… There is always a tension between the purposes sought to be achieved by the imposition of a punishment for serious crime. The youth of the offenders and the importance of their rehabilitation necessarily plays a large part in the sentencing process but does not permit the court to disregard other important elements of punishment - where appropriate, personal deterrence of the offender; general deterrence, that is to say the need to dissuade others from similar conduct; and public vindication of the law. The sentences imposed must be such as will demonstrate with the utmost clarity that the community will not tolerate violence of this kind."
85 There were other issues. On the men's appeal various other issues loomed larger. [R v Howard & Ors1992) 29 NSWLR 242 at 258]. This Court (Gleeson CJ, Sheller JA and Lee AJ), after dealing with these acknowledged that the youth of the appellants was a matter calling for special care and that it was given close and proper consideration by Badgery-Parker J. They too had anxiously considered it. That case was decided in November 1992
86 It followed on the decision of this Court in Pham and Ly (1991) 55 A Crim R 128. The Court was there dealing with the case of a Griffith remand for 12 months for robbery-related offences in company against victims who were in the privacy of their own home. Lee CJ at CL (with whom Gleeson CJ and Hunt J agreed) said:
"It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft [1975] VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment, ie, coercive action is fundamental to correctional treatment in our society."
87 Reference was made to the earlier statement by Lee CJ at CL in R v Nichol (1991) 57 A Crim R 391 at 395:
"True it is however that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided … However, there is a point at which the seriousness of the crime committed by a man of 19, even though, a young man is of such a nature, is so great, that that principle must in the public interest, give way."
88 I have reservations about stating the principle in that way. First, the courts have always emphasised the need to have regard to the objective gravity of the offence. As a result a young offender may receive a heavy sentence of imprisonment for a very grave crime or crimes. However, in the case of a young offender, punishment is not determined simply by reference to the objective facts however grave they may be. A balance has to be achieved. Secondly, if in the passage quoted Lee CJ at CL intended to suggest that the youth of the offender effectively plays no part in the sentencing exercise where serious crime is involved, I would respectfully disagree. Such an approach is not consistent with what Hunt CJ at CL said in R v Townsend & Cooper (unrep. CCA 14 February 1995) and R v Hearne [2001] NSWCCA 37, para 39.
89 While special care is taken where the offender is young and deep consideration given to the rehabilitation of that offender and the interests of the community in that rehabilitation, these matters are not allowed to outweigh the gravity of the offence. There are the further important aspects of denunciation of the applicant's conduct, deterrence, punishment, retribution and vindication of the law. A proper balance has to be achieved in the light of the circumstances of each case. From his remarks, the judge attempted to achieve that balance. That is not an easy task. The applicant contends that the judge did not achieve that balance and gave insufficient weight to the youth of the applicant.
90 The applicant contended that he had been punished twice for essentially the same act, namely, placing his hand over the nose and mouth of the deceased. It was that act which led to the smothering of the deceased and the injuries she received to her face. It was the injuries to the deceased's face and neck which constituted the actual bodily harm. The judge accepted that the injuries to the neck were consistent with an attempt by her to remove the object inhibiting her breathing. He was satisfied that the applicant deliberately placed his hand over her mouth so that during intercourse she would not be able to attract the attention of other persons in the house. The judge found that the act causing death was committed in the course of the applicant carrying out two sexual assault offences.
91 It is not in doubt that essentially the same act may be involved in the commission of two offences, that is, the aggravated sexual assault or assaults and manslaughter and that different aspects of that act may be important in respect of the different offences. It is possible to have an assault occasioning actual bodily harm to the deceased's face which does not lead to her death. In the present case, however, it was the placing of the hand over the nose and mouth of the deceased (including keeping it there) which constituted the circumstances of aggravation and led to the aggravated sexual assault and also constituted the act causing death.
92 The judge did not embark upon subtle and unreal distinctions. The principal gravamen of counts 2 and 3 was the sexual assault. The act occasioning actual bodily harm was, in each case, a circumstance of aggravation, which was pleaded and admitted. The placing and keeping of the hand over the nose and mouth, while preventing the applicant calling for help, did not add a great deal to the rape (sexual assault) which was occurring. The same act was of critical importance in the manslaughter. While I accept as a matter of practice, if not as a rule of law, that a person should not be twice punished for what is substantially the same act (The Queen v Hoar (1981) 148 CLR 32 at 38) that is not what happened in the present case. The overlap was relatively small and is offset by the overlapping of the sentences. Of course, where the bodily injury relied on was the anal injury, no question arises of the same act constituting both the circumstance of aggravation and the act causing death.
93 I do not wish to add anything to what Beazley JA has written on the applicant's reliance on statistics. I do not regard any of the individual sentences as manifestly excessive. Accordingly, I would reject Appeal Ground 1, namely, that the sentences in relation to each offence were manifestly excessive. Each of the offences was a very serious one, warranting the sentence imposed. As to the sexual assault, the applicant took advantage of a young lady who was sleeping and had had too much to drink at a party at which he also was a guest. He was aware of her condition and that either she was not consenting or he was reckless in that regard. As to the manslaughter she died of asphyxiation when he put his hand across her nose and mouth.
94 Appeal Ground 2 alleges that the overall total sentence and non-parole period were manifestly excessive. All three sentences were towards the top of the range for the offences in question. While three serious offences were committed they were all part of one brief episode lasting some minutes. The applicant never intended to kill the deceased. Placing and keeping his hand over her mouth and nose was unlawful and dangerous. Allowance has to be made when considering the totality of the sentences that the act causing death also constituted the circumstance of aggravation on one of the sexual assault counts.
95 After placing the primary emphasis upon the objective gravity of the offences, but taking into account the applicant's pleas of guilty, his attempts to revive the deceased including the help he sought, the circumstances of the evening and his youth, the sentences in totality are manifestly excessive. The correct length of the sentences in totality is 12½ years. I would commence the sentence of 11 years for manslaughter as from 7 June 2001.
96 Having regard primarily to the youth of the offender I propose to consider the contention that the non-parole period was manifestly excessive in conjunction with Appeal Ground 3,namely that the judge erred in failing to find special circumstances.
97 The judge took the view that the relationship between the total sentence and the non-parole period prescribed by s.44 of the Crimes (Sentencing Procedure) Act was sufficient to provide the applicant with an adequate parole period. On the law as it was generally understood prior to R v Simpson [2001] NSWCCA 534 this approach was unobjectionable. Simpson, a decision of a five judge Bench, considered s.44 of the Crimes (Sentencing Procedure) Act 1999, the successor of s.5 of the Sentencing Act 1989 and the question of special circumstances in some depth and tended to re-focus the approach that had previously been taken to the matter of special circumstances.
98 In Simpson at para 45 Spigelman CJ, with whom Mason P, Grove J and Newman AJ agreed, stated that while Hunt CJ at CL in Phelan (1993) 66 A Crim R 446 at 449-450 expressly adopted the perspective of a longer than usual period of supervision on parole when dealing with the issue of special circumstances under s.5 of the Sentencing Act 1989 he was identifying the most common rather than an exclusive perspective. Again, as Spigelman CJ pointed out in Simpson, supra at para 49, in R v GDR (1994) 35 NSWLR 376, this Court constituted by five judges, indicated that while the perspective involved in approaching the determination of special circumstances from the point of view of a longer than usual non-parole period is a permissible one, it does not constitute an exclusive perspective.
99 In Simpson at para 57 Spigelman CJ said:
"The reasoning in Power [(1973) 131 CLR 623] indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. By enacting a provision that only works one way - requiring specific justification for a lower proportion but not for a higher proportion - Parliament has, in my opinion, reinforced this as primary perspective. This has the effect that the scope of the considerations relevant to the determination of 'special circumstances' must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole.
The proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of considerations of rehabilitation has long since been rejected."
100 In Simpson at para 65 the Chief Justice stated (citations omitted):
"In addition to the need to identify and articulate 'special circumstances', in order to overcome the statutory constraint on the exercise of the discretion to fix a non-parole period, the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence - operates to confine the proper range for the exercise of the discretion. "
101 At para 68 the Chief Justice continued:
"By s44(2) the non-parole period is not to be less than three quarters of the head sentence 'unless the court decides there are special circumstances for it being less'. This qualificatory clause requires a 'decision' by application of the composite requirement that the 'circumstances' be sufficiently 'special' for the statutory proportion to be reduced.
102 At para 69 the Chief Justice rejected a restrictive approach to the scope of considerations relevant to the determination by a court of what constitutes special circumstances in a particular case.
103 The question of the non-parole period should be determined primarily from the perspective of the length of the minimum period required of actual incarceration. That period is in the range of eight years six months to nine years six months. Any period less than eight years six months would not adequately reflect the gravity of the offences. Any period more than nine years six months would be excessive. The applicant's youth, the fact that he had never been in custody prior to these offences and the fact that when he is eligible to be released he will have spent most of his adult life in prison point in favour of a finding of special circumstances. However, a major allowance cannot be made on this account otherwise a non-parole period would be set which does not adequately reflect the gravity of these three very serious offences. In the circumstances of the present case the correct non-parole period on a totality basis is 9 years. It follows that I would not disturb the non-parole period of 7½ years for manslaughter.
104 I propose the following orders: