MH v REGINA

Judgment 1CAMPBELL JA: I have had the advantage of reading the draft judgment of RS Hulme J. I find it unnecessary to express an opinion about the matters dealt with in [36]-[39] and [51]-[53] of his Honour's reasons. 2I have some reservations about [43]-[44]. Those reservations arise from a sentencing judge sometimes having some advantages over an appellate court, that are not necessarily exhausted by the making of findings of primary facts. In Warren v Coombes (1979) 142 CLR 531 in the plurality statement of principle at 551, Gibbs ACJ, Jacobs and Murphy JJ said it was "in general" - not always - that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. That statement of principle also recognised the need for the appellate court to "give respect and weight to the conclusion of the trial judge" . Their Honours went on to say "but, once having reached its own conclusion, will not shrink from giving effect to it"- but reaching their own conclusion happens only after giving respect and weight to the trial judge. Some of the various areas of a trial judge's advantage are mentioned in Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240 at [150]-[154]. 3Subject to those remarks, I agree with his Honour's reasons and with the orders he proposes. FILLIN * MERGEFORMAT 4RS HULME J: This Applicant for leave to appeal pleaded guilty to 9 charges and was sentenced by Hock DCJ on 14 May 2010. The charges, the section of the Crimes Act constituting the offences, the maximum terms of imprisonment prescribed and, where a standard non-parole period has also been prescribed, that period may be summarised as follows. 1 Sexual intercourse with a child under 10 - s 66A - 25 years - SNPP 15 years; 2 Aggravated sexual intercourse with a child between 10 and 14 - s 66C(2) - 20 years; 3 Aggravated sexual intercourse with a child between 10 and 14 - s 66C(2) - 20 years; 4 Aggravated indecent assault - s 61M(1) - 7 years - SNPP 5 years; 5 Aggravated sexual intercourse with a child between 10 and 14 - s 66C(2) - 20 years; 6 Aggravated sexual intercourse with a child between 10 and 14 - s 66C(2) - 20 years; 7 Aggravated sexual assault - s 61J(1) - 20 years - SNPP 10 years; 8 Aggravated indecent assault - s 61M(1) - 7 years - SNPP 5 years; 9 Aggravated sexual assault - s 61J(1) - 20 years - SNPP 10 years. 5The Applicant had been arrested on 9 November 2007. Before he appeared before Hock DCJ he had been sentenced by Woods ADCJ but that sentence was the subject of a successful appeal on grounds that have no present relevance. 6The complainants were step-daughters of the Applicant who had married their mother in about 1997. The offences, the subject of counts 1 to 6, involved "J" and occurred between September 2005 and November 2007 when "J" was nearly 10 to just over 12. Those involving "B", counts 7 to 9, all occurred between February and May 2007 when she was aged between 15 and 15 and 3 months. The evidence identifying the circumstances of each offence consisted solely of one paragraph in a Statement of Fact. In some cases the paragraph was very brief. There was no criticism of her Honour's account of these circumstances and the following summary is largely taken from her remarks. Count 1 7Shortly before the complainant's 10 th birthday her mother was away for 2 weeks and the children of the household including the complainant were left in the Applicant's care. At some stage he called the complainant to the bathroom, there he removed her pants, rubbed her vagina with his fingers and then inserted his fingers into her anus. 8Her Honour found that this offence was aggravated by being committed in the complainant's home and in consequence of the Applicant abusing a position of trust vis--vis the complainant. Her Honour characterised the offence as falling in the mid-range of objective seriousness, observing that "the insertion of fingers (plural) into the complainant's anus when she was nine years old as a matter of commonsense would cause pain to her and is obviously degrading". The sentence imposed for this offence included a non-parole period of 9 years commencing on 11 November 2012 and a balance of term of 3 years commencing on 11 November 2021. Count 2 9When the complainant was aged 10 and at home, the Applicant moved the complainant to a part of the kitchen which was out of sight of other children. He said to her, "you know that some girls touch themselves" to which the complainant replied, "Well, I don't". He then put his hands down the complainant's pants and placed his fingers into her anus. He lifted her top and started to kiss her breasts. The complainant started to cry and the Applicant told her to "go and get freshened up". 10Her Honour found that this offence was aggravated by being committed in the complainant's home and by the age of the complainant, observing that the younger the child, the more serious the offence. Her Honour imposed a sentence of 8 years imprisonment from 11 November 2008. Count 3 11When the complainant was 11, late one evening the Applicant woke her up, took her to his bedroom and forced her to perform fellatio upon him. 12Her Honour found the same aggravating circumstances as she had in the case of count 2. She imposed a sentence of 8 years imprisonment from 11 November 2009. Count 4 13After the act described in count 3, the Applicant sucked the complainant's breasts. Her Honour found that this offence was aggravated by the Applicant going to the complainant's bedroom to wake her, that the offence was committed in the complainant's home and that the complainant was only 11 whereas the definition of the offence encompassed children up to 14. Her Honour characterised the offence as falling in the mid-range of objective gravity and imposed a non-parole period of 2 years from 11 November 2007 and a balance of term of 8 months from 11 November 2009. Count 5 14When the complainant was 11 and she, her mother and the Applicant were away from their home but preparing for church, they realised they had left a computer cord at home. The Applicant and the complainant went to obtain the cord. The complainant ran into the house, the Applicant followed and told her to go into his bedroom where she lay on the bed. He told her to kneel on the ground and placed his penis in her mouth and would seem to have ejaculated while it was there. 15Her Honour found the same aggravating circumstances as she had in the case of count 2. She imposed a sentence of 8 years imprisonment from 11 November 2010. Count 6 16Some months after the offence in count 5, the complainant and the Applicant went to a church store to get some supplies. After they entered, the Applicant took the complainant to the rear where they could not be seen and made her perform fellatio. The complainant was told to put her hand under the Applicant's penis to catch his ejaculate. 17Her Honour found that this offence was aggravated by the age of the child, 11 or 12. She imposed a sentence of 8 years imprisonment from 11 November 2011. Count 7 18On an occasion when "B" had taken the day off school and her mother and siblings were away, the Applicant approached "B" while she was in the dining room, pushed her onto the table and placed his penis in her vagina. He ejaculated on her and told her to have a shower. 19Her Honour found that this offence was aggravated by reason of the complainant being under 16 and also by reason of her being under the Applicant's authority. Her Honour added that she had taken into account that the offence was committed in the complainant's home and noted that the offence occurred whilst the complainant was absent from school due to illness. Her Honour characterised the offence as falling in the mid-range of objective gravity noting that both counsel had so submitted. She imposed a sentence including a non-parole period of 6 years commencing on 11 November 2015 and a balance of term of 2 years commencing on 2021. Count 8 20"B" attended a church store with the Applicant. While there she entered a cubicle at the rear to go to the toilet. The Applicant unlocked the door and entered the cubicle. He lifted her shirt and touched her on the breast. "B" ran from the toilet with the Applicant squeezing her arms and breasts causing pain. 21Her Honour found that this offence was aggravated by reason of the complainant being under 16 and also by reason of her being under the Applicant's authority. She characterised the offence as falling below the mid-range of objective seriousness but not significantly so and imposed a sentence including a non-parole period of 12 months commencing on 11 November 2016 and a balance of term of 4 months commencing on 11 November 2017. Count 9 22On an evening when her mother was away the Applicant entered "B's" bedroom, woke her up, put his penis into her vagina and had intercourse. He then ejaculated on her and told her to go and have a shower. 23Her Honour found the same aggravating circumstances as she had in the case of count 7 though also observing that the Applicant had entered the complainant's bedroom while she was asleep and woken her to satisfy his own sexual urges. Again noting that both counsel had so submitted, her Honour characterised the offence as falling in the mid-range of objective gravity. She imposed a sentence including a non-parole period of 3 years commencing on 11 November 2019 and a balance of term of 5 years commencing on 2022. This sentence reflected a finding of special circumstances based on the accumulation of sentences. 24Disregarding for the moment their concurrency, the total of the non-parole periods imposed by her Honour was 53 years. The effective sentence imposed was of 20 years including a non-parole period of 15 years. 25In arriving at the sentences imposed her Honour noted that the Applicant had pleaded guilty at the first available opportunity and that she had allowed a discount of 25% on that account. She recorded that she had not set a non-parole period for the offences where a standard non-parole period had not been prescribed as there was no point in doing so. 26At the time of sentence the Applicant was aged 43. He had a criminal record but his last conviction was in 1986 and her Honour recorded that the gap of 20 years entitled him to some leniency, albeit recognising that good character has less weight in matters of child sexual assault. She also recorded that the Applicant had suffered from depression since age 15, had been on and off medication since then and that he suffered from medical conditions including degeneration of vertebrae causing reduction in the use of the left arm and hand that were likely to make his time in custody more onerous. She recorded that the Applicant was then on limited association and observed that the Applicant might well remain on protection for much of his sentence. She said that she took into account evidence he had given as to his then conditions of incarceration and the likelihood that those conditions might well continue for at least some part of his sentence. 27The evidence that the Applicant had given as to the conditions of his incarceration was that he was in conditions of limited association, confined to his cell for 22 hours a day, allowed into a courtyard of the same size for the remaining 2 hours and that there was no work, no education and no counselling in these circumstances. 28Her Honour also observed that the Applicant's prospects of rehabilitation appeared to be reasonable. She said that she had decided not to impose the standard non-parole period for any of the offences because of the Applicant's early plea, his past and likely future conditions of incarceration, his expressions of remorse and prospects of rehabilitation. 29As ultimately pursued, the grounds of appeal were:- (i) Her Honour failed to consider the principle of totality in the sentences she imposed upon the Applicant; (ii) The aggregate sentence and non-parole period imposed were manifestly excessive; (iii) Her Honour erred in her approach to and characterization of the offences subject to the standard non-parole period(s); (iv) Her Honour erred in finding that the offences were aggravated by being committed in the complainants' home. 30The third of these was the subject of a grant of leave during the hearing of the appeal. In subsequent written submissions application was made to add the fourth ground, an application that the Crown did not oppose and which, for reasons that will appear, the Court should grant. 31Given the terms of the grounds, it will be convenient to consider them out of the order in which they were raised. Ground 1 Her Honour failed to consider the principle of totality in the sentences she imposed upon the Applicant; 32Although her Honour did not in terms refer to the principle of totality in her remarks, she is so experienced a judge that one would not readily conclude that she overlooked the principle. In fact the degree of concurrency in the sentences imposed and the reduction from the aggregate of 53 years to which I have referred to 15 years is only explicable upon the basis that her Honour did apply the principle. 33There is no substance in this ground. It fails. Ground 4 Her Honour erred in finding that the offences were aggravated by being committed in the complainants' home. 34The Crown conceded this ground of appeal but submitted that her Honour's error had no significant influence on the sentence imposed. The concession was rightly made. Although Section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 provides as one of the aggravating factors to be taken into account of sentence that "the offence was committed in the home of the victim or any other person", it is established that the provision does not operate to aggravate and offence committed by someone who is lawfully in the home at the time - Ingham v R [2011] NSWCCA 88 at [111] and the cases there cited. 35However, the frequency with which her Honour mentioned as an aggravating feature the fact that an offence was committed in the complainant's home makes it impossible to accept that the error had no effect on the sentences for offences where her Honour found the feature to exist. Thus, even if for no other reason, this Court is required to consider de novo the sentences her Honour imposed in respect of all counts other than counts 6 and 8. Ground 3 Her Honour erred in her approach to and characterization of the offences subject to the standard non-parole period(s); 36In the course of its supplementary submissions, the Crown drew attention to some statements in prior decisions of this Court that I have difficulty in accepting. One was of Tobias JA in R v Hibberd [2009] NSWCCA20; (2009) 194 A Crim R 1 at [21] that:- In my respectful view the time has come for this court to depart from any prima facie assumption, let alone general proposition, that digital sexual intercourse is to be regarded as generally less serious than penile sexual intercourse. 37The matter was not argued. Nor was the Court provided with anything like a comprehensive review of prior authorities, and there are a number. Accordingly, this is not the occasion to attempt a detailed review of the topic. However, as a judgment on a matter of fact, my view is that digital sexual intercourse is generally less serious than penile, particularly penile vaginal, intercourse. Inherently penile vaginal intercourse carries risks or greater risks of venereal disease and pregnancy compared with digital vaginal intercourse. To my mind, and I venture to say in the view of most of the community, penile vaginal intercourse is also a greater affront both physically and mentally to an unwilling victim in consequence of the greater subjugation of her body and intrusion of privacy that such intercourse generally involves. 38Other forms of forced penile intercourse have their own attributes and incidents, often closely associated with other circumstances of the assault and the relativity might not be so clear. Nevertheless, in these cases also I would generally regard penile intercourse as more serious than digital. 39In saying what I have in the two immediately preceding paragraphs, I do not, of course, purport to lay down any proposition of law. Nor do I mean to suggest that all cases of penile intercourse are worse than all cases of digital intercourse. Merely do I wish to ensure that Tobias JA's remarks do not pass without dissent and to indicate my views on a topic that does arise in this case, albeit a topic subsidiary to "the evaluation of circumstances of the offence(s) in their entirety" - see Baumer v The Queen (1988) 166 CLR 51 at 57; Ibbs v The Queen (1987) 163 CLR 447 at 452. 40A second statement on which the Crown relied was that of Price J, with whom Hodgson JA and Fullerton J agreed, in R v Daley [2010] NSWCCA 223. At [48] his Honour remarked:- In R v Hibberd (2009) 194 A Crim R 1 I said at [56] that the duration of the offence was a relevant consideration in the assessment of the seriousness of an offence contrary to s 61I Crimes Act. I wish to make it clear that the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased. 41I agree with his Honour that a continuation of an offence for a longer period will tend to add to the seriousness of the offending. I also agree that an offence involving intercourse is committed however short that intercourse may be. However if his Honour intended to suggest that the shortness of the intercourse is not a factor that argues for a lesser rather than a greater penalty, I disagree. One situation is but the converse of the other and if a longer period tends to add to the seriousness of offending, it follows as the night the day that a shorter period argues for regarding the offending as less serious than it would have been if continued for longer. 42The recent decision of the High Court in Muldrock v The Queen [2011] HCA 39 at [60] confirms that the circumstance that an offence is of short duration is a relevant factor. 43A third was the statement of Spigelman CJ in Mulato v R [2006] NSWCCA 282 at [37]:- Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This court is very slow to determine such matters for itself or to set aside the judgment made by first instance judge exercising a broadly based discretion. 44These remarks have been accepted in many cases since. However, I confess to having difficulty in accepting them. Once the relevant primary facts are found, this Court is in just as good a position as a sentencing judge to make a judgment as to where, on a scale of objective seriousness, an offence falls. It does not seem to me that the circumstances are relevantly any different from those considered in Warren v Coombes (1979) 142 CLR 531 in connection with findings of negligence. See also the discussion by Campbell JA in R v Ford [2009] NSWCCA 306 at [73] et seq. 45This also was a matter that was not argued. In any event, it is unnecessary to decide it. In the case of the sentences imposed for all counts other than counts 6 and 8, Hock DCJ's assessment as to objective gravity was affected by her Honour's error in regarding as aggravating the fact that the offences were committed in the complainants' home. Offences 6 and 8, of course, did not occur in the complainants' home. 46I should perhaps add that I do not see in her Honour's approach to the topic of objective seriousness any other factor adverse to the interest of the Applicant and which the recent decision of the High Court in Muldrock v The Queen [2011] HCA 39 held to be erroneous. Ground 2 The aggregate sentence and non-parole period imposed were manifestly excessive 47Because of the errors to which reference has already been made, it is strictly unnecessary for the Court to consider whether the sentences on counts 1-5, 7 and 9 were manifestly excessive. Technically the issue that arises on each of those 7 counts is whether, in the terms of s 6(3) of the Criminal Appeal Act 1912 "some other sentence, whether more or less severe is warranted in law and should have been passed" and, if so, what that sentence should be. Of course, in examining that issue, questions of manifest excess may incidentally arise. In the circumstances, it will be convenient to consider the 9 sentences seriatim. In the course of that exercise, it will be appropriate to reflect also on some of her Honour's comments. 48Before turning to those individual sentences, it is however appropriate to note one passage in her Honour's remarks that is affected by error. Her Honour said:- In summary over a period of two years the offender subjected these two children to these acts of sexual abuse. The one Victim Impact Statement tendered sets out the severe effect that his conduct had on the older victim. I find the emotional harm caused to her was substantial. In respect of both children it is likely that they will suffer long term psychological and emotional harm. 49In fact the Victim Impact Statement was by "J". Furthermore, while the period of offending encompassed by the charge was from September 2005 to November 2007, and whatever suspicions one may have, the period covered by the charges involving "B" was only 3 months. 50Three further matters should be the subject of remark. Firstly, I have sought to approach the task of determining what sentences should be, or should have been imposed in accordance with the decision of the High Court in Muldrock v The Queen. 51Secondly, while I must do as best I can, I find it virtually impossible to give proper weight to both the maximum penalties and the standard non-parole periods enacted by Parliament for the offences the subject of counts 1, 4, 7, 8 and 9. 52As has been said, the maximum penalty for offences 4 and 8 is 7 years and the standard non-parole period is 5 years. In accordance with long standing sentencing practice the maximum penalty is reserved for cases falling within a "worst" case category - see Ibbs v The Queen (1987) 163 CLR 447 at 451; Veen v The Queen (1987-1988) 164 CLR 465 at 478. It is also a longstanding sentencing practice to fix a non-parole period except in rare cases at no more than 75% of the total sentence imposed. 75% of 7 years is 5 years, only 3 months more than the period Parliament has said should be imposed for a sentence in the "middle of the range of objective seriousness". I have previously described the relativity between the two provisions as "absurd", a description from which I do not resile. 53The inconsistency is not quite as bad in the case of offence 1 where the maximum penalty is 25 years and the standard non-parole period 15 years or offences 7 and 9 where the maximum penalty is 20 years and the standard non-parole periods 10 years, particularly when one bears in mind that the severity of sentences is not simply proportional to length but increases disproportionately as the length increases. Nevertheless, the inconsistency still exists. Thus for a "worst" case of an offence under s 66A one could expect a non-parole period of 18 years, not much more than the standard non-parole period of 15 years for an offence in the "middle of the range of objective seriousness". 54Thirdly, in Smith v R [2011] NSWCCA 163 I had occasion to consider a number of offences similar to some of those here and in the course of doing so to research and refer to the Judicial Commission statistics and a number of prior decisions. Where relevant, I have relied on the information to be gleaned from the Smith judgment but it is not necessary that I repeat all of that information here. Of course, there are differences between the two cases and I have sought to ensure that I have made appropriate allowances in that regard. The major differences lie, firstly, in the fact that at the time of most of the offences committed by Mr Smith, he was not in a position of trust and even for the offences where he was, his position was somewhat different from the Applicant's and, secondly, that Mr Smith received no discount for pleading guilty. Count 1 55The paragraph of the Statement of Facts dealing with this count contained no indication of how long the offence lasted, whether such of the Applicant's fingers as were inserted were inserted as a group or whether the complainant suffered injury or pain. Notwithstanding that the onus of showing matters adverse to the Applicant's interests was on the Crown, no issue was taken with her Honour's findings and the Court should accordingly proceed on the basis of them. Nevertheless, the situation remains that there is no evidence that the intercourse took more a period to be measured in seconds. 56Applied to the maximum penalty and the standard non-parole period, the 25% discount allowed by her Honour would result in periods of 18 and 11 years respectively. When compared with these figures, the sentence imposed by her Honour of 12 years including a non-parole period of 9 years is very high. Notwithstanding the abuse by the Applicant of his position of trust, the absence of any evidence that the offence was prolonged or caused any physical injury and the fact that the penetration was digital, leads to the view that the offence was far removed from both a worst case and one in the mid-point of objective seriousness. In these circumstances the sentence was not only affected by her Honour's error in regarding its occurrence in the complainant's home as an aggravating factor but it was also manifestly excessive. Count 2 57This offence was not much different from the first offence although it would seem to have had a more serious impact on the complainant at the time than did the first offence and was committed in the face of an indication of distaste on her part. The complainant was older and the maximum sentence provided for is 20 years rather than 25. 58Applied to the maximum penalty of 20 years, the 25% discount allowed by her Honour would result in a maximum sentence of 15 years. Applying the common ratio of 3 to 1, the non-parole portion of such a sentence would be 11 years. Hock DCJ's sentence of 8 years (fixed term) is again very heavy and in my view manifestly excessive. Far, far worse cases of offences under the section can be envisaged. Count 3 59The remarks I have made when considering count 2 as to the relativity of the maximum sentence prescribed and the sentence imposed, apply to this count also. On the other hand, and putting aside such possible accompanying features as pain, duration, threats and additional violence, I regard forced fellatio imposed on a girl of 11 as in its inherent nature significantly worse than digital penetration of her anus. That said, I am of the view that this sentence also is manifestly excessive. Count 4 60The sentence of 2 years and 8 months is more than one third of the maximum 7 years penalty for this offence. If one reduced that maximum to take account of the guilty plea, one would arrive at a figure of 5 years. Conversely, if one grossed up the 2 years 8 months by the discount, one would arrive at a figure of just over 3 years and 6 months, more than half the maximum penalty. A similar comparison between the 2 years non-parole period imposed and the standard non-parole period of 5 years leads to a similar conclusion. 61The offence was the sucking of the complainant's breasts for an unknown period. When one has regard to the comparisons made in the immediately preceding paragraph, the far more serious conduct that can amount to an offence under the section and notwithstanding the abuse of trust involved, I am unable to regard the sentence imposed for count 4 as within the legitimate exercise of Hock DCJ's sentencing discretion. Count 5 Like count 3, this count related to an offence of fellatio and some of the remarks made when considering count 3 have application here also. However, the offence was made significantly worse than it otherwise would have been by the Applicant ejaculating in the complainant's mouth. That said, the sentence of 8 years (fixed term) is still too close to the 20 years maximum, discounted for the Applicant's plea and further reduced to reflect an appropriate non-parole period to have been within the legitimate exercise of her Honour's discretion. I regard this offence as similar in gravity to those the subject of counts 7 and 9. Count 6 62I would regard the seriousness of this offence as falling somewhere between offences 3 and 5. By parity of reasoning, again the sentence imposed was manifestly excessive. Counts 7 and 9 63Constituted by penile-vaginal intercourse and ejaculation, albeit after withdrawal, these offences (and that the subject of count 5) were the most serious of those committed by the Applicant. The sentences imposed were influenced by her Honour's erroneous approach to there having been committed in the complainant's home but I am not persuaded that, within the terms of s 6(3) of the Crimes (Sentencing Procedure) Act 1999 , a "sentence ... less severe is warranted in law and should have been imposed". 64That last remark is subject to two qualifications. It may be necessary to vary the commencement date of the sentences to reflect the success the challenges to other sentences and in the case of the sentence imposed for count 9 it may also be appropriate to vary the relativity of the non-parole and balance of term, depending on the view taken as to the appropriate total effective sentence. Count 8 65Remarks made whilst considering count 3 have some application here. On the other hand, the additional disregard of the complainant's privacy and persistence in the face of her seeking to end the assault makes this offence worse than it otherwise would have been. I am unpersuaded that there was any error affecting this sentence adversely to the Applicant and in any event, I do not regard it as one where some lesser sentence should have been imposed. Again it may be appropriate to vary the commencement date. 66In light of the above, including Hock DCJ's remarks concerning the Applicant's subjective circumstances, and subject to possible variation in the case of the last sentence to be served, the non-parole or fixed terms that the Applicant should serve are as follows:- (i) (digital/anal intercourse) 3 years (ii) (digital/anal intercourse) 3 years (iii) (fellatio) 5 years (iv) (sucking of breasts) 1 year (v) (fellatio including ejaculation) 6 years (vi) (fellatio including ejaculation) 5 years (vii) (penile/vaginal intercourse) 6 years (viii) (touching of breasts with persistence) 1 year (ix) (penile/vaginal intercourse) 6 years 67(Simply as a matter of convenient reference, in the above table I have abbreviated the description of each offence.) 68In the case of the offences the subject of standard non-parole periods, s 54B of the Crimes (Sentencing Procedure) Act 1999 requires that a non-parole be set. In the case of the other offences it is more convenient to set a fixed term. 69The total of the above periods is 36 years. Obviously the principle of totality requires that the sentences not simply be aggregated and the question that then arises is what should be the total effective sentence. Given the extent of the reduction compared with the sentences imposed by Hock DCJ, there should be some reduction in the effective sentence. On the other hand, one must recognise that there were two victims who suffered at the Applicant's hands and each offence increased his criminality. A number of the offences individually merited non-parole periods or fixed terms of, or approximating, 6 years. 70In my view, an appropriate total sentence is one of 12 years in custody and an additional term of 3 years. I appreciate that the effect of such a sentence is that the balance of term is 20% of the total sentence rather than the more usual 25% but, given her Honour's findings as to the Applicant's prospects of rehabilitation, I am not persuaded that he needs longer on conditional liberty. Furthermore, his criminality was such that the 12 years I propose should not be reduced. Because of the accumulation of sentences I would find special circumstances and adjust the sentence last to be served so that it contains a balance of term of 3 years. 71One further matter should be mentioned. Hock DCJ and, according to the Department of Corrective Services' custodial record for the Applicant, Woods ADCJ before her, fixed the Applicant's sentences to start on 11 November 2007. However the Applicant gave evidence that he was arrested on 9 November 2007. The Particulars of Trial provided to this Court confirm that date and that the Applicant has been in custody ever since. The custodial record shows that the Applicant went into the custody of the Corrective Services Department on 10 November 2007, a fact that is not obviously inconsistent with him having been arrested the previous day. There is nothing in the material before this Court to explain the choices of 11 November 2007 and in the circumstances it is appropriate to fix 9 November 2007 as the date from which the first of the Applicant's sentences should commence. 72To give effect to these conclusions at which I have arrived, I propose the following orders:-