be disturbed because the person upon whom the sentence is imposed may feel crushed by it."

Ground 2 - manifest excess

1. The principles to be applied in determining a ground asserting manifest excess (or inadequacy) of sentences are well-known. They were collected in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (citations omitted): "Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
2. Specifically in relation to appellate consideration of an aggregate sentence, the principal focus is whether the sentence reflects the total criminality: Kerr v R [2016] NSWCCA 218 at [114] (Bathurst CJ).

Submissions and consideration

1. There were two components of the applicant's contention that the aggregate sentence is manifestly excessive: misapplication of the principle of totality and a comparison with other cases.

"Misapplication of the totality principle"

1. It needs to be borne in mind that an appeal to this Court lies in relation to the aggregate sentence, not in relation to any or all of the indicative sentences that are nominated but not in fact imposed. True it is that regard may be had to the indicative sentences as a guide to whether the aggregate may or may not be erroneously excessive (or inadequate) but the principal focus of determination of a ground alleging manifest excess (or inadequacy) is whether the aggregate sentence reflects the totality of the criminality involved: JM v R at 40.
2. As to the offences being committed within an ongoing course of conduct, it is well-settled that this does not necessarily require concurrency of sentences of any, or a particular, degree: R v Jarrold [2010] NSWCCA 69 at [56]. Howie J there reiterated that: "The question to be asked is, can the sentence for one offence encompass the criminality of all the offences?"
3. In the context of submissions under Ground 1, counsel for the applicant was critical of the sentence as reflecting "substantial" and not "partial" accumulation, the latter being the judge's stated intention. However, as the Crown correctly pointed out, [16] the reference by her Honour to "partial accumulation" was an implicit indication of "partial concurrency". It simply indicates that the sentences are not entirely one or the other. The fact that the indicative sentences totalled almost 52 years whereas the aggregate sentence was 22 years reflects this. The Crown submitted this can hardly be described as a "substantial" degree of accumulation and I agree.
4. A further factor pointed out by the Crown [17] in supporting the correct exercise of sentencing discretion were the clear terms in which the judge indicated that she was required to consider each charge separately before considering questions of accumulation and concurrency and was careful not to double count any feature to the applicant's disadvantage. In relation to the latter, there was much discussion at the sentencing hearing, initiated by the judge, as to the common features in relation to particular offences.
5. Before turning to her Honour's assessment of the seriousness of the offences it is worth noting her overall description of the case after she had reviewed the facts of the offences: [18] "Those facts disclose very serious objective criminality. The conduct was a sustained, brutal and terrifying attack upon the victim that included multiple humiliating and degrading sexual acts. Such behaviour is wholly abhorrent and simply cannot be tolerated in a civilised society."

"Comparable cases"

1. It was submitted that the following features in the applicant's case that were the subject of favourable findings by the judge needed to be borne in mind when comparing his sentence with sentences passed in other cases: 1. Early pleas of guilty with 25% utilitarian discount. 2. Immediate and extensive admissions coupled with genuine remorse. 3. Limited criminal record with no history of violence with the victim or of domestic violence offences. 4. Deprived upbringing which had a nexus with the offending that warranted a reduction in moral culpability. 5. Prospects of rehabilitation which were at least described as encouraging (compared to most of the offenders in the cases relied upon). 6. Major depressive disorder at the time of sentence which was found to result in a more onerous time in custody.
2. As to the applicant's criminal record, it should be noted that her Honour regarded it as one that disentitled him to the leniency that might be afforded to a person of good character. It should also be noted that while the applicant's prospects of rehabilitation were said to have some encouraging signs, they were still assessed by her Honour as "guarded". Further, she was unable to find he was unlikely to reoffend.
3. The written submissions referred to eight cases where there were sentences for aggravated kidnapping ranging from 5 years (after 25% discount) to 11 years (20% discount) which were said to demonstrate that the indicative sentence of 7 years 6 months in the present case was "completely within range". [23] That does not assist the applicant.
4. Reference was then made to a further five cases where there were sentences for aggravated sexual assault, with the circumstance of aggravation being of the types in the present case (infliction of actual bodily harm or threatened infliction of actual bodily harm by means of an offensive weapon). However, as often occurs when attempts are made to compare the sentence imposed in one case with that in another, there usually are differences in facts and circumstances that affects the utility of the exercise.
5. The utility of the exercise is also limited in the way Howie J observed in Newell v R [2004] NSWCCA 183 at [43]; even if a range of sentencing could be discerned by reference to other cases it does not mean that the sentence for a particular offence or offender must fall within that range. It merely provides a sounding board against which a particular sentence may be judged. Further, as was noted in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [39], [24] sentences imposed in the past do not fix "the boundaries within which future judges must, or even ought, to sentence".

Hurst v R [2017] NSWCCA 114

1. The first case (in the order in which they were referred to) concerned a total effective sentence of 18 years imposed for nine offences committed over a six-year period, with multiple offences taken into account. Seven of the offences occurred over a 12-hour period when the victim was detained and subjected to violence and sexual assaults. Counsel for the applicant in the present case submitted that the objective circumstances of Hurst were arguably worse and committed in a context of domestic violence. It was erroneously stated in written submissions that each individual sentence was discounted by 25% for the offender's pleas of guilty; the judgment (at [6]) indicates the reduction was 10% as the pleas were entered on the day of trial.
2. The applicant submitted that there were features of this case that were worse; the offender was over a substantial period of years, there was a history of domestic and sexual violence, and the offences themselves were worse, yet despite these matters the sentence was less than in the present case.
3. The difficulty with using this case as a comparator is that when it came to re-exercising the sentencing discretion (because the sentencing judge took into account a wrong maximum penalty for one of the offences), Hoeben CJ at CL (Price and Lonergan JJ agreeing) accepted the Crown submission that the offences were more serious than had been appreciated at first instance (it was "well past the midrange and towards the upper end") and the appellant's moral culpability was "very high". He observed that "the entire sequence of offending demonstrated the very worst aspects of domestic violence and were he to re-sentence he would impose a sentence "significantly greater than that imposed by the sentencing judge". [25] The appeal was dismissed on the basis that no lesser penalty was warranted in law.

Stephens v R [2010] NSWCCA 93

1. The next case concerned an 18-year-old man who detained a woman for several hours in her car early one morning after she had left a party. During the period of detention he committed various aggravated (infliction of actual bodily harm) sexual assaults upon her which the sentencing judge considered were within the worst case but which this Court considered to be in the mid-range. Fullerton J did not regard "the error in classification was, of itself, productive of error in the calculation of those individual sentences". [26] Resentencing was required because of an error in how offences on a Form 1 were taken into account. It was observed that the offender was a young man; he was 18 years of age at the time of the "out of character" offending. The primary judge had concluded he had positive prospects of rehabilitation. An overall sentence of 20 years was replaced with one of 18 years (12 years for aggravated detain for advantage; 14 years for aggravated sexual assault with three sexual assault offences taken into account; 11 years for aggravated sexual assault with sundry less serious offences taken into account; and 8 years for aggravated sexual assault with no offences taken into account). Each sentence had been reduced by 25% for the offender's pleas of guilty.
2. The submission in relation to this case was that the offender did not have some of the applicant's more favourable subjective features, including his deprived upbringing and his long period of no offending prior February 2019. There was also the applicant's surrender to police and his extensive admissions.
3. However, other distinctions between Stephens v R and the present case include the relatively lower level of objective seriousness of the offences (mid-range compared to above the mid-range); three as opposed to seven offences of sexual intercourse without consent being taken into account; the offender's youth (aged 18 as compared to the applicant being aged 49); and his positive rehabilitation prospects (with the applicant's prospects assessed as "guarded").

Simon v R [2013] NSWCCA 328

1. Aside from an unsuccessful appeal against conviction following a jury trial, this case involved sentencing for 19 offences including 12 counts of aggravated sexual assault (two were attempts). The aggravation was threatening to inflict actual bodily harm by means of a knife. The offender followed the victim home, gained entry to her apartment and sexually assaulted her over three to six hours. A total effective sentence of 22 years was imposed and was accumulated upon a pre-existing sentence of slightly more than 2 years. The 10 completed offences of aggravated sexual assault each attracted a sentence of 18 years; the attempts 16 years; and the sentences for the other offences ranged from 6 months to 2 years.
2. The primary judge noted the applicant was an Aboriginal man who had not had "the kind of deprived background that was spoken of in the well-known case of R v Fernando" (1992) 76 A Crim R 58. He found the s 61J(1) offences were "well above the mid-range and up towards the high range of objective seriousness". He considered the applicant had an "appalling criminal record"; there was a "complete absence of remorse" and the offender "represents a very serious danger to the general community". This was a post-Muldrock [27] case but no error in the judge's appreciation of the standard non-parole period was found. In support of a contention that the sentences were manifestly excessive the applicant relied upon sentences imposed in other cases about which Macfarlan JA said (in part): [28] "122 It is true that the applicant here has been able to point to cases in which it is arguable that more lenient sentences than the present were imposed but that is of limited, if any, significance, because that will almost always be able to be done (see Vandeventer v R [2013] NSWCCA 77 at [45] - [46]). What is of more, although still limited, significance is that there are cases (Reyes and Stephens) in which sentences not wholly disproportionate to the present sentences have been imposed. Moreover the sentences imposed in those cases were, because they resulted from this Court re-sentencing, ones regarded by this Court as the appropriate sentences for the offences. They were not simply sentences imposed by a lower court that this Court allowed to stand because it had not been shown that they were manifestly excessive. It may be inferred therefore that the sentences which this Court would have considered able to be imposed by a lower court without being quashed on appeal for manifest excess would have included ones higher than the sentences imposed by this Court."

R v Reyes [2005] NSWCCA 218

1. A total effective sentence was imposed in the District Court of 13 years for offences committed against two young women who the offender met in the street, one being aged 18 and the other aged 16. He detained the 18-year-old woman for 20 hours and committed various other offences including aggravated sexual assault committed and administering a stupefying drug (amphetamine). Several days later he committed various offences including aggravated sexual assault against the 16-year-old girl. The Court accepted that there were errors including manifest inadequacy in the sentences for the more serious of the offences. A new total effective sentence of 18 years with a non-parole period of 15 years was imposed.
2. The applicant submitted that this case involved a slightly lesser sentence, even though it was imposed after trial and encompassed offending involving a much higher degree of premeditation and planning than the present offending. There was also the fact that there were two victims.
3. A difficulty in using this case as a comparator is that the assessment of sentence for the aggravated sexual assault offences for a standard non-parole period applied was carried out in accordance with R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131, subsequently held to be erroneous by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. A further and more significant difficulty is that the Court's assessment of resentencing occurred prior to the abolition of the "double jeopardy" principle by s 68A which was inserted in the Crimes (Appeal and Review) Act 2001 (NSW) in 2009 by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW). Thus Grove J (with whom Wood CJ at CL and Hoeben J agreed) referred (at [77]) to the practice of the Court in imposing an increased sentence following a successful Crown appeal being to impose one that is less than would otherwise have been imposed at first instance. For that reason, the sentence imposed by the Court is even less useful as a comparator.

R v Attwater; R v Maris [2017] NSWSC 1710; Attwater v R; Maris v R [2021] NSWCCA 17

1. Attwater was sentenced for manslaughter (indicative sentence of 18 years) and a single count of aggravated sexual assault (12 years) for which there was an aggregate sentence of 19 years. Maris was sentenced for aggravated sexual assault (8 years) and hindering a police investigation (4 years) with the aggregate sentence being 9 years. The facts and circumstances pertaining to this case are too different from the present to warrant attention.
2. Use of so-called comparative cases in the way the applicant has sought to use them here has been the subject of criticism on many occasions. For example, in Sabbah v R (Cth) [2020] NSWCCA 89 at [132]-[135], Wilson J (with the agreement of McCallum JA and Cavanagh J) said: "This Court has frequently emphasised the lack of utility in relying on a series of cases, or sentencing statistics, or both, to contend that a particular range of sentence can be determined and, in turn, that the impugned sentence falls outside it and is manifestly excessive. The point has been made in, to select a very few from a very long list, Vandeventer v R [2013] NSWCCA 33 at [45] - [46]; Dang v R [2014] NSWCCA 47 at [55]; Pham v R [2014] NSWCCA 115 at [57]; MLP v R [2014] NSWCCA 183 at [41] - [44]; Ngatamariki v R [2016] NSWCCA 155 at [65]; and Naveed v R [2019] NSWCCA 149 at [63]. It is an easy thing to find a case or cases where another offender has received a lesser sentence and, by making the comparison between penalties imposed, argue that the sentence in the case at hand was too harsh. That approach is far too glib a mechanism by which to assess the complicated task which is determining an appropriate sentence for an offender. It also falls foul of what has been said by the High Court about the use of so-called comparable cases. In Hili v The Queen; Jones v The Queen 242 CLR 520 [2014] HCA 45 at [59] the Court said, citing Dinsdale v The Queen (2000); [2000] HCA 54; 202 CLR 321 at 325 at [6] and Wong v The Queen (2001) 207 CLR 584 at 605 [58]: '[…] appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases".' It was held that the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must determine sentences."

Conclusion

1. The sentence imposed upon the applicant was certainly a stern one, but the offending viewed overall was extremely grave. As the Crown described it in this Court, the "offending had at its core the intentional infliction of fear, pain, physical injury and sexual violence designed to frighten, harm, degrade and humiliate the victim and to exercise control and domination over her". [29] Bearing in mind the principles set out earlier (including that it is not to the point that this court might have exercised the sentencing discretion differently) I am not persuaded that the sentence was unreasonable or plainly unjust.

Orders

1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
2. CAMPBELL J: I have had the considerable advantage of considering the judgment of R A Hulme J in draft with which I agree. Having said so, I do not understand his Honour's formulation (at [88]) of "the need for the overall sentence to reflect the totality of criminality" to mean anything different from the expression, a "just and appropriate measure of the total criminality involved" employed by McHugh J in Postiglione v The Queen (at 307 - 308). Nor do I regard his Honour's statement as being different from the statement of principle of Redlich JA in Azzopardi v R quoted by R A Hulme J (at [80]). Clearly in sentencing, what is "just and appropriate" or "fair and just" may cover a number of different aspects of the facts, matters and circumstances relevant to the particular sentencing task at hand extending beyond the objective serious of the offending.
3. R A Hulme J's scholarly analysis and exposition of the principle of totality as explained in the leading authorities demonstrates that the principle is multifaceted and the effect of its application may vary from case to case as a different facet may have greater relevance in one case than another. I certainly agree that it is not incumbent upon a sentencing judge to refer to every facet, or possible application, of any sentencing principle in the individual case with which he or she is concerned. Only that facet or those facets which appear relevant to the task at hand need be referred to or applied. If some relevant facet of a given principle has been overlooked or misapplied doubtless that can be corrected in the Court of Criminal Appeal.

Endnotes

1. Proceedings on sentence 9 April 2020, tcpt p 14(40); Crown written submissions on sentence at [9]
2. Statement of Agreed Facts, Exhibit E
3. Crown written submissions on sentence at [21]
4. Written submissions for the offender on sentence at [25]-[26]
5. Proceedings on sentence 9 April 2020, tcpt p 9(5). (The transcript has "a significant degree of accumulation" but this is must be an error, either typographical or by obviously misspeaking.)
6. Written submissions for the applicant (AWS) at [36]
7. AWS at [38]-[44]
8. Appeal hearing, 11 August 2021, tcpt p 8(20)
9. AWS at [51]
10. The assertion of similarity with what I said in Aryal v R [2021] NSWCCA 2 at [52] (in fact [51]) is entirely misconceived.
11. AWS at [54], [56]
12. To Franklin v R [2013] NSWCCA 122
13. ZA v R at [57]
14. ZA v R at [60]
15. Osman v R at [63], [68]
16. Crown written submissions on appeal (CWS) at [57]
17. CWS at [65]
18. Sentencing remarks at [90]
19. Sentencing remarks at [92]
20. AWS at [50]
21. Appeal hearing, 11 August 2021, tcpt p 4(11)
22. This holds true even in respect of the aggravated sexual intercourse without consent (inflict actual bodily harm) offence where there were seven offences of sexual intercourse without consent taken into account. The starting point was 13 years, implying a non-parole period of 9 years and 9 months where the SNPP was 10 years. Absent the Form 1 offences being taken into account, the starting point would undoubtedly have been considerably less.
23. AWS at [70]
24. Reciting with approval a statement by Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [304].
25. Hurst v R at [160]-[167]
26. Stephens v R at [32], [65], [74]
27. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
28. Simon v R at [122]
29. CWS at [60]

Amendments 16 September 2021 - [79] typographical error 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: 16 September 2021