Consideration
38 I do not accept the proposition that general deterrence has little application to the facts of this matter. In AJB the applicant had no criminal record, there was evidence from psychiatrists that he was suffering from chronic symptoms of depression at the time of the offending and when his offending was brought to light, he had sought treatment and was regarded by the doctors as completely reformed. In those circumstances, it was not appropriate to make an example of him to others.
39 In PH v R, where this issue was discussed by Howie J, the applicant was 73 years of age at the time he was sentenced and had serious health issues. Even in that circumstance general deterrence had some part to play. Howie J, with whom Grove and Hulme JJ agreed, said at [32]:
"In AJB I indicated that, at least in relation to that applicant, general deterrence was of less significance than it might otherwise be because of the period between the offending and the imposition of sentence and because of his reform over that period. I believe that this will generally be the case where, as in both AJB and the present case, a considerable period of time has passed between the offending and the sentencing and where over that period there have been no further offences. This is not to imply that general deterrence is of no significance in such cases. Potential offenders should understand that the Courts will treat these types of offences harshly notwithstanding that extensive delay occurs before the offender is punished. But, as was recognized in Holyoak , the need for general deterrence must be considered in light of the effect of the sentence of imprisonment upon the offender and the implication of that sentence upon his prospects for release."
40 It seems to me that apart from the fact of delay, the applicant in these proceedings lacks the matters to which Howie J referred in PH v R and that general deterrence does have a part to play in the sentencing process. This is particularly so where the period of the applicant's offending spans some 10 to 13 years and involved two victims. Moreover, the reasons put forward for his offending, being a combination of sexual needs and revenge by proxy, support the proposition that general deterrence remained important in this case.
41 The primary proposition put forward on behalf of the applicant is undoubtedly correct. It has now been accepted by this Court in a number of cases that in relation to offences which occurred during 1970's and 1980's, with the absence of any statutory restriction on the length of a non-parole period, a sentencing practice had arisen of setting the non-parole periods at somewhere between one third and one half of the term of the sentence (MJL v R [2007] NSWCCA 261; Featherstone v R [2008] NSWCCA 71; CPW v R [2009] NSWCCA 105; GRD v R [2009] NSWCCA 149 and PH v R [2009] NSWCCA 161). All these cases have referred with approval to the passages in AJB v R relied upon by the applicant.
42 It is clear that a matter which his Honour should have taken into account when sentencing the applicant for these offences which occurred between 1972 and 1985 was this practice. That practice should have been reflected in the sentences which he passed. In saying that, I do not wish to be critical of his Honour since neither the relevant cases nor this practice was brought to his attention.
43 This, however, does not end the matter. It is not simply a process of adjusting the sentences passed by his Honour to reflect that practice. Other considerations need to be kept in mind.
44 During the course of argument, the Court pointed out that in a number of respects the sentences passed by his Honour significantly favoured the applicant.
45 There was a clear failure on the part of his Honour to apply Pearce v The Queen [1998] 194 CLR 610 at 624 where McHugh, Hayne and Callinan JJ said:
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
46 In Cahyadi v R (2007) 168 A Crim R 41 Howie J restated the factors informing considerations of concurrency and cumulation as follows:
"(27) In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: Can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
47 In his remarks on sentence, his Honour provided no reason why all six sentences were to be served concurrently. On the facts of this case it is difficult to see any rational justification for such an approach. On the contrary, the seriousness of the conduct in offences (1) and (2) and their separation in point of time demanded some level of cumulation. Similarly, the involvement of a separate victim in offences (5) and (6) also required some cumulation.
48 The approach adopted by his Honour significantly favoured the applicant and involved considerable leniency.
49 In response to those matters, the applicant submitted that this leniency would be off set by the application of the principle of totality. I have difficulty in understanding this submission. Implicit in it is the proposition that by partially accumulating some of the sentences, the end result would in some fashion be excessive or unfair. I do not agree. A proper application of the principles of proportionality and totality to the offending conduct in this case, even allowing for the lower maximum sentences applying during the 1970's and 1980's, would have inevitably resulted in sentences greater than those passed by his Honour.
50 The question before the Court is whether it should intervene to adjust his Honour's sentences to reduce the non-parole period so as to reflect the sentencing practice in the 1970's and 1980's in circumstances where the sentence actually passed already significantly favours the applicant. In my opinion, the Court should not so intervene.
51 Section 6(3) of the Criminal Appeal Act 1912 provides:
"(3) On an appeal under s 5(1) against a sentence, the Court, if it is of the opinion that some other sentence whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal."
52 Assistance is provided in the interpretation of that section by R v Simpson (2001) 53 NSWLR 704:
"[79] Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process". That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that "some other sentence … is warranted in law and should have been passed". Unless such an opinion is formed, the essential pre-condition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefore" is not satisfied."
53 Further elucidation of s 6(3) is provided in Baxter v R [2007] NSWCCA 237 where Spigelman CJ said:
"[17] The words "warranted in law" in s6(3) do not refer only to the situation in which a sentence actually passed was outside the permissible range. That would focus attention only on the time of the original sentence and the reasoning process of the sentencing judge. For the reasons I have identified above, the dual reference to the present tense reinforces the express reference to the "opinion" of the Court of Criminal Appeal to emphasise that it is the appellate court that is making a judgment as to whether or not the sentence actually passed was "warranted in law". The subsection is not directed to answering the question as to whether or not the particular sentence was warranted in law from the perspective of the original sentencing judge alone.
[18] In these circumstances the phrase "warranted in law" should be understood as a reference to the entire body of legal rules that inform the exercise of a sentencing discretion, i.e. both statutory requirements and sentencing principles developed at common law.