R v Giardina

The offender's evidence

1. The offender relied on an inter-state transfer report dated 12 September 2018 which explained his transfer from the Queensland correctional centre to a NSW correctional centre to be closer to his family. At that time the offender had completed approximately 10 years of his life sentence, was classified as a low risk and was noted to have accepted full responsibility for his offence. He was therefore recommended for inter-state transfer (Exhibit 1).
2. Exhibit 2 were two testimonials supporting his interstate transfer from Mr J Lawson and Ms M Speering, both prison chaplains. Exhibit 3 was a number of documents relating to the offender's request to be placed in protective custody after receiving threats in custody from an outlaw motorcycle gang as a result of being charged with the index offences.
3. Exhibit 4 was an email from Ms Z Hitchcock, Senior Forensic Biologist of the Forensic and Analytical Science Service dated 17 April 2020 confirming that the links between the crime sample (DNA) and the offender were reported to NSW Police on 30 October 2009. This established that the DNA sample was provided by the offender in Queensland on 8 July 2008 but was never matched or linked to the crime scene DNA sample from 1988. A DNA match was made following the offender's transfer to NSW custody in December 2019.

The Crown submissions

1. The Crown submitted that the offending in Count 1, which carried a maximum sentence of 10 years imprisonment was serious offending and objectively fell within the mid-range for an offence pursuant to s111, because the offence occurred at night by entry into the premises with an intention to steal and was therefore typical of the base elements required for the offence. There were no notable matters of aggravation.
2. In assessing the objective seriousness of Count 2, an offence of sexual intercourse without consent, the Crown submitted that the court would take into the nature of the act, namely, penile-vaginal sexual intercourse in which the offender ejaculated. There was evidence at trial that the accused's sperm was located in the victim's vagina which led to a compelling inference that the victim had been exposed to a risk of disease and pregnancy. The SAIK test recorded that the victim was tested for sexually transmitted diseases however no results were produced in respect of those tests. Further, the offender took advantage of the victim's confusion as to who was in her room.
3. The Crown referred to the evidence at trial that the offender had smirked following the offence and had stated "I'm the one who fucked you" indicating that he was conceitedly pleased with his offending conduct. That state of mind should be taken into account in assessing the objective seriousness of the offence in Count 2.
4. With respect to Count 2 it was an aggravating factor that the offence occurred in the home of the victim pursuant to section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (CSPA). This was not an aggravating factor in respect of Count 1 because it was an element of the offence however the Crown relied on Bennett v R (2014) NSWCCA 197 to submit that it could be regarded as an aggravating factor, but not a greatly aggravating factor, in respect of Count 1.
5. The Crown submitted that there should be some accumulation in sentence for the two offences. It was a deliberate act by the offender to enter the premises, combined with the opportunistic sexual offending in Count 2. The Crown submitted there should some degree of accumulation, applying the principle of totality.
6. The Crown referred to the thirty-four years delay between the offending conduct and the offender's conviction following trial. It was conceded that the NSW Police had received a link to the accused's DNA in 2009 following DNA testing in Queensland in 2008. The Crown relied on R v Spiers [2008] NSWCCA 107 at [37] and [38] as authority for the proposition that it is only delay which occurs following the intervention of the authorities which may be taken into account and not any suspense or uncertainty on the part of the offender as to whether his committing of the offence will ever be detected.
7. The Crown also relied on R v Hall [2017] NSWCCA 313 where the court referred to the consequences of delay and the approach to sentencing for historical offences as set out in R v MJR [2002] 54 NSWLR 368 at 384.
8. The Crown submitted that the court would take into account the offender's progress in his rehabilitation as well as the purposes of sentencing as set out in section 3A of the CSPA including general deterrence, denunciation, and making the offender accountable for his serious criminal offending.
9. The Crown acknowledged that the offender would suffer some hardship in custody, relying on Clinton v R [2009] NSWCCA 276 at [24] to [29].
10. The Crown rehearsed the purposes of sentencing set out in section 3A of the CSPA. The Crown submitted that the VIS here demonstrated the significant impact of this criminal offending on the victim which extended over many years. That impact, as set out in the VIS was not just restricted to the trauma of the sexual assault in Count 2 but also the manner in which the Police investigation was dismissive of her complaint, which affected her for many years. The Crown conceded that the impact of the Police conduct could not be sheeted home to the offender and therefore was to be taken into account in a limited sense only.
11. The Crown had not prepared written submissions on sentence and did not make any submissions as to the facts to be derived from the Jury verdicts upon which the offender was to be sentenced. I therefore directed that the Crown file and serve a document setting out the facts which it submitted derived from the verdict within seven days.

The offender's submissions

1. Counsel for the offender relied on a thorough written outline of submissions noting that the offender is to be sentenced in accordance with sentencing patterns and practices at the time the offences were committed, regardless of the reasons for any delay between the commission of the offences and the sentencing of the offender, relying on R v MJR [2002] NSWCCA 129. Further, the court was not to take into account increases in the legislated penalties made after the dates of the offending, nor the increasing seriousness attached to offences of the like character, relying on R v McGrath [2010] NSWCCA 48 at [35]-[37].
2. Counsel referred to the judgment of Sully J in MJR to submit that in sentencing for historical offences, the courts must endeavour to set a sentence appropriate to both the statutory maximum and the sentencing patterns at the time of the offending, and may have recourse to statistical information about sentences imposed by the courts around the relevant time if such information is available. Counsel provided examples of sentencing for offences pursuant to section 61D of the Crimes Act 1900, namely R v Kovacs NSWCCA, (unreported 29 March 1989) and Radenkovic v R (1990) 170 CLR 623.
3. Counsel referred to RL v R [2015] NSWCCA 106 where the court at [8] referred to the technical difficulties that arise in sentencing for historical offences as follows: "The technical difficulties are also relevant. The last principle requires, in effect, that an offender not be sentenced more harshly than would have occurred had the sentencing and the offending been roughly contemporaneous. One result of that principle is that the court must have regard to the relationship accepted at that time between the minimum term (or non-parole period) and the full term of the sentence. On the other hand, the Court does not sentence in accordance with the law as then in place, but imposes a sentence under the current law, namely the CSPA".
4. Here, a technical difficulty arose in that section 44 of the CSPA, regarding the setting of the non-parole period, was amended in 2002 and only applies to sentencing for offences after 1 February 2002.
5. The offender was 20 years old at the time of the offending and had no criminal record. It was submitted the facts to be derived from the jury verdict is that the offender entered the residence of the victim through a partially open bedroom window. It was approximately 9.30pm and the bedroom was in darkness. The victim was lying on her bed naked at the time and when the offender climbed through the window she asked, "Is that you Glenn?" to which the offender replied "yes". The offender then had sexual intercourse with the victim. A short time later the victim turned on her bedroom light and realised that the person she had had sex with was not Glenn and confronted the offender saying "Who the hell are you?". The offender immediately left the premises via the same bedroom window.
6. It was submitted that Count 1 on the indictment was informed by the allegation that whilst inside the dwelling the offender stole $100 together with credit cards and a further $500 from a drawer in the bedroom. It was submitted the verdict on Count 1 makes it clear that the jury did not find that the offender entered the premises with the intention of committing a sexual assault.
7. Counsel also submitted that there was no evidence that the offender knew the premises were occupied at the time. It was 9.30pm during the week before Christmas and the premises were in darkness. There was no evidence of pre-planning nor any evidence of any circumstances of aggravation. Given that the offending in Counts 1 and 2 are in inextricably linked as a temporal sequence of events, there should be a large amount of concurrence in the sentences imposed.
8. Counsel submitted that the offending in Count 2 was spontaneous and opportunistic. There was no evidence that the offender was aware that the room was occupied when he entered it and there was no coercion, threat or violence on the offender's part during or after the sexual assault. Once his identity was discovered the offender immediately fled through the window by which he had entered the premises. It was submitted the gravity of the offending fell within the low to mid-range of objective seriousness for an offence pursuant to section 61D(1) of the Crimes Act 1900.
9. Counsel noted the history of the offender's sentence for murder in 2011 in Queensland. The non-parole period was 15 years which will expire on 7 July 2023. Counsel relied on the history of his DNA testing in Queensland and the reporting of that testing to the authorities in NSW in 2009.
10. On the question of the delay, the offender relied on R v EGC [2005] NSWCCA 392 where the court considered some factors relevant to delay the court may take into account on sentence, including proven prospects of rehabilitation and that the prosecution of a stale offence warrants a finding of special circumstances.
11. Counsel acknowledged that an aggravating factor was that the offence in Count 2 occurred in the home of the victim pursuant to section 21A(2)(eb) of the CSPA. It was submitted that Counts 1 and 2 were inextricably linked as a temporal sequence of events and therefore the court would exercise it's discretion to moderate this factor of aggregation in terms of the overall offending.
12. In her oral submissions Counsel for the offender confirmed the evidence in Exhibit 4 that the offenders DNA sample had been reported to NSW authorities on 13 October 2009.
13. Counsel referred to the following mitigating factors pursuant to section 21A(3) of the CSPA. First, it was submitted that the injury or harm was not substantial in that the VIS established that a large part of the victim's emotional trauma arose from the manner in which police were dismissive of her complaint and was therefore not relevant to the sentencing of the offender. Secondly, it was submitted the offending was neither organised or planned, and the offender had no previous convictions and had good prospects of rehabilitation.
14. It was submitted the court could not take into account any of the subsequent criminal history of the offender but rather the fact that he had made a genuine attempt to rehabilitate himself so as to re-enter the community. It was submitted that the offender had been a model prisoner who had undertaken education courses in custody, was employable with good prospects of employment upon his release and had the support of his family. Further, he had committed no other offences of sexual assault in the period of 1988 to 2008.
15. Finally, the court would take into account the fact that the COVID-19 pandemic has made the conditions of custody more onerous for the whole of the prison population.
16. The offender was given the opportunity to respond to the Crown's submission on the facts to be derived from the jury verdict.

The Facts to be derived from the jury's verdicts.

1. The Crown submitted the following facts may be derived from the verdicts:- 1. JS was born in 1962. 2. Later in life, when JS married, she took the name of her husband to become JS. 3. When JS was 20 years old, she moved, from country New South Wales, to Sydney. 4. In the late 1988, JS moved into a two-bedroom ground floor unit in [L], where she lived with her older sister, BW. In the unit, JS had her own bedroom. Her bedroom was located between the unit's kitchen and laundry. (BW had her own bedroom, which was located at the end of a corridor, at the back of the unit.) JS had a bed and other furniture in her bedroom. Above the head of the bed, was a sliding window. 5. In December 1988, JS was employed at a pork wholesale business at [A]. Through that employment, she became friends with a man called "Glenn". On occasions, there were times when Glenn gave JS a lift (in his car) to and from their place of work. As a result of their friendship, JS and Glenn had kissed on one occasion. Nothing of a more serious or intimate nature had occurred between them. JS, however, was "open" to being in a relationship with Glenn. During their friendship, Glenn had visited JS's home on one occasion. 6. On the afternoon/evening of Wednesday 21 December 1988, JS was at her home in [L]. BW was also there. BW asked JS to go to the "raffles" at a registered club in the area (this being something they often did). On this evening, JS decided to stay home and BW went out to a club for the "raffles". JS stayed at home, listened to music, and drank some wine (probably three glasses). JS then went to bed, at about 8.30pm. 7. When JS went to bed, a light in the kitchen was "on". Her bedroom light was turned "off". It was dark in her bedroom. When JS went to bed, the sliding window in her bedroom was open about 10-20cm. When JS went to bed, she was not wearing any clothes. She used a dressing gown to cover herself when she slept. 8. After going to sleep, JS heard the venetian blinds on her bedroom window "rustling". She thought it was one of her cats coming into the unit, through the window. She then (around 9.00-9.30pm) saw a man climbing in her bedroom, through the window. (The window had been further opened.) At this time, JS was not fully awake. In that state, she thought the man was her friend Glenn. She asked the man, "Is that you Glenn". The man said, "Yes". 9. The man was the Offender. He had entered JS's home, through the window, into the dark room, intending to steal property from within the unit. 10. While JS was still waking up, she saw the Offender next to her bed. Before she knew what was happening, the Offender penetrated her vagina with his penis. The Offender then had "penis in vagina" sexual intercourse with JS for about five minutes. The Offender ejaculated in JS's vagina. 11. JS did not consent to have sexual intercourse with the Offender. The Offender knew that JS did not consent to have sexual intercourse with him. The Offender knew that she was mistaken as to his identity; he knew that she thought the person in the room was a person called Glenn. The Offender gave JS no opportunity to consent to have sexual intercourse with him. The Offender took advantage of JS's mistake as to his identity. 12. JS felt panicked but tried to stay calm. She was confused by what was happening. She was still in the process of waking up. She thought the man was Glenn but was confused because she and Glenn had never had sexual intercourse before. 13. JS got out of her bed and turned on the bedroom light. When she turned on the bedroom light, she saw that the man in the room was not her friend Glenn. JS did not know the man who was in her room. (She did not know the Offender.) 14. JS said words to the effect of, "Who the fuck are you" to the Offender. He smirked and said, "I'm the one that just fucked you". JS then said words to the effect of, "Get the fuck out of here". She also indicated that she was going to call the police. 15. JS ran to the kitchen area in the unit. She was upset and hysterical. The offender climbed out of the bedroom window and left the area. JS ran through different areas of the unit and secured the windows and doors, so that the Offender could not get back inside.
2. Counsel for the offender submitted that the above summary by the Crown of the facts to be derived from the Jury verdict was derived from the evidence of the victim JS at trial. That evidence was given 34 years after the offences occurred in circumstances where a statement made by her to police on 22 December 1988 had been either lost or destroyed. The offender submitted that the best evidence was the contemporaneous account given by the victim to Dr Kube who examined the victim on the morning following the assault and took a history from her. Dr Kube gave evidence at the trial that she had an actual memory of the victim and taking her narrative. Thus her contemporaneous record was the most reliable evidence.
3. Dr Kube recorded the following history:- "JS lives in a ground floor unit with her sister, however her sister was out tonight. JS went to bed early (approx. 8.45pm on 22/12/88 (sic) as she usually does. She was not wearing anything. At approximately 9:30pm JS awoke to the sound of someone entering room through a partially open window. JS said, "Is that you Glen?". The assailant said "Yes". JS noted that the voice sounded like Glen's voice. (Glen is JS's male friend whom she has known for 5 weeks and with whom she has never had sexual intercourse.) The assailant appeared to be dressed in a bulky shirt and undies. He proceeded to have vagina intercourse with JS which lasted about 5 minutes and he ejaculated inside JS's vagina. JS was unsure about the identity of the assailant. She thought it was Glen."
4. Dr Kube took additional notes following her examination as follows:- "JS thought that's this could be his expression of needing comfort and help. On the other hand this action seemed very unusual for Glenn - JS questioned him with, "Have you been drinking?" and the assailant answered "Yes" After sexual intercourse the assailant sat up and was shaking. He asked JS for a glass of water in an abrupt manner (very unlike Glen's manner) and JS proceeded towards the kitchen. As she left the room she heard the Venetian blinds rattle; JS returned to the room and the assailant was gone. JS closed the bedroom window, but not completely, and returned to bed. Approximately 5 minutes later the assailant returned through the window again. JS asked "Is that you Glenn?" He said, "Yes, I'm back, I had to duck out for a minute, I'm sorry." JS said, "I want to turn the light on". The assailant sad, "No", but JS turned the light on and suddenly realised that the assailant was not Glen. The assailant was male between 21 and 26, with olive skin and short black hair parted in the middle. JS said, "Who the hell are you". The assailant said. "I'm well I'm the one that's just fucked you." JS screamed and said, "Get out of her I'm calling the Police", and the assailant ran away quickly and by the window. JS then locked all the windows and doors of her flat and called the police. A person knocked at the door and about 10 minutes later a male voice said, "Here is your credit card" and slid them under the door. It was then that JS realised her purse had also been stolen."

Determination

1. Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community".
2. The facts to be derived from the jury verdict are as follows. On 21 December 1988 the victim was living with her sister in a ground floor unit at [L]. It was a two-bedroom unit facing the back of the unit block and the victims window looked out over a grass verge along the side of the building. A window, which was located over her bed, opened horizontally and was covered by partially open venetian blinds. The victim went to bed at approximately 8.30pm leaving the window open. At about 9.30pm she awoke and heard the rustling of the blinds in her bedroom and saw someone climbing in the window. She was not fully awake and did not know who the man was but thought it was Glenn, a man she knew. She asked the man what he was doing there and he didn't answer. The victim was still waking up when the offender had penile vaginal sexual intercourse with her. After that occurred she realised that she did not know the man. She turned the light on and said "Who the fuck are you?" and he said "I'm the one that just fucked you". The victim saw that the man was smirking and she said "get the fuck out of here" and she ran to the kitchen. She then heard the venetian blinds in her bedroom and returned to the bedroom where she saw the man going out through the window.
3. The objective seriousness of the offending in Count 1, enter dwelling house at night with intent to commit a felony, is to be assessed having regard to all of the circumstances of the offending conduct, together with larceny being the indictable offence intended. The offender entered through an open window at 9.30pm at night into a darkened room. I am satisfied that the offending fell below the mid-range for an offence pursuant to s 111 of the Crimes Act 1900, and in the upper part of the low-range for such an offence. It still constitutes serious offending.
4. Having regard to all of the circumstances of Count 2, sexual intercourse without consent, I find that the objective seriousness of the offending fell within the mid-range for an offence pursuant to section 61D(1) of the Crimes Act 1900, although towards the lower end of the mid-range. It was opportunistic offending when the offender entered the darkened bedroom and took advantage of the victim's confusion as to his identity whilst she was waking up. He proceeded to have penile/vaginal sexual intercourse and ejaculated in the victim's vagina. It is irrelevant in that assessment that there was no coercion, threat or violence directed towards the victim and the submission made on behalf of the offender to that effect ignores the fact that a sexual assault is of its very nature an offence of violence in terms of the violation of the victim's body.
5. In R v Hall, supra, the Court of Criminal Appeal applied R v MJR as the to the correct approach to sentencing for historical offences when sentencing practices in the intervening period have moved adversely to an offender. At [74] the Court referred to Sully J's reliance on the judgement of Howie J in R v Moon [2000] NSWCCA 534 as follows: "The nature of the criminal conduct prescribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence, and be proportional to the criminality involved in the offence committed. Whether the sentence to be imposed meets these criteria will be determined principally by the consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence". (Authorities and citations omitted).
6. I take into account the maximum penalty of 10 years imprisonment for the offence in Count 1, an offence under s111 of the Crimes Act 1900, and the maximum penalty of 8 years imprisonment for Count 2, an offence under s61D(1) of the Crimes Act 1900. The maximum penalties reflect the serious nature of the crimes, and are a guidepost in the sentencing process. Whilst there were no aggravating factors to be taken into account in sentence on Count 1, the following aggravating factors are relevant to Count 2:- 1. The offence occurred in the home of the victim - s21A(2)(eb). I do not accept the submission made on behalf of the offender that as Counts 1 and 2 were so inextricably linked as a temporal sequence of events the Court would exercise a discretion to moderate this factor of aggregation in terms of the overall offending. On the contrary, to be violated in the safety of her own home as occurred in Count 2 is a significantly aggravating factor which cannot be moderated merely because the offender committed another crime that was temporally linked namely, Count 1. 2. The emotional harm caused by the offence was substantial - s21A(2)(g). The harm caused to the victim is outlined in the VIS which I refer to below. I therefore reject the submission made on behalf of the offender that the injury or harm caused was not substantial.
7. I do accept that a mitigating factor pursuant to s21A(3)(b) was that the offence was not part of a planned or organised criminal activity in respect of Count 2 only. I am satisfied that the offending in Count 2 was spontaneous and opportunistic as submitted by the offender. I do not accept that it is a mitigating factor that there was no coercion, threat or violence on the offenders part during or after the sexual assault which would have aggravated the offending.
8. General deterrence is important in sentencing for offences pursuant to s111 of the Crimes Act and for offences pursuant to s61D(1) of the Crimes Act. A clear message must be sent to like-minded members of the community that Parliament has prescribed lengthy maximum sentences of imprisonment for offences involving enter a dwelling house with intent to commit a felony and for offences of having sexual intercourse without consent, knowing that the victim was not consenting, and that the courts will impose condign punishment in appropriate cases. Further, general deterrence remains an important sentencing principle for historical offences of sexual assault. Specific deterrence is somewhat diminished here, for reasons outlined below relating to the offender's subsequent imprisonment by way of a life sentence for murder and the delay in sentence.
9. The consequences of delay in sentencing were explained by Street CJ in R v Todd (1982) 2 NSWLR 517 at 519 as follows:- "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
10. In R v Hall the Court of Criminal Appeal applied those principles and noted that they were specifically endorsed by the High Court in Mill v R in (1988) 166 CLR 59 at [65]-[66]. At [61] R A Hulme J stated that:- "Both cases were concerned with the question of totality in the context of sentencing an offender which has been delayed in a matter not of his or her choosing because of the need to serve sentences in another jurisdiction."
11. The delay here is comprised of several periods. The first was from the date of offending on 21 December 1988 until 30 October 2009 when NSW Police were notified by the FASS of a link between the DNA crime sample and the offender. During this period of nearly 21 years the offender was not left in any state of uncertain suspense as to what would happen to him when in due course he came up for sentence because he had decamped the scene of the crime and had not been identified as the perpetrator. That period therefore does not qualify the offender for the flexibility of approach and leniency being extended as referred to by Street CJ.
12. The second period of time is from 30 October 2009 until the transfer of the offender to NSW Custody on 11 December 2019 following which a DNA match was made with the crime scene sample in 2020. During that period of time the offender was serving a life sentence for the murder of his wife in a Queensland correctional centre and again during that period the offender was not left in any state of uncertain suspense as to what would happen to him upon sentence for the index offending as he had, to his knowledge, escaped detection for it. The failure of the NSW Police to use the evidence of the DNA match to further investigate the matter, and the delay thereby caused, is a relevant matter on sentence.
13. The third period of time is from 2020 until today when the offender is being sentenced for crimes he committed in 1988, a relatively short period out of the 34 years that have transpired. It should be noted that there was no delay in complaint by the victim here who reported the offences immediately to the police and who in 2020 after being contacted by the police agreed to support the prosecution of the offender.
14. Thus, the passage of time between the offending and the offender's arrest was largely attributable to the offender evading detection as the person responsible for the index offences. It is also important to note that historical sexual offences where an offender has avoided responsibility for his criminal conduct is not regarded as a "stale crime" as referred to by Street CJ in Todd.
15. The delay in sentencing has meant that the sentencing regime has changed for similar offending however the correct approach to sentencing in those circumstances is set out in [49] above. Also, the offender has been serving a lengthy term of imprisonment for murder, and has demonstrated progress with his rehabilitation for that offence to prison authorities throughout that sentence.
16. It is also relevant that at the time of his sentencing for murder, there was no question of the principle of totality being applied for the index offending which took place some 20 years before that offence.
17. For all of those reasons the delay in sentencing, in accordance with the principles set out in Todd, do not lead to considerations of fairness to the prisoner playing a dominant role in sentencing or requiring an undue degree of leniency being extended to him. Rather for the majority of that time he remained silent presumably hoping that his responsibility for the offending would go undetected. See R v Hall at [63] referring to Elchiek v R [2016] NSWCCA 225 at [58].
18. The fact that the offender has not committed further offences, at least between December 1988 and 2005, and the progress he has made with his rehabilitation since his sentence of life imprisonment commenced does however diminish the importance of specific deterrence in sentencing. Notwithstanding that the offender was assessed as a medium-low risk of recidivism by the author of the SAR, I find that his incarceration since 2008 and the progress he has made with his rehabilitation means that his risk of reoffending has been diminished and he is properly to be regarded as a low risk of reoffending.
19. The delay between the offending and sentence, together with the progress that the offender has made in his rehabilitation whilst in custody, his low risk of reoffending and the diminished importance of specific deterrence warrant a finding of special circumstances pursuant to s44(2) of the CSPA in the event that a term of imprisonment is imposed for the index offending. Also relevant to that finding is the impact on the prison population due to the COVID-19 pandemic, resulting in onerous conditions being imposed, including cessation of visitations and educational programs as well as frequent lockdowns.
20. The VIS which was read in court by the OIC was a poignant example of the profound impact of sexual offending on young persons and the fact that such emotional harm may endure for a lifetime. I am however mindful that the VIS outlines that the victim felt ridiculed by police as though she was inventing a story, seeking attention and wasting their time. The fact that investigating police never contacted her following such a traumatic event was a substantial component of her emotional harm which cannot be sheeted home to the offender. Notwithstanding that, the VIS does outline the substantial impact the emotional harm caused by the offending has had on the victim over her lifetime in a way which has affected all of her life's activities. I have therefore taken the VIS into account, but not so as to aggravate the offender's moral culpability for the offending.
21. I have taken into account the subjective matters put on behalf of the offender. I accept that he has made a genuine attempt to rehabilitate himself so as to re-enter the community, that he has been a model prisoner, that he has undertaken education courses in custody, and is employable with good prospects of employment upon his release. He also has the support of his family.
22. I am satisfied that pursuant to s5 of the CPSA, having considered all possible alternatives, no penalty other than a term of imprisonment is appropriate in all of the circumstances. I intend to proceed by way of an aggregate sentence pursuant to s53A of the CSPA and so as to ensure transparency in the sentencing process I find the following indicative sentences:- Count 1, an offence pursuant to s111 of the Crimes Act 1900, 2 years imprisonment. Count 2, an offence pursuant to s61D(1) of the Crimes Act 1900, 3 years imprisonment.
23. In coming to those indicative sentences, I acknowledge that there are no sentencing statistics available for offences committed in 1988 and the examples of sentencing provided by the solicitor for the offender (R v Kovacs and Radenkovic v R) must be confined to their own set of facts. In arriving at an aggregate sentence, I must have regard to principles of totality and proportionality. The principle of totality was described by Howie J in R v Cahyadi [2007] NSWCCA 1 at [27] as follows: "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 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 what 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 two offences. 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."
24. Here, the two offences were part of one course of criminal conduct. Notwithstanding that the offence in Count 2 was opportunistic offending, it escalated the seriousness of the offending conduct to a significant degree and therefore there must be some accumulation in the two sentences. I therefore intend to impose an aggregate sentence of four years imprisonment. As the offender is still serving a term of imprisonment for murder and will not be eligible for parole until 4 May 2023, notwithstanding that he has been in custody for the index offences since 23 June 2020 I intend to backdate the sentence to 30 September 2021. Having found special circumstances, I also intend to impose a non-parole period of two years and six months from 30 September 2021 terminating on 29 March 2024.

Orders

1. I make the following orders:- 1. You are convicted of an offence pursuant to s111 of the Crimes Act 1900 that on 21 December 1988 at [L] you did at night enter the dwelling house of JS with intent to commit a felony therein namely larceny. 2. You are convicted of an offence pursuant to s61D(1) of the Crimes Act 1900 that on 21 December 1988 at [L] you did have sexual intercourse with JS without her consent and knowing that JS did not consent. 3. I sentence you to an aggregate sentence of four years commencing on 30 September 2021. 4. The non-parole period will be for a period of two years and six months from 30 September 2021 until 29 March 2024. The balance of term will be from 30 March 2024 until 29 September 2025.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2022