Consideration and conclusion
55The offending in count 1, whilst opportunistic, was obviously serious. It involved an unwarranted and unprovoked attack on a young girl who was simply walking home from the beach. The only available conclusion is that the offending ended purely as the result of intervention by a neighbour. Offending of the kind in count 1 is of particular concern for a number of reasons, not the least of which is that members of the community are entitled to expect that they will be able to walk suburban streets in broad daylight without the fear of being attacked, be it sexually or otherwise.
56Perhaps unsurprisingly, the evidence before his Honour on sentence established that the victim of the offending in count 1, who was only 11 years of age at the time, had been psychologically damaged as a consequence of the attack which was perpetrated upon her. His Honour quite properly regarded this as an aggravating factor.
57The offending in count 2 was even more serious, and displayed even greater criminality. The victim was only 5 years old. Immediately prior to the offending she was within her primary school, an environment within which she was entitled to feel safe. The applicant lured her from the confines of that safe environment and sexually assaulted her. The offending, the entirety of which was committed within full view of a number of young school children, concluded with what could only be described as a lurid and sexually explicit act.
58The break and enter offences in counts 3, 4 and 5 were also serious. Offences of that nature have been previously described by this Court as a social evil from which the community looks for protection to the criminal courts (see R v Hayes [1984] 1 NSWLR 740 per Street CJ at 742 and Lee J at 744). The fact that those offences were committed by the applicant by reason of drug addiction does not mitigate them (see generally R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111).
59In addition, when sentencing the applicant in respect of count 5, his Honour took into account twelve other offences, the majority of which were of a similar nature to the offending in that count.
60As I have previously noted, the applicant's written submissions concentrated upon sentencing statistics, along with sentences imposed in cases which were said to be factually similar. Indeed, the written submissions were directed almost exclusively to those matters. In my view, such a significant reliance upon comparative material is problematic. It has been observed, on a number of occasions, that there are limitations upon the extent to which the Court can engage in such comparative exercises, or rely upon statistics (see for example Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54]; Han v R [2009] NSWCCA 300 at [2] (per Campbell JA) and at [34] per Rothman J). The underlying reasons for those limitations include the restricted information provided by statistics as well as the fundamental proposition that the factual circumstances of offending, and the subjective circumstances of an offender, will necessarily differ from case to case. These issues were the subject of observations by Adamson J (McClellan CJ at CL and Rothman J agreeing) in Vandeventer v R [2013] NSWCCA 33 at [45] - [46]:
"One cannot adjudge whether a sentence falls in an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.
The sentencing consistency to which the law aspires is, as the High Court said in Hili:
....'consistency in the application of relevant legal principles, not some numerical or mathematical equivalence' ".
61It is, of course, not incumbent upon the applicant to demonstrate that the sentences imposed were manifestly excessive in order to establish that some other sentence is warranted in law. However, Adamson J's observations as to the use of what are said to be comparative cases are directly applicable to the present case, and I gratefully adopt them.
62Because of the nature of the errors in respect of counts 1 and 2, lesser sentences are warranted in law for each of those matters. There have been no identified errors in respect of the sentences imposed in respect of counts 3, 4 and 5 and no lesser sentences are warranted. For the reasons advanced by the Crown, there is a necessity to approach the sentencing of the applicant having regard to the totality of his offending.
63The re-sentencing of the applicant in respect of counts 1 and 2 will necessarily have the effect of shortening the aggregate term of imprisonment. However, I propose that the applicant serve a non-parole period of the same length as that imposed at first instance. In order to give effect to this, adjustments have been made to the structure and starting dates of the sentences imposed in counts 3, 4 and 5, although not to the length of those sentences.
64The end result is that the applicant's aggregate non-parole period will remain the same as that imposed by his Honour, although his aggregate total sentence will be shorter. The sentence I propose reflects the totality of the applicant's offending.
65In re-sentencing the applicant I have had regard to the provisions of s. 54B of the Sentencing Act as amended by Schedule 1[3] of the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act NSW 2013 ("the Amendment Act"). In particular:
(i)I have taken into account the standard non-parole periods applicable to counts 1 and 2 as required by s. 54B(2) (as amended by the Amendment Act);
(ii)I have set out above my reasons for the sentences which I would propose be imposed in lieu of those imposed by his Honour at first instance as required by s. 54B(3);
(iii)I have indicated the non-parole periods which I consider appropriate in respect of counts 1 and 2 as required by s. 54B(4); and
(iv)I have set out above the reasons why I consider those non-parole periods to be appropriate as required by s. 54B(5).
66In addition, in re-sentencing the applicant in respect of count 5, I have taken into account the twelve matters on the Form 1 to which I previously referred.