IS v R

4The total effective sentence was 11 years, 8 months and 29 days (8 February 2008 to 5 November 2019, of which the non-parole period was 9 years, 2 months and 28 days (8 February 2008 to 5 May 2017). 5There are two grounds of appeal. Firstly, in relation to count 4, that the sentencing judge erred in failing to find special circumstances and in failing to set a parole period in excess of one-third of the non-parole period, and, secondly, that the sentencing judge erred in setting a total sentence where the effective balance of the sentence did not exceed one-third of the overall non-parole period, notwithstanding a finding of special circumstances. 6It is conceded by counsel for the applicant that the criminality involved in the offences was serious and there is no issue raised concerning the sentencing judge's assessment of the objective seriousness and the subjective matters relevant in the exercise of his Honour's discretion. The only complaint made concerning the sentences imposed is that the total effective non-parole period is 78.7% of the total sentence, not 75%, resulting in a non-parole period that is longer by 6 months than would have applied if the ratio stipulated to which s 44 of the Crimes (Sentencing Procedure) Act 1999 had been adopted. Facts 7For the purposes of the appeal, the facts are not controversial and the following account is taken largely from the learned sentencing judge's reasons for sentence. The victim of the offences was the applicant's natural daughter, who was born on 4 July 1988. The first offence occurred some time in 1997 when the applicant was about 43 years of age. 8The offences came to the attention of police somewhat unusually. On 21 March 2007, in the family home, the victim complained to her mother and one of her brothers in the presence of the applicant that he had sexually abused her and used both his hands and his tongue to do so, although she did not mention that he had also used his penis. The applicant's wife (the victim's mother) told the offender to leave the family home, which he did. The applicant sought some assistance, perhaps with the idea of being reconciled with his family and was told that he would have to go to the police, which he eventually did on 19 April 2007, and made admissions to inappropriate sexual conduct towards his daughter. Police sought then to interview the victim but she was initially unwilling either to make a statement or for charges to be preferred. Eventually she relented and made a number of statements to police about which the applicant was interviewed for a second time. He made certain further admissions but denied the detail and severity of various incidents, as well as their timing. 9The indictment reflected the offences disclosed by the victim which the applicant continued to deny, though he maintained the admissions previously made. The sentencing judge concluded that the jury accepted the evidence of the victim in preference to the statements made by the applicant in his interviews with police. 10The first count occurred when the victim was aged 8 or 9 years old. She was sitting on the couch in the lounge room in the family home when the applicant approached her and inserted his penis at least into the outer labia of her vagina and ejaculated. Count 2, also occurring in 1997, involved the applicant's touching the outer labia of the victim's vagina before inserting his fingers whilst the victim was taking a bath. Sometime between 1 January 1997 and 3 July 1998 the victim was taking a shower when the applicant entered the shower cubicle and deliberately touched her body with his penis (count 3). In respect of count 4, the offence of persistent sexual intercourse with a child, the sentencing judge found that the jury accepted that this involved at least three events of aggravated sexual intercourse without consent. The victim was then between 10 and 11 years old and occurred when her mother and brothers were absent from the family home. On each occasion the applicant approached the victim in her bed and performed cunnilingus. The offence in count 8 occurred on 27 September 2002 when the victim was 14 years old. The applicant stripped her naked, dragged her to the parental bedroom, threw her on the bed and rubbed his penis against her buttocks. Count 7 (to which the applicant pleaded guilty) concerned an occasion between 1 January and 3 July 2004, when the victim was aged 15 years. This involved the applicant drawing the victim's attention to an act of simulated masturbation. Relevant findings 11The sentencing judge found that the applicant showed very little remorse, if any, since he continued to maintain after conviction that the victim told lies about the extent of his sexual misconduct, claiming that the version that he gave to the police was correct. His Honour also found that a "very significant aggravating factor", to which s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 refers, was that the emotional harm caused by the offences was substantial, involving significant post traumatic stress disorder with extensive deliberate self harm and marked impulsivity manifested by binge drinking and eating, reckless and dangerous driving and spending sprees, continuing emotional difficulties in dealing with her brothers and mother and keeping and maintaining friendships. 12The applicant's personal background was problematical. His mother's cousin enticed him and his brother to commit indecent acts on each other or themselves when the applicant was 10 or 11 years old and, when he was 13 years old, this person sexually assaulted the applicant, including on one occasion, forced sodomy. The applicant was disowned by his own parents and required to leave home when he was 15 years of age, their further relations significantly deteriorating. After living a somewhat unsettled life the applicant married in May 1982 and, from that time, was in constant employment and supporting his family. Aside from minor offences as a teenager, the applicant had no criminal record. The sentencing judge accepted that the likelihood of the applicant's reoffending is low. Determination of the non-parole period 13After discussing the facts and noting statistical information about sentencing, his Honour said - "[36] I have determined that by partially accumulating the sentences to be passed ... for all six offences ... the head sentence will be eleven years and nine months imprisonment and the effective non-parole period will be nine years and three months ... [to] commence on 8 February 2008. ... [38] In so far as it is necessary to find special circumstances to depart from the statutory nexus between the head sentence and the non-parole period, the main reason for breaking the statutory nexus is the offender's age and the fact that this is his first sentence of imprisonment for any offence whatsoever and even though he is not a young man, the experience of being in goal, even as a very mature man, can be extremely frightening and distressing." 14In respect, however, of counts 2, 4 and 8, his Honour said that he did not find special circumstances. Although, on the face of it, this appears to be inconsistent with the passage set out above, it seems to me that this merely expressed a mode of calculation and that his Honour's intention was to find special circumstances applicable to the total effective sentence, the adjustment made in some periods rendering further adjustments unnecessary. The ultimate non-parole period, however, far from being reduced from that which would have resulted from the application of the statutory ratio, was increased. It seems clear, with respect, that his Honour was unaware of this affect of his calculations and that the ultimate result was inadvertent. Submissions on appeal 15As has been mentioned, counsel for the applicant did not submit that, accumulation aside, there were present special circumstances which justified an increase of the statutory ratio but sought only for this ratio to be applied in the applicant's case. During argument on the appeal, counsel for the Crown accepted that the sentencing judge's arithmetic was in error and his Honour had inadvertently arrived at a result which increased rather than reduced the indicative non-parole period. Counsel submitted that, nevertheless, this Court would not interfere, contending that no lesser sentence is warranted in law, vide s 6(3) of the Criminal Appeal Act 1912. Counsel for the Crown submitted that the reason for taking this course is that otherwise the non-parole period would be unjustifiably lenient. Consideration 16It is not necessary to analyse the facts in this case in any detail. Counsel for the Crown conceded that the overall sentence was well within the sentencing judge's discretion. That being so, although there is no doubt that a non-parole period can be imposed that is longer than would have been the case if the statutory ratio were applied, there should be good reasons for taking this course. The sentencing judge did not indicate any such reasons since, unsurprisingly, he did not intend to bring about this result. Nor do the facts suggest any reason for departing from the statutory ratio in respect of the overall effective sentence. 17In my view this Court should follow the approach in R v Attard [2004] NSWCCA 376 where Buddin J (the other judges agreeing) said - "[21] For present purposes it is necessary to refer only to the individual sentences imposed in respect of counts 1 and 3. In each case the sentencing judge imposed a non-parole period which was in accordance with the normal statutory proportion, that is 75% of the head sentence. However, when the later sentence was accumulated upon the earlier sentence, the consequence was that the overall non-parole period produced was almost 80% of the head sentence. Although there is no prohibition against the setting of a non-parole period which is more than 75% of the head sentence, there is no reason to believe that that is the result which his Honour intended in the present case. Indeed the indications are to the contrary. Moreover, this Court has intervened on a number of occasions in which the accumulation of sentences has produced an outcome similar to that which has occurred in the present case. See R v Simpson (1992) 61 A Crim R 58; R v Close (1993) 31 NSWLR 742; R v Bolamatu [2002] NSWCCA 454; R v LWP [2003] NSWCCA 215; R v Keen [2004] NSWCCA 86; R v Jammeh [2004] NSWCCA 327." 18The totality of criminality does not suggest that an effective non-parole period of 8 years and 9 months is unjustifiably lenient. 19The simplest way of making the necessary adjustment is to reduce the non-parole period for the sentence in respect of count 4 to seven years with the consequence that the non-parole period in respect of that offence will expire on 5 November 2016, the balance of term to commence on 6 November 2016 and the overall sentence expire on 5 June 2019. 20I propose the following orders: (1) Leave to appeal granted. (2) Appeal against sentence on count 4 allowed. (3) Sentence on count 4 quashed and in lieu thereof the appellant is sentenced to a non-parole period of imprisonment of 7 years from 6 November 2009 to expire on 5 November 2016, and a balance of term of 3 years to expire on 5 November 2019. (4) Appeal otherwise dismissed. (5) The appellant will be eligible for release on parole on 6 November 2016. 21HALL J : I agree with the reasons and orders proposed by Adams J.