A submission was made by Mr Hancock, [the appellant's] counsel, that I ought not take into account in considering the factual circumstances and the objective seriousness of this offence because consent is not an element of this offence. But I think that the factual circumstances of the offence, particularly given the range of offences which can be covered by this offence can be taken into account. For example this offence could cover a situation where two teenagers close in age had consensual sexual intercourse. And I think that that situation is to be distinguished from the situation here which was that [TD] was fourteen years old, [the appellant] was, at that stage, twenty-nine years old, she was affected by alcohol and she was not a willing participant in the act which occurred."
73 The appellant contends that by taking TD's lack of consent into account, the Court was in effect sentencing him for an offence against s 61J, namely, aggravated sexual intercourse without consent, which carried with it a maximum penalty of 20 years imprisonment.
74 In De Simoni, Gibbs J stated at 389:
"… the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."
75 In R v Fajka [2004] NSWCCA 166, Howie J (Hulme and Simpson JJ agreeing), at [24], expressed considerable doubt as to whether a sentencing judge was entitled to take into account an allegation of a serious criminal offence that the Crown had not charged and which was denied by the offender, when sentencing the offender for an offence of a completely different nature to that alleged. The offence in that case was the offence of affray contrary to s 93C of the Crimes Act, which carried a maximum penalty of 5 years imprisonment. The affray had occurred at a tavern and there was an allegation that the accused's brother had obtained the security surveillance tape of the melee. The sentencing judge referred to this in the course of his Remarks on Sentence, expressing a conclusion that the offender had acted jointly with his brother in removing the surveillance tape in an attempt to destroy evidence useful to the prosecution. Such conduct constituted an offence which carried a maximum penalty of 10 years imprisonment. Howie J concluded, at [24], that if his Honour was using that as an aggravating feature of the offence, then he considered that the principle in De Simoni, or indeed, principles of common fairness, would be offended.
76 The Crown submits that her Honour did not breach the principles in De Simoni. It points out that the offence of aggravated sexual intercourse without consent contains four elements: sexual intercourse; without the consent of the complainant; the applicant knowing there was no consent; and in circumstances of aggravation. The Crown drew attention to the fact that her Honour did not make any finding that the appellant was aware of the absence of consent and, that absent such a finding, the appellant could not be exposed to this offence. It was submitted that this case was unlike R v Bakewell (Court of Criminal Appeal, Gleeson CJ, McInerney and Studdert JJ, 27 June 1996, unreported), where all the elements of the more serious offence had been raised.
77 In my opinion, her Honour has not offended the principle stated in De Simoni. In the first place, she was conscious that consent was not an element of the offence. Indeed, that had been a matter of submission to her Honour. Rather, it is apparent that her Honour considered the question of whether or not TD was a willing participant was relevant, having regard to the wide range of offences that may be covered by the section. It is also apparent that her Honour's reference to TD not being a "willing participant" was made so as to gauge the relative seriousness of the offence in this case, as against other offences which might be charged under the section.
78 The second ground related to the manner in which her Honour dealt with accumulation. Her Honour imposed, in respect of the s 66C offence, a non-parole period of 3 years to commence on 23 August 2006 and to expire on 22 August 2009, with a balance of term of 1 year to expire on 22 August 2010. Her Honour imposed in respect of the s 61K(a) offence a non-parole period of 4 years 6 months commencing on 23 August 2007, expiring on 22 February 2012, with a balance of term of 1 year 6 months to expire on 22 August 2013.
79 Her Honour declined to find special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Her Honour's reasons for finding that there were no special circumstances was that the appellant had not taken responsibility for his offences, so that it was difficult to see how his offending conduct could be addressed by rehabilitation, when he did not have any insight into the issues.
80 The effect of her Honour's sentencing was that each individual sentence reflected the statutory ratio, but that the effect of accumulation was to impose an overall non-parole period of 78.5 per cent, thus exceeding the normal statutory proportion of 75 per cent.
81 This Court has consistently held that the accumulation of sentences may result in a finding of special circumstances. It is sufficient to refer to Dunn v R [2007] NSWCCA 312, where Hoeben J (Handley AJA and Smart AJ agreeing) observed, at [40], that a finding of special circumstances was only required where the proportion of the non-parole period as against the total term of the sentence was to be less than 3/4. His Honour added:
"Nevertheless general sentencing principles suggest that where there is a departure from the statutory ratio there should be some reason provided."
82 His Honour then observed, at [41], that it has been held that where sentences are cumulative, so as to produce a non-parole period which is in excess of the statutory ratio, that of itself may amount to special circumstances.
83 In that case, the effect of accumulation was to produce a non-parole period in excess of 80 per cent of the head sentence. In circumstances where the trial judge made no reference to this in his Remarks on Sentence, the Court was of the opinion that it was not clear that his Honour appreciated that this was the effect of the sentences he proposed to impose. In the circumstances, having regard to the facts of that case and in the absence of an explanation as to why the non-parole period had been increased beyond the statutory ratio, the Court considered it an appropriate case in which to intervene.
84 Almost identical remarks can be made in this case. Her Honour maintained the statutory proportion as between non-parole period and the total term of the sentence in respect of each offence and appears to have overlooked the effect of the accumulation that she determined was appropriate. If the statutory proportion was maintained in respect of the total effective sentence, then the non-parole period would be 5 years 3 months. In my opinion, the appellant should have the benefit of that reduction. Accordingly, the orders which I propose are as follows: