HARRISON v. REGINA [2006] NSWCCA 185

CATCHWORDS: Charged with a co-offender of maliciously inflicting actual bodily harm on a female with intent to have sexual intercourse with her contrary to s.61K(a) Crimes Act 1900 (NSW) - charged with a co-offender of knowingly having non-consensual sexual intercourse with another female in circumstances of aggravation contrary to s.61JA(1)(c)(iii), those circumstances being that the applicant and the co-offender had deprived her of her liberty - applicant pleaded guilty to both charges - appeal against severity of sentence imposed - whether trial judge considered both delay and hardship as constituting special circumstances for the purposes of sentencing - whether failure to expressly refer to and consider individual matters going to hardship constitutes appellable error - the decision as to whether special circumstances exist in a particular case is first one of fact and secondly one of judgment - the sentencing judge had given thorough attention to the facts said to support a finding of hardship when determining the appropriate sentence - the absence of an express reference to the statutory ratio does not of itself indicate an intention on the part of a sentencing judge to impose a non-parole period in accordance with the statutory ratio - the sentencing judge must demonstrate that they have taken into account pre-sentence custody - the sentence must be expressed in terms which make plain that pre-sentence custody has been taken into account and how it has been taken into account - the sentences should have been backdated to commence from the date when the applicant was taken into custody - the sentencing judge's failure to consider matters in mitigation based on equivocal evidence did not result in manifestly excessive sentences

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

R v Edwards (1996) 90 A. Crim. R. 510 R v Bednarz [2000] NSWCCA 533 R v Grbin [2004] NSWCCA 220 R v Simpson (2001) 53 NSWLR 704 R v Cramp [2004] NSWCCA 264 R v Smith [2005] NSWCCA 19 R v Gill [2002] NSWCCA 93 R v Nikolovski [2005] NSWCCA 60 CASES CITED: R v Parker [2003] NSWCCA 270 R v Clissold [2002] NSWCCA 356 R v McHugh (1985) 1 NSWLR 588 R v Deeble (CCA, unreported 19 September 1991) Derron v R [2006] NSWCCA 73 R v Wickham [2004] NSWCCA 193 R v Atonio [2005] NSWCCA 220 R v Hoang [2003] NSWCCA 380 R v Aslett [2006] NSWCCA 48

COUNSEL: App: C. Davenport, SC. Crown: D. Arnott, SC.

SOLICITORS: App: S. O'Connor Crown: S. Kavanagh

IN THE supreme COURT OF new south wales court of CRIMINAL APPEAL 2005/201

McCLELLAN, CJ. at CL. HALL, J. LATHAM, J.

MONDAY 19 JUNE 2006 JAMES GLENN HARRISON v. REGINA Judgment

2 HALL, J: The applicant, James Glenn Harrison, seeks leave to appeal in respect of a sentence imposed in the District Court of New South Wales on 12 April 2005. By indictment dated 11 October 2004, he was charged, pursuant to s.61K(a) of the Crimes Act 1900 with his co-offender, David Michael Millard, that on 5 January 2002 at Newtown he maliciously inflicted actual bodily harm on a female victim with intent to have sexual intercourse with her. The charge attracted a maximum penalty of imprisonment of 20 years.

3 On the same indictment, the applicant and his co-offender were charged pursuant to s.61JA(1)(c)(iii) of the Crimes Act 1900 that on the same date, 5 January 2002, at Beverley Hills whilst in the company of each other, they did have sexual intercourse with a second female victim without her consent, knowing that she was not consenting, and again in circumstances of aggravation, namely, that for a period before sexual intercourse, they had deprived her of her liberty. A person guilty of an offence under s.61JA(1)(c)(iii) is liable to imprisonment for life.

4 The applicant entered a plea of guilty to the charges on 11 October 2004.

5 The applicant relies upon four grounds, namely:- (a) His Honour erred in failing to find special circumstances.

(b) His Honour erred in the accumulation of sentences imposed in that he failed to allow in his total sentence sufficient time for the applicant to spend on parole.

(c) His Honour failed to take into account the period spent in custody.

6 The Crown in its written submissions summarised the relevant factual circumstances. The following is derived from that summary:- "Between 2.30 am and 3.00 am on Saturday 5 January 2002, [the complainant] was attacked by the applicant and his brother, David Millard, whilst walking along City Road in the Newtown area. Millard grabbed her and then threw her over a low brick fence to the ground. He started to choke her to stop her screaming and threatened to shoot her. The offenders, one holding her legs and the other her arms, then carried her towards their car. To stop her struggling, Millard punched her in the face a number of times and her face was pressed into the ground. As they tried to force her into the back seat of the car, she grabbed a traffic pole. Upon seeing the headlights of a car in the distance, the offenders then jumped into the car and drove off, leaving their victim on the side of the road. [The complainant] suffered multiple bruising to the left side of her face, a laceration near her left eye, a bleeding nose and bruising to her knee. During her terrifying ordeal, she thought she would ultimately be killed. The victim impact statement indicated she was studying aircraft maintenance engineering at TAFE during the week and working behind the bar of a restaurant on weekends. This attack occurred when walking home from work."

The second charge "A short time later, the applicant then picked up in his car a 19 year old [woman, the second complainant] who was working as a street prostitute in Darlinghurst. Millard hid in the back seat obviously crouched down. After their victim entered the front passenger seat, the applicant drove off. Millard then struck her over the back of the head dizzying her, covered her eyes with something and dragged her into the back seat whereupon he raped her, forcing her to fellate him and then having penile/vaginal intercourse. The car stopped at a park in Beverley Hills where their victim was placed on a blanket on the ground whereupon the offenders took it in turn to have penile/vaginal intercourse with her twice as she lay on the blanket; and each ejaculated insider her vagina on their second occasion. The one charge against the applicant was a 'rolled up' one in respect of his actions. After driving her to the entrance of the park, the offenders then told the victim to get out of the car, drove off and left her there. The applicant was spoken to by police later that same morning outside his home at Campbelltown but was not arrested and charged until 15 March 2002. His brother was arrested about four months later. The applicant was 38 years at the time of these offences. His brother was nearly three years younger."

7 The applicant and the co-offender, Millard, pleaded guilty to an additional charge under s.61JA. The matters were adjourned on a number of occasions and on 7 April 2005 the sentencing judge heard evidence in both cases. On completion of the hearing, bail was refused. Submissions were heard on 11 April 2005 and both offenders were sentenced on 12 April 2005.

8 In relation to the offence under s.61K(a), the applicant was sentenced to a fixed term of imprisonment for three years to date from 12 April 2005 (the date on which the sentence was imposed) to expire on 11 April 2008. It is noted that the applicant had been, at that stage, in custody for five or six days, a fact that the sentencing judge said that he took into account. The applicant contends that that period was not in fact taken into account.

9 In respect of the second charge under s.61JA(1)(c)(iii), the applicant was sentenced to imprisonment for a period of nine years with a non-parole period of seven years. The non-parole period was stated to commence on 12 April 2007 and to expire on 11 April 2014. The parole period was determined to commence on 12 April 2014 and to expire on 11 April 2016.

10 The overall effective sentence accordingly was one of 11 years with a non-parole period of 9 years.

11 The applicant was born on 16 December 1964. He was accordingly 38 years of age at the date of the offences and 40 years at the time he stood for sentence. The applicant was not raised with his brother, the co-offender (who was three years younger than the applicant), but was said to have been given away by his mother at the age of five days and was raised by an aunt. He was made a ward of the State at the age of five years and lived in a State home for three years. He was then returned to his parents and was said to have had a good relationship with his father. He left home at the age of 15 years.

12 Upon leaving school, he entered into a variety of semi-skilled employment positions. A number of persons who were involved in his employment gave evidence at the sentencing hearing. There was evidence from those witnesses as to his good character and hard-working life. There was evidence that he was a good partner and father and that the offences were entirely out of character.

13 At the time of the offences, the applicant was said to be in a stable relationship of 20 years duration and was the father of three boys aged 14, 11 and 8 years. His partner gave evidence that she had forgiven him. She also stated that she suffered from Schaumann's disease, which is said to involve arthritis of the hip joints. That disease together with curvature of the spine rendered the applicant's partner unable to undertake heavy lifting to the point where she has not been able to carry shopping. Accordingly, it was contended, that she is reliant upon the applicant for assistance to a very large extent. The evidence also established that the middle child of the family has a mild range of intellectual disability.

14 A report from Dr. W. John Taylor, clinical forensic psychologist, dated 29 November 2004 (Exhibit 2) was tendered at the sentencing hearing. The applicant had expressed contrition and remorse to Mr. Taylor. Mr. Taylor stated in his report that the applicant's history indicated that he had a very dysfunctional family life during his formative years. He said that the applicant had expressed very considerable regret for his behaviour in committing the offences. The absence of previous convictions for sexual offences, Dr. Taylor suggested, meant that it was unlikely that he would commit further offences of that type and that he had very good prospects for rehabilitation. Specific factors identified by Dr. Taylor which he considered placed the applicant at a risk of re-offending were:- • Lack of insight.

• Immaturity. • Inadequate impulse control.

15 The applicant's criminal history commenced in 1979 in the Children's Court. The majority of his offences related to the illegal use of motor vehicles.

16 In 1984, the applicant served one period of imprisonment for the offence of break, enter and steal for which he received a non-parole period of six months duration.

17 Since that offence, his only other conviction was in 1990 for a mid-range driving offence. The applicant had no convictions for violence.

Ground 1: His Honour erred in failing to find special circumstances

18 Ms. Davenport, SC. for the applicant, stated that the main submission made on behalf of the applicant related to Ground 1. The sentencing judge had been invited to make a special circumstances finding on two bases:- (a) the delay in sentencing and its effect upon the applicant; and

19 This ground is related to Ground 2. In relation thereto, it was contended on the applicant's behalf that a finding of special circumstances was justified by reason of family hardship and the partial cumulation of the sentences.

20 The question of special circumstances was addressed at p.25 of the remarks on sentence. The relevant paragraph is as follows:- "I was also invited to consider whether there were special circumstances affecting Harrison in that, because this matter has been delayed from January 2002 until today, there being a delay in coming to Court and because of the tension, stress and depression Harrison has endured because of delay, there are special circumstances whereby I could order a longer period of supervision. I do not propose to consider these as special circumstances. There is nothing special about them."

21 It is apparent from the evidence given at the sentencing hearing that the issue of family hardship was a reference to the impact which imprisonment would have "upon his partner and his middle (12 year old) child (W/S [4.2])".

22 In his remarks on sentence, the sentencing judge described the circumstances of the applicant's partner in the following terms:- "… she had suffered from Sherman's (sic) Disease and she experiences severe arthritic pain in the hips, and a curvature of the spine causes shoulder pain, lumbar sacral pain as well as pain in the rib area. She is unable to perform any heavy lifting, to mow the lawn, to garden, or to hang up the washing. She therefore relies, she said, completely on her husband. She has problems even doing the shopping. She is a single mother of three children, in receipt of the Commonwealth benefit of $870 per fortnight. She described her husband as the main breadwinner of the family." (p.18)

23 In relation to the reference to "Sherman's Disease" in this passage, the Crown noted that this is probably Schaumann's Disease, being a condition where there is no tissue between the vertebra. The applicant's wife said that the disease had "now modified" but she still suffered the "after effects" (t.12.10).

24 Evidence on this aspect consisted of a very brief medical certificate from Dr. Loh (Exhibit 6) which stated that the applicant's wife suffered from back pain and was unsuited for heavy work.

25 The evidence also revealed that the middle child had learning difficulties falling within the mild range of intellectual disability. The high school he attended had placed him in the Support Unit of the school. This child and the other two sons were described in evidence as good sportsmen. The applicant was the only member of the family with a driver's licence to drive his children to their games.

26 The evidence in relation to the applicant's middle son included a School Counsellor's Summary Report, a letter from the boy's high school and an occupational therapy assessment report. Those reports confirm that he has a mild range of intellectual disability.

27 The applicant's partner gave evidence. She stated that she suffered from Schaumann's Disease from the age of 12 years and that it had caused her severe pain. The pain was said to be located in the shoulders, the ribs and the lower part of her back. She gave evidence as to the restrictions on her physical abilities and the impact it had on her performance of housework and other duties for which she formally relied heavily upon the applicant.

28 It was argued on this application that whilst the sentencing judge dealt with the issue of delay, he did not address the question of hardship in the context of the submission directed to the issue of special circumstances. The issue of hardship was considered by the sentencing judge but only in the context of a submission that hardship to the applicant's defacto wife and children constituted exceptional circumstances thereby attracting a sense of mercy in the sentencing determination. In the latter context, it was submitted, the test was a stringent one but that the issue of hardship remained relevant on the issue of special circumstances arising under s.44(2) of the Crimes (Sentencing Procedure) Act 1999. The submission in this regard was that the evidence, though not capable of satisfying "the very high barrier that is necessary in order to have a sentence diminished or lowered, other than what it should be at law, by reason of … very exceptional circumstances of hardship to others", should have been considered in the context of "special circumstances" but that the sentencing judge referred only to the issue of delay.

29 In this respect it was contended:- (a) The evidence established particular facts and matters that, together, were capable of supporting a special circumstances finding in terms of s.44(2) if the 1999 Act. (b) In particular, the facts and matters said to support a finding of special circumstances included the hardship from full-time custody resulting to:-

(i) the applicant's defacto wife (who suffers from a degree of physical infirmity and disability as discussed above); and

(ii) the applicant's three sons who would be deprived of their father's support, assistance and influence.

(c) It was also relevant that the applicant had spent most of his adult life as a citizen who contributed to society and whose only offences were of a comparatively minor nature committed in his younger years.

(d) The delay between the date of the offences and the date of sentencing and the effect that that had had upon the applicant (in terms of depression etc.).

30 The general principle in relation to hardship to members of an offender's family is that it is generally irrelevant and can only be taken into account in highly exceptional circumstances. The care of young children does not normally constitute an exceptional circumstance: Regina v. Edwards (1996) 90 A. Crim .R. 510 at 516.

31 There have been cases where significant disability and difficulties with a child have been held to constitute exceptional circumstances justifying a finding of special circumstances and a reduction in the non-parole period. The judgment of Howie, J. in Regina v. Bednarz [2000] NSWCCA 533 at [52] is such an example. There, the applicant's son, who was at the time 35 years of age, was seriously and permanently disabled. He was highly dependent on others for all activities of daily living and supervision and was incapable of independent living being extremely reliant upon the presence of his mother. He had both cognitive and physical impairments to a marked degree. The effect upon the applicant's son by separation from her was far more serious and of a different nature than normally attends upon a separation of a mother from children by her imprisonment. Howie, J. in that case stated that it was a relevant matter to be taken into account in determining the minimum period which the prisoner was required to serve in custody and during which her son would be denied the mother's care and assistance. Accordingly, it was a matter which gave rise to special circumstances that would justify a reduction in the minimum term under s.44 of the Crimes (Sentencing Procedure) Act 1999.

32 The Crown, in its written submissions, stated that it was far from clear that counsel had made it plain to the sentencing judge that family hardship was relied upon when considering special circumstances.

33 The Crown also observed that another matter of relevance not referred to in the context of the matter of special circumstances by counsel at sentence or in this appeal, was the applicant's prospects of rehabilitation. Senior counsel at the hearing of this appeal did, however, refer to the applicant's criminal history, the fact that he had been a law-abiding citizen for many years prior to the subject offences and that he had been a good employee and on one particular occasion had helped to save a young man from serious injury on a ferry.

34 The Crown noted that the encouragement of rehabilitation is a matter relevant to a finding of special circumstances: cf. Regina v. Grbin [2004] NSWCCA 220, [34].

35 The Crown also observed that, whilst there is no obligation upon a sentencing judge to state whether the family hardship, the partial cumulation of the sentences and/or the applicant's rehabilitative prospects constituted special circumstances, it would have been desirable had he done so, referring to what was said in Regina v. Simpson (2001) 53 NSWLR 704 at [72] to [88].

36 The transcript of 11 May 2005 records that a finding of special circumstances was sought on the grounds of delay and the effect it had had on the applicant (transcript, pp.6, 7) and as well the effect that imprisonment would have upon the applicant's wife and three children. In dealing with special circumstances at p.25 of the remarks on sentence, reference was made to the first of the two grounds (delay) with the sentencing judge concluding:- "… I do not propose to consider these as special circumstances. There is nothing special about them."

37 He did not make any reference to the second ground which was relied upon and to which I have referred above.

38 In these circumstances, there is a question as to whether the omission to expressly refer and consider the matters of hardship establishes appellable error in relation to the failure or refusal by the sentencing judge to make a finding of special circumstances.

39 In the event that such error is established, this Court would be required to form a positive opinion that, by reason thereof, "… some other sentence … is warranted in law and should have been passed": s.6(3) of the Criminal Appeal Act 1912; Regina v. Simpson (supra) at 720-721 per Spigelman, CJ.

40 The decision as to whether special circumstances exist in a particular case is first one of fact - to identify the circumstances, and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence: Simpson (supra) per Spigleman, CJ. at [73].

41 In relation to the first of these two matters, it is certainly arguable that there was a failure by the sentencing judge to identify the circumstances of hardship when considering the issue under s.44(2). However, notwithstanding the omission to refer to hardship as a relevant factor, I find it difficult in the circumstances of this matter to conclude that the issue had, in fact, escaped the sentencing judge's attention.

42 In the course of delivering a well structured and detailed analysis of the evidence, the sentencing judge had earlier referred to the details of the hardship claimed when considering the various factors relevant to the determination of the appropriate sentences (see remarks on sentences, pp.19 - 20). It is clear, therefore that, shortly before dealing with special circumstances, the sentencing judge had given his thorough attention to the facts said to support the existence of hardship. He can hardly be taken as having been unaware or not to have appreciated the extent or degree of hardship claimed when dealing with all issues that fell for consideration in terms of s.44(2) of the Crimes (Sentencing Procedure) Act 1999.

43 There is, in any event, a quite separate basis for rejecting this ground of appeal. It was incumbent upon the applicant to adduce evidence which was sufficient to establish that a lower proportionate relationship between the non-parole period and the head sentence than is provided for by s.44 of the Act was called for when determining the sentences. I have considered the evidence led as to hardship. I, with respect, agree with the assessment of the sentencing judge that the hardship of which the applicant's partner spoke "is heart-wrenching, but it seems to me not a degree of hardship which is out of the ordinary or uncommon …" (p.19).

44 In these circumstances, and given the well-known conditions required for appellate intervention where discretionary decision-making is involved, this is neither a case in which, in my opinion, the Court would conclude that there is appellable error nor, even if there were said to be error, that it could form a positive opinion that some other sentence is warranted in law and should have been passed.

45 I accordingly would dismiss this ground of appeal. Ground 2: His Honour erred in his accumulation of the sentences imposed in that he failed to allow in his total sentence sufficient time for the applicant to spend on parole

46 As noted earlier, a fixed term of imprisonment was imposed in respect of the first offence. In relation to the second offence, a non-parole period was imposed of a little over 77% of the head sentence. The effect of the accumulation of the sentences was to produce a non-parole period of 81.8% of the head sentence.

47 Ms. Davenport, SC. contended that in respect of the total sentence imposed of 11 years imprisonment with a non-parole period of nine years that the statutory ratio under s.44 of the Crimes (Sentencing Procedure) Act 1999 would have resulted in a non-parole period of eight years and three months. Senior counsel submitted that there was nothing in the remarks on sentence to indicate that by allowing the applicant to be released after serving 75% of his sentence that would lead to an inappropriately short period of imprisonment. It was also submitted that the more likely reason for the higher non-parole period was simply that it was due to a miscalculation in determining the non-parole period.

48 The Crown pointed to the fact that the sentence imposed in respect of the second offence departed from the normal statutory proportion, before accumulation, and that this was an indication that the sentencing judge did not intend to impose a non-parole period that was in conformity with the normal statutory proportion. The Crown further submitted that, given the circumstances of the applicant, two years on parole was sufficient.

49 In relation to this ground of appeal, I note the following matters:- • The sentencing judge acknowledged that, because the offences were committed before 1 February 2003, they were not subject to the new version of s.44 in the Crimes (Sentencing Procedure) Act 1999 . However, in sentencing the applicant, the judge gave effect to the current process under s.44 in that he set the non-parole period and then the period of parole. • The applicant's submissions acknowledge that, standing alone, the identification of this error would not give rise to an entitlement to be re-sentenced: Regina v. Cramp [2004] NSWCCA 264; Regina v. Smith [2005] NSWCCA 19. It was, however, submitted for the applicant, that this error was compounded by the sentencing judge failing to determine a non-parole period that was 75% of the total period. • In Regina v. Gill [2002] NSWCCA 93, Dunford, J. (with whom Carruthers, AJ. agreed) stated:- "12. There is no magic in the 75%. Section 44(2) requires that the non-parole period must not be less than three quarters of the term of the sentence unless there are special circumstances. It does not provide that in the absence of special circumstances it must not be any more than three quarters of the term of the sentence." • There is a long line of authority which emphasises that the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case indicate ought to be the minimum period of actual incarceration. In this matter, the facts of the offences reveal criminality of a very high order. The Crown has submitted that, having regard to the facts, no lesser non-parole period thennine years was appropriate, having regard, in particular, to the need for general deterrence and denunciation.

50 In some circumstances, the effect of accumulation of sentences may require adjustment of a single sentence to re-establish the statutory proportion for the actual total sentence: Simpson (supra) at [36] per Spigelman, CJ.

51 The high level of criminality involved in both offences is, in my opinion, a significant consideration in determining whether or not error has been established in failing to determine the non-parole period at 75% of the total period. In Regina v. Nikolovski [2005] NSWCCA 60, Hulme, J. (with whom Studdert, J. agreed) observed:- "9. In this case, although the failure of the sentencing judge to provide any reasons for fixing an effective non-parole period at more than 70% of the effective head sentence, is surprising, there are factors which would well have inspired his Honour to take the course he did. These include the very serious nature of the applicant's conduct towards his victim and the effect on her - matters which, in light of the applicant's history, more than justify the length of the non-parole period fixed …"

52 In Regina v. Parker [2003] NSWCCA 270, the effect of the sentences was that a non-parole period was imposed which bore a relationship of 77% to the term of the sentence. The error identified in that case was a failure to have regard to the effect of cumulation when considering the question of special circumstances. In that case, the offender relied upon authority to the effect that accumulation of sentences could amount to special circumstances: Regina v. Clissold [2002] NSWCCA 356. The Court in Parker, however, held that there was no error in the manner in which the sentencing judge had dealt with the matter.

53 I do not consider that error has been established by reason of any asserted failure by the sentencing judge to make a finding of special circumstances on this ground. It is clear from the remarks on sentence that the sentencing judge properly gave due weight to the criminality involved and was required to make such a finding (at p.34):- "Objectively, those offences are extremely serious. They are at the extreme end of criminal behaviour and the Parliament loudly proclaims their gravity by the penalties they attract …"

54 Moreover, his Honour applied his mind to the question of accumulation of the sentence, stating:- "… the question is how long on each offence; how long a total term to reflect adequately the level of criminality; how to balance the periods so that the sentences can be partly cumulative and partly concurrent." (p.41, see also p.42)

55 Whilst there is no express reference to a determination of the statutory ratio, the remarks on sentence do not, in my opinion, suggest that there was an intention in sentencing the applicant to impose a non-parole period that was in accordance with the normal statutory proportion.

56 I would dismiss this ground of appeal Ground 3: His Honour erred in failing to take account of the period spent in custody

57 In the remarks on sentence (at p.4.1), his Honour noted:- "I note that Harrison has been in custody from 7 August to today, 12 April 2005, and in addition has served two further days in custody … I take these periods served, short as they are, into consideration in coming to my final conclusion."

58 The references to "7 August" is a typographical error, or a slip, and obviously it was intended to refer to "7 April" 2005.

59 The applicant was originally charged on 15 March 2003. He was unable to meet the conditions of bail granted at the time until 18 March 2003. He went into custody on 7 April 2005 and was sentenced on 12 April 2005. It was submitted that the sentences should have been backdated to commence on 7 April 2005.

60 At the end of the remarks on sentence (p.44.3), the sentencing judge pronounced the details of the sentences and again referred to taking "into account the period already spent in custody".

61 The applicant in support of submissions made in relation to Ground 3, relied upon Regina v. McHugh (1985) 1 NSWLR 588 and Regina v. Deeble (CCA, unreported 19 September 1991).

62 Section 47(3) of the Crimes (Sentencing Procedure) Act 1999 requires pre-sentence custody in relation to an offence to which a sentence relates to be taken into account. See also s.24. The Crown relies upon the fact that the judge expressly said that he had done so and that s.47(3) does not oblige a judge to, in fact, backdate the sentence. A matter of importance in relation to pre-sentence custody is "that it be demonstrated that it has been taken into account": Derron v. Regina [2006] NSWCCA 73 at [9]. It is true that that can be achieved by reducing the sentence that would otherwise be imposed or by demonstrating it by reflecting it in the sentencing order.

63 I accept without hesitation and proceed upon the basis that the sentencing judge did, as he stated, take into account the period spent in custody. I do not, however, consider that this disposes of the point that has been raised. A sentence should, in my opinion, be expressed in terms which make plain to, amongst others, the offender in question that the period spent in custody has been taken into account and how it has been taken into account. In other words, it is not, in my opinion, sufficient to state that it has been taken into account but not to demonstrate where there is a short period of pre-sentence custody, how the period has been taken into account. In Deeble (supra), Badgery-Parker, J. (with whom Handley, JA. and Hunt, J. (as he then was) agreed) stated at p.2:- "His Honour expressed himself as taking that into account (pre-sentence custody), but did not exercise the option of backdating the sentence to 1 June 1990. It needs, I think, to be emphasised that, unless there is good reason to the contrary, it is always desirable that a sentencing judge should not only take into account pre-sentence custody in determining the sentence to be imposed but should backdate the sentence to the commencement of the pre-sentence custody. The reasons are several."

64 The reasons identified by Badgery-Parker, J. were:- "It secures clarity and leaves the prisoner concerned and any later court which comes to look at the matter in no doubt as to what has been done. Secondly, it is a means of ensuring that proper weight is attached to the pre-sentence custody, so that the prisoner has no doubt that he is being treated fairly. Thirdly, it allows the proper application of the statutory proportion between the minimum term and the additional prescribed prima facie by s.5 of the Sentencing Act."

65 Notwithstanding that the sentencing judge in Deeble stated that he had taken the pre-sentence custody into account in determining sentence, the Court of Appeal, in re-determining the sentence, nonetheless, fixed it as commencing on 1 June 1990. Similarly, in the present case, for the reasons expressed by Badgery-Parker, J., I consider that the sentences should have been backdated to commence on 7 April 2005. I consider that this Court should intervene in order to so provide.

66 The submissions made on behalf of the appellant essentially focused upon subjective factors. In this respect, reliance was placed upon the evidence which indicated that the applicant's conduct in relation to the offences was completely out of character and that the sentencing judge had accepted him as a loving partner, a caring father and a good worker and as somebody who had, on one occasion, demonstrated considerable heroism.

67 The applicant's submissions rely upon the fact that there was no express finding that in committing the offences the applicant did act "out of character". Reliance was also placed upon the report of Mr. Taylor which expressed a low likelihood of recidivism, but no finding was made in relation to the applicant's prospects of rehabilitation or the likelihood of re-offending as a mitigating factor: s.21A(3)(g) and (h) of the Crimes (Sentencing Procedure) Act 1999. It was contended that the sentencing judge's failure to assess these matters as matters of mitigation under s.21A resulted in the sentences that were manifestly excessive.

68 It is apparent from the remarks on sentence that his Honour accepted that the evidence established the applicant to be a loving partner, a caring father and a good worker. As to the failure to determine whether or not the offences were "out of character" and to make a finding as to whether or not the applicant was likely or not to re-offend and as to the applicant's prospects oF rehabilitation, the following matters are noted:- • There was no evidence from the applicant as to why he committed the offences, as he did not give evidence. In circumstances where an offender fails to provide such information to a sentencing judge, and there is no other evidence on that matter, a criticism that there was a failure to make a finding as to whether or not an offence was out of character can carry little weight. • It is accepted that, in principle, a sentencing judge should not, in his remarks on sentence, refer to possible circumstances of aggravation or of mitigation without proceeding to make a finding whether the circumstances have or have not been established: Regina v. Wickham [2004] NSWCCA 193 per Howie, J. and Regina v. Atonio [2005] NSWCCA 220 per James, J. at [2]. • Any failure, however, to make a finding in relation to whether or not the applicant was unlikely to re-offend is, in my opinion, of little consequence, given:- (a) the express reference in the remarks on sentence to the opinion of the psychologist, that the likelihood that the applicant would re-offend was low but that he observed that the applicant had had some difficulty in relation to impulse control on some occasions; (b) that the psychologist had also commented that the applicant had ineffective methods of restraining impulses, co-ordinating defences, or resolving conflicts; (c) the psychologist's observation that the applicant was a markedly passive person likely to be quite easily led and was not insightful; (d) The administration of a number of psychological and personality tests, produced results recorded in Exhibit 2, which were such that the emerging personality profile was somewhat unreliable; (f) whilst actuarial analysis indicated quite a low likelihood of recidivism and that Mr. Taylor considered there were very good prospects for rehabilitation, he also identified that factors which placed the applicant at risk of re-offending were:- (i) lack of insight; (ii) immaturity;

69 In the circumstances of the evidence, I do not consider that the sentencing judge was required to reach a finding that the applicant was unlikely to re-offend, especially in circumstances where the cause of his offending was left largely unexplained.

70 In summary, the evidence as to the likelihood of recidivism and the prospects of rehabilitation contain conflicting elements. In those circumstances, I do not consider that it has been established that the sentencing judge either misunderstood the evidence or failed to make findings which he ought to have made.

71 The Crown, in its submissions, relied upon a schedule of cases said to be illustrative of the fact that no lesser sentence was warranted. In respect of the offence under s.61JA(1) (aggravated sexual assault in company), in particular in this respect, reference was made to the sentences in Regina v. Hoang [2003] NSWCCA 380 and Regina v. Aslett [2006] NSWCCA 48. The maximum penalty for an offence under that section was life imprisonment.

72 I do not consider that the failure by the sentencing judge to consider the matters referred to above in mitigation under s.21A resulted in sentences that were manifestly excessive.

73 I do not consider that the evidence in relation to the issues concerning the prospects of rehabilitation or the likelihood of re-offending was sufficiently unequivocal to have required the sentencing judge to have made findings favourable to the applicant in respect of those matters.

75 I would propose that the following orders be made:-

(a) That the applicant be granted leave to appeal. (b) That the appeal be allowed, so far as backdating the sentence is concerned and consequential orders as follows:- (i) Count 1: The applicant be re-sentenced to a fixed term of imprisonment for three years to commence on 7 April 2005 and to expire on 6 April 2008. (ii) Count 2: The applicant be re-sentenced to a non-parole period of seven years to commence on 7 April 2007 and to expire on 6 April 2014 and an additional term of two years commencing on 7 April 2014 and expiring on 6 April 2016. (c) The earliest date upon which the applicant will be eligible for release on parole will be 7 April 2014.

22/08/2006 - Removal of complainants' names - Paragraph(s) 6

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