168 A Crim R 41
Cherry v R [2017] NSWCCA 150
CMB v Attorney General for NSW [2015] HCA 9
256 CLR 346
Dinsdale v The Queen [2000] HCA 54
202 CLR 321
Everett v The Queen [1994] HCA 49
181 CLR 295
Graham v Regina [2009] NSWCCA 212
Green v The Queen
Source
Original judgment source is linked above.
Catchwords
168 A Crim R 41
Cherry v R [2017] NSWCCA 150
CMB v Attorney General for NSW [2015] HCA 9256 CLR 346
Dinsdale v The Queen [2000] HCA 54202 CLR 321
Everett v The Queen [1994] HCA 49181 CLR 295
Graham v Regina [2009] NSWCCA 212
Green v The QueenQuinn v The Queen [2011] HCA 49244 CLR 462
Hili v The QueenJones v The Queen [2010] HCA 45242 CLR 520
House v The King [1936] HCA 4055 CLR 499
JM v R [2014] NSWCCA 297239 A Crim R 528
Markarian v The Queen [2005] HCA 25228 CLR 357
Postiglione v R [1997] HCA 26164 A Crim R 179
R v Harris [2015] NSWCCA 81
R v Knight [2005] NSWCCA 253155 A Crim R 252
R v Lee [2000] NSWCCA 392
R v MAKR v MSK [2006] NSWCCA 381167 A Crim R 159
R v MMK [2006] NSWCCA 272164 A Crim R 481
R v O'Connor [2014] NSWCCA 53239 A Crim R 487
R v S [2000] NSWCCA 13
111 A Crim R 225
R v Simpson [2001] NSWCCA 534
53 NSWLR 704
SZ v R [2007] NSWCCA 19
Judgment (16 paragraphs)
[1]
16 February 2018
Before: Lakatos SC DCJ
File Number(s): 2014/180530
[2]
Judgment
MEAGHER JA: I have had the advantage of reading in draft the reasons and proposed orders of Hoeben CJ at CL, with which I agree.
HOEBEN CJ at CL:
[3]
Offences and sentence
The respondent was committed for trial on 17 December 2014 for offences of ongoing domestic violence. The offences spanned six years between 2008 and 2014. The offences took place in a domestic situation and involved two victims, the respondent's wife and their daughter. I propose, without disrespect, to refer to the victims respectively as "R" and "T".
On 28 November 2016 just before the jury was empanelled, the respondent pleaded guilty to 10 of the 21 counts on "the original indictment". The respondent was then arraigned before the jury on a separate indictment (the trial indictment) on the remaining counts. The matter then proceeded before his Honour Judge Lakatos SC and a jury.
On 19 December 2016 the jury returned guilty verdicts on all counts on the trial indictment, except Count 11. There was a directed verdict of not guilty in relation to that count.
Sentence proceedings were heard on 7 April and 11 December 2017. His Honour pronounced sentence on 16 February 2018 for 19 counts over the two indictments. His Honour imposed two aggregate sentences, relevant to each of the victims, partially accumulated.
For Counts 5 and 6 on the original indictment, (the offences where the victim was the respondent's daughter), his Honour imposed an aggregate fixed term of imprisonment of 18 months, commencing 17 June 2014 and expiring 16 December 2015. That sentence was served in full.
For the remaining 17 counts, where the victim was the respondent's wife, his Honour imposed an aggregate sentence of imprisonment of 10 years with a non-parole period of 6 years and 9 months. The aggregate sentence was accumulated on the fixed term sentence by 12 months, to commence 17 June 2015. The non-parole period will expire on 16 March 2022. His Honour made a finding of special circumstances.
Accordingly, the overall effective sentence is a term of 11 years with a non-parole period of 7 years and 9 months. The respondent will be eligible for parole on 16 March 2022. The overall sentence will expire on 16 June 2025.
The Director of Public Prosecutions appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed by his Honour. The Notice of Appeal was filed by the DPP on 3 May 2018 and served on 8 May 2018.
The DPP submits that the aggregate sentence imposed upon the respondent in respect of his wife "R" was manifestly inadequate.
[4]
Factual background
The respondent was born in May 1969 and was aged 48 at the time of sentencing. The respondent was arrested on 17 June 2014 and has been in custody since that time.
The Crown case was that during the relevant period the respondent and his wife were living at Wollomombi with their daughter and for a period with another couple and their son. The relationship between the respondent and his wife was marked by physical and mental abuse in the circumstances nominated in the indictment. The respondent assaulted his wife causing her actual bodily harm. He used an offensive weapon or instrument to intimidate her. He indecently assaulted her, detained her for a psychological advantage and had sexual intercourse with her without her consent.
The offences against his daughter comprised an assault occasioning actual bodily harm and a common assault.
The case for the respondent at trial was that the assaults and the detention did not occur and that the sexual intercourse offences were consensual, i.e. that his wife engaged in the activities knowingly and with consent. His Honour observed that it was self-evident from the verdicts of the jury that they rejected that defence.
His Honour summarised the facts of each count as follows.
Count 1 on the trial indictment - Assault occasioning actual bodily harm (s 59(1) Crimes Act 1900 (NSW)). This offence occurred between August 2008 and August 2009. There was an argument between the respondent and his wife at their home. The respondent threatened to take the victim to the well and drown her. He dragged her down the path to the well by her clothes, her hair and her ears and arms, ripping her clothes in the process. During those events, he punched her very hard in the stomach causing her to become winded and fall to the ground. He continued to swear at her and threaten to drown her. Once they reached the well, the respondent removed part of the metal sheeting and tried to force her into the water below.
His wife sustained injuries as a result of that assault. Her arms, sides and her ears were left very red and bruised. The indicative sentence was imprisonment for 2 years.
Count 2 on the trial indictment - Using an offensive weapon with intent to intimidate his wife (s 33B(1)(a) Crimes Act). This offence occurred between January 2010 and December 2010. The events followed an argument between the respondent and his wife. He dragged her to the dog kennel and told her to stay there where she belonged. She was in the dog kennel for approximately two to three hours. The respondent remained at the kennel for a short time and then went back into the house, returning to the kennel from time to time. He sprayed cold water from a hose onto the kennel more than once. On one occasion he came to the kennel with a knife and taunted his wife, pushing the knife through the gaps in the kennel. The knife had a blade approximately 30 centimetres in length.
[5]
Proceedings on sentence
Victim Impact Statements from the respondent's wife and daughter were read to the court. His daughter spoke of witnessing constant arguments, violence, swearing and all manner of other "horrible" occurrences between the respondent and her mother. She told of the controlling nature of the respondent and that she was still affected at the age of 20 by what she had seen and heard. Since the respondent's arrest she had consulted different counsellors and continued to have nightmares. She was concerned that the memories of the things she witnessed would never go away.
The respondent's wife spoke of the physical pain and damage to her body and that she was still in constant pain and found it difficult to maintain a normal life. She was a prisoner throughout the relationship and shut off from any contact with her family for over 20 years. She felt extremely vulnerable, confused and insecure and struggled to build relationships. She had been diagnosed with post traumatic stress disorder and was seeking medical help for that condition. She felt guilty about the life her daughter had experienced and in particular, that these events had held her daughter back in her education and her development. She lived in constant fear of reliving the horror of her previous life. Nightmares continued to bother her, causing her to self-medicate with alcohol. This in turn had necessitated her undergoing a detox program.
When referring to the Victim Impact Statements, his Honour said:
"It is plain the effects upon both, particularly [the wife], were longstanding, traumatic and will no doubt stay with her for a long time, if not permanently." (Sentence judgment, 19.1)
The respondent's subjective case, as it emerged in evidence, was as follows. He was aged 48 at the time of sentence. He was born in Istanbul and migrated to Australia when he was aged six. He had two brothers and one sister, all older than him. His mother died of leukaemia when he was aged 15 and his father died of bone cancer when he was aged seven. He was raised by his older brother, who was said to have taken a heavy handed approach to the role, including beating him physically.
In 1994 the respondent travelled to England where he met and married "R". They had one daughter from their relationship, the other victim "T". The respondent was a chef by trade and gave a history of having owned five restaurants over a 22 year period. He resided with his family on a property at Wollomombi at the time of the offences and was studying psychology at the University of New England for a period of time.
[6]
Evidence of assistance to authorities
In March 2016, while on remand, the respondent was assaulted by four other inmates and placed in segregation at the Parklea Correctional Centre for his own protection. It was during this time when housed adjacent to other sex offenders that he engaged in conversations with another Turkish inmate, who apparently made confessions to serious sex crimes against children.
Detective Carter of the Sex Crimes Unit of NSW Police gave evidence at sentence proceedings as to the willingness of the respondent to assist police in relation to a named person. Detective Carter's evidence covered the following matters:
The respondent had made two statements in relation to a named person charged with a number of child sex offences that involved close to 12 victims of school age. The named person of interest was befriended by the respondent while in gaol.
The material supplied to police by the respondent was largely corroborative and known to police. The assistance had not led to the identification of any further offenders nor did it lead to any further arrests or charges. Detective Carter assessed the assistance as:
"From a policing point of view the first two things we look at is did it lead to any further arrests or charges, or did it ID an offender that was unknown to us and it doesn't do either of those two but due to the extreme nature of the matter that I'm investigating, I put it to a more medium as it is, because it doesn't hit those two points but the information is still extremely important to us and the case and the respondent himself has put himself at great lengths to provide this information to us."
Police had the respondent placed into protective custody.
[7]
Findings by his Honour in the sentence proceedings
His Honour made the following findings:
1. When sentencing repeat domestic offenders, specific and general deterrence are important factors and the court should recognise the harm done to the victims and the community.
2. All the offences, with a couple of exceptions, occurred on a relatively secluded rural property where immediate assistance for the victims was not available. These were persistent offences of violence and degradation which were properly characterised as serious criminal misconduct.
3. The degree of force, degradation and coercion was high, especially in relation to the most serious offences. Both victims lived with domestic abuse. Both victims were placed under considerable pressure not to disclose the offending conduct.
His Honour identified the following aggravating features:
1. Some of the offences against "R" were committed in the presence of her daughter, "T", who was then less than 18 years of age at the time (s 21A(2)(ea) Crimes (Sentencing Procedure) Act 1999 (NSW)).
2. The offences were committed in the home of the victims, except those that occurred on the Jindabyne trip (s 21A(2)(eb)).
3. Substantial emotional harm was occasioned to "R" (s 21A(2)(g)).
His Honour found the following mitigating features:
1. The respondent was remorseful for those offences to which he had pleaded guilty. There was no remorse in respect of those offences which were the subject of the jury verdicts.
2. On the counts on which pleas of guilty were entered, a discount of 10 per cent would apply.
3. For the assistance to authorities, a discount of 20 per cent would apply to all offences.
4. His Honour accepted the psychiatric diagnosis of Bi-polar Disorder and that it contributed in a significant way to the presentation of the respondent, his lack of judgment and self-control, and hence the commission of the offences.
5. His Honour took into account that his mental illness contributed to the offending and the sentences would have to take that into account. His Honour took into account that his psychological condition would make his custodial circumstances more onerous.
6. His Honour found special circumstances based upon the need for the respondent's rehabilitation, that his disabilities and disorders needed to be dealt with, the need for strict protection, his plea of guilty and assistance and as a result of the accumulation of the sentences.
[8]
The respondent's submissions
The respondent submitted that the Crown carried the onus of demonstrating appealable error in accordance with the principles set out in House v The King [1936] HCA 40; 55 CLR 499 and Dinsdale v The Queen [2000] HCA 54; 202 CLR 321. He submitted that the Crown carried the additional onus of demonstrating compelling reasons why this Court should not exercise its residual discretion not to intervene: CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346.
The respondent submitted that the offences committed against his wife and daughter involved the behaviour of a psychologically damaged person, even though the crimes themselves were violent, humiliating, cruel and in some instances, sadistically and psychologically cruel. In particular, the respondent challenged the proposition that the Crown had established that his Honour's sentencing discretion had miscarried and that the sentence itself was manifestly inadequate.
The respondent submitted that the following matters militated against any interference with the sentence imposed:
1. The pleas of guilty to 10 of the 19 offences on the original indictment.
2. The assistance to law enforcement authorities and consequent harsher custodial regime.
3. The respondent's mental health and mental health history and consequent harsher custodial regime.
4. The application of the principles of totality.
The respondent submitted that he had a strong subjective case in that violence had been inflicted upon him by his older brother and he had been sexually abused by a family member.
The respondent noted that he had agreed to assist law enforcement authorities in respect of the criminal proceedings against an alleged child sex offender and in that regard, had made two police statements and had agreed to give evidence in the trial of that accused. His Honour had found that for the purposes of s 23(2) of the Crimes (Sentencing Procedure) Act that his assistance was "useful and significant" (Sentence judgment, p 25.9).
[9]
Consideration
In approaching a Crown appeal I am conscious of the principles applicable. These were usefully summarised in R v Barker [2016] NSWCCA 193 (Hoeben CJ at CL with whom Bathurst CJ and Price J agreed) as follows:
"52 Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a "limiting purpose" for such appeals and, by contrast with the Court's jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is "plainly unjust" by reason of its manifest inadequacy) for the mere "correction of error in the individual sentencing proceedings" (Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8).
53 Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is "plainly unjust") the Crown must:
(i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]);
(ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]);
(iii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed).
…
55 Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is "plainly unjust" and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R."
A claim of manifest inadequacy requires the party advancing that complaint to establish that the sentences imposed were unreasonable or plainly unjust in a sentencing environment where there is no single "correct" sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen at [6]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58].
[10]
Appellant's submission
Although the Crown relied upon a single ground of appeal, i.e. manifest inadequacy, it particularised the respects in which that inadequacy was demonstrated as follows:
1. The discount for assistance was unreasonably disproportionate.
2. Failure to impose a sentence that reflected the objective seriousness of the offending.
3. Setting an erroneously lenient non-parole period, the finding of special circumstances and double counting.
4. Error in the approach to the principle of totality.
[11]
Discount for assistance
The Crown submitted that although it is only an aggregate sentence which is amenable to appeal, indicative sentences may nonetheless point to error in the construction of an aggregate sentence. The Crown submitted that in this case, when one had regard to the indicative sentences and the discount for assistance, it was clear that the 20 per cent discount for the respondent's assistance was excessive (JM v R [2014] NSWCCA 297; 239 A Crim R 528 at [40]).
The Crown noted that the power of the court to reduce a sentence for assistance to law enforcement authorities is governed by s 23 of the Crimes (Sentencing Procedure) Act 1999. This section empowers a court to impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. Section 23(1) confers a discretion, and not an obligation. Whether the assistance warrants the imposition of a lesser sentence depends on the application of the criteria in s 23(2). In this case, the Crown submitted that the discount of 20 per cent afforded to the respondent was unreasonably disproportionate to the assistance provided.
Relevant considerations to the provision of assistance were as follows:
1. The information provided by the respondent to police was totally unrelated to the offences of which he had been convicted.
2. The material was largely known to police and was corroborative of video evidence already at the disposal of the prosecution.
3. The assistance had not led to any further arrests or charges.
4. The police assessed the level of assistance as "medium" and the level of risk to the respondent as "great".
5. The respondent provided an undertaking to give evidence.
6. The usefulness of any evidence would be limited by problems relating to the respondent's credibility.
The combined discount for the plea and assistance was 30 per cent for those matters to which the respondent had pleaded guilty and 20 per cent for the matters which went to trial. The Crown submitted that in those circumstances, the lack of any connection between the offences in respect of which the assistance was given and those of which the respondent had been convicted, together with the modest value of the information provided, were indicative of an overly generous allowance of 20 per cent which in turn contributed to the imposition of a manifestly inadequate sentence.
[12]
Failure to impose a sentence that reflects the objective seriousness of the offending
The Crown noted that an essential part of the sentencing process was an assessment of the objective gravity of each offence and that the sentence imposed must reflect the objective seriousness of the offending. His Honour did not deal with the objective seriousness of all of the offences saying "Due to the number of offences, I do not propose to deal with each of them in accordance with my assessment of the objective seriousness but I propose to deal with those in the most serious category and they are as follows". His Honour proceeded to assess the objective seriousness of Counts 2, 3, 4, 6, 7 and 10 on the trial indictment, and Count 6 on the original indictment.
The Crown noted that the offences spanned a period of 6 years, between 2008 and 2014. Two of the offences concerned the daughter of the respondent (Counts 5 and 6 on the original indictment). The balance of charges concerned his wife. The offences against his wife were by far the most serious and spanned a much longer period of time.
The Crown submitted that in respect of each of the sexual assaults (Counts 4, 6, 7 and 10 on the trial indictment), his Honour specified indicative head sentences which were well below the standard non-parole periods carried for those offences. In respect of Counts 6, 7 and 10 on the trial indictment, his Honour made a finding of objective seriousness of "above mid-range". In respect of Count 4, his Honour made a finding that the offending was at, or slightly above, mid-range. In respect of Count 2, which involved the use of the knife to intimidate his wife by locking her into a dog kennel, and Count 3, which involved detaining his wife in a shed, his Honour found both "approached the mid-range" of objective seriousness.
The Crown submitted that it did not take issue in the reasoning process by which his Honour arrived at those findings of objective seriousness, but rather that the indicative sentences failed to reflect those findings.
The Crown submitted that the facts relating to Count 6 on the trial indictment supported that contention. This was the offence which involved his wife being required to strip off and being whipped harshly with a belt on her back, head and the back of her legs. It also involved the insertion of large cucumbers and the respondent reporting what had happened to his daughter on the following day. This was an offence contrary to s 61J(1) of the Crimes Act which carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. His Honour found the offence to be above the mid-range of objective seriousness. The Crown submitted that the offence was clearly one of high criminality. It involved the use of a weapon to whip the victim "very harshly", the use of various cucumbers and persistence by the respondent in the face of the victim begging him to desist and saying how much it hurt. His Honour found that the offence was aggravated by the fact that it was committed in the victim's home and that the emotional harm suffered was substantial. Similar observations can be made in relation to the other counts included on the trial indictment.
[13]
The setting of an erroneously lenient non-parole period, special circumstances and double counting
The Crown submitted that even in indicative sentences, when determining a non-parole period, the sentencing judge's primary focus should be on assessing the minimum period of actual incarceration necessary to give effect to the multiple purposes of sentencing (R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [63]; R v Fidow [2004] NSWCCA 172 at [19]; R v Cramp [2004] NSWCCA 264 at [36]).
The Crown submitted that the non-parole periods indicated for the most serious sexual assault offences patently failed to observe that principle. This was particularly so when one had regard to the objective seriousness of the offending, the maximum penalty and, where applicable, the standard non-parole period. The Crown submitted that as a result, the non-parole period specified in the aggregate sentence in respect of the 17 offences against "R" of 6 years and 9 months was "unreasonable or plainly unjust" as explained in Dinsdale v The Queen.
The Crown submitted that his Honour's reasons for finding special circumstances involved double counting. When making that finding, his Honour said:
"I find special circumstances based upon the need for your rehabilitation, the fact that your disabilities and disorders need to be dealt with, the need for strict protection, your plea of guilty and assistance and also, in effect, by the accumulation of the sentences." (Sentence judgment, 35.9)
The Crown submitted that in circumstances where an offender received a discount for assistance to the authorities, and as a result needs protection in custody, it is an error to take this into account as a factor in finding special circumstances (R v S [2000] NSWCCA 13; 111 A Crim R 225 at [33]; R v Lee [2000] NSWCCA 392 at [80]). The Crown submitted that the discount for assistance already reflected the hardship likely to be suffered by the respondent due to the circumstances of his custody. This was one of the matters which is required to be taken into account pursuant to s 23(2)(g) of the Crimes (Sentencing Procedure) Act.
For the reasons set out by the Crown, I am satisfied that there has been double counting in respect of the need for protection of the respondent because of his assistance to authorities. That is a matter relevant to the fixing of the non-parole periods in the indicative sentences.
[14]
Totality
The Crown submitted that domestic violence offences often involved an offender committing multiple offences against the same victim. In such circumstances, the principle of totality required the court to impose a sentence which appropriately reflected the entirety of the offending conduct. The Crown submitted that in applying the totality principle, the question for the court is whether the sentence for one offence can comprehend and reflect the criminality for the other offences (Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 at [27]; R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [11], [13]).
The Crown submitted that where the offences were discrete and independent criminal acts, it was more likely that the sentence for one offence would not comprehend the criminality of the others and that there would be a need for a degree of accumulation between the various sentences. The Crown further noted that this Court has said repeatedly that to ensure public confidence in the administration of justice, it is necessary to impose sentences "which do not suggest that multiple offences will be punished in the same way as one or two offences" (R v Knight [2005] NSWCCA 253; 155 A Crim R 252 at [112]; R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [18]).
I agree with those statements of principle by the Crown on the issue of totality. Ultimately, the question is whether the final aggregation of the sentence appropriate for each offence results in a sentence which reflects a just and appropriate measure of the total criminality involved (Postiglione v R [1997] HCA 26; 189 CLR 295). Applying that principle, I have concluded that when carrying out the notional accumulation of the indicative sentences, his Honour's sentence discretion miscarried in that the overall result reflected in the aggregate sentence for the offences against "R", does not reflect a just and appropriate measure of the total criminality involved, even allowing for an appropriate discount for the plea in some cases and the assistance in all of them. Clearly, the accumulation of sentences, even on a notional basis such as we have here, should not be excessive and the prospect of a "crushing" sentence should be avoided. However, for the reasons set out above, I am satisfied that the aggregate sentence imposed in respect of the offences against "R" does not adequately reflect the totality of the criminality involved.
[15]
Conclusion
I am mindful of the substantial limitations applicable to a Crown appeal (see [65]-[70] hereof). Even allowing for those limitations, it seems to me that this is one of those cases where consistency in sentencing is important. A series of domestic violence offences, such as we have here, committed over 6 years, needs to attract an appropriate sentence in order to maintain public confidence in the administration of justice. As already stated, inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes under consideration, but also in the general public and are likely to undermine public confidence in the courts.
As set out at [80] and [81] hereof, this Court has repeatedly stated that crimes of domestic violence towards female partners are to attract sentences of sufficient severity to deter others who might offend in a similar way. The high level of criminality in the respondent's conduct is obvious in the commission of so many serious offences against his wife over a lengthy period of time. This is so notwithstanding his psychiatric problems, his entitlement to an appropriate discount for his assistance to the authorities and his difficult upbringing. When proper regard is had to the objective seriousness of the offences, it is clear that the aggregate sentence in respect of the offences against "R" was manifestly inadequate and below the range of sentences that could be justly imposed for these offences consistently with applicable sentencing standards.
That does not end the matter. The Crown carries the onus of establishing that this Court should not exercise its discretion not to intervene. In that regard, the respondent has not identified any particular hardship or unfairness affecting him should this Court proceed to resentence. The Crown appeal was filed and served less than 12 weeks after sentence and the hearing was listed within 6 months of the date of the sentence.
On that issue, I am mindful of the observation of Adamson J (with whom R A Hulme and Davies JJ agreed) in R v O'Connor [2014] NSWCCA 53; 239 A Crim R 487 at [88]-[89] where her Honour said:
"88 Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion.
89 Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained. …"
[16]
Amendments
22 October 2018 - Par [11] - incorrect month and year of birth of respondent.
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: 22 October 2018
Eventually the respondent came from the house and allowed his wife out of the kennel and back into the house. During one of the occasions when the knife was pushed through the gap in the kennel, it came in contact with the victim's left knee causing a stab wound over a centimetre wide and half a centimetre or more deep. The victim was scared as a result of that assault. The indicative sentence was imprisonment for 3 years.
Count 3 on the trial indictment - Detention with an intention of obtaining an advantage, namely, intimidation (s 86(1)(b) Crimes Act). That offence occurred between June 2010 and June 2013. It occurred following an argument when the respondent dragged his wife across the ground by her hair to an old shed and forced her into it. She was locked in the shed by a bolt on the outside for about three hours. The respondent came out of the house from time to time to taunt and intimidate her and then returned to the house. She suffered an open abrasion/laceration to the head caused by being hit with the heel of a shoe. The indicative sentence was imprisonment for 3 years and 6 months.
Count 4 on the trial indictment - Sexual intercourse without consent (s 61I Crimes Act). This offence occurred between January 2011 and December 2011. The facts were that while in the bedroom of the home the respondent tried to forcibly insert a wooden baseball bat into his wife. He thereafter forcibly inserted his penis into her anus. She was crying, in pain and begging him to stop. The incident caused her extreme pain, soreness and bleeding. The indicative sentence was imprisonment for 5 years with a non-parole period of 3 years and 6 months.
Count 5 on the original indictment - Assault on the respondent's daughter "T" (s 61 Crimes Act). This offence occurred in early to mid 2013. An argument occurred between the respondent and his daughter concerning the feeding of animals on the property. The respondent became angry with her and punched her in the stomach which winded her. The indicative sentence was imprisonment for 12 months.
Count 6 on the original indictment - Assault occasioning actual bodily harm (s 59(1) Crimes Act). This offence occurred between January 2013 and December 2013. The respondent pleaded guilty. The respondent's daughter was painting the house at the time. An argument ensued between him and her about the quality of the job that she was doing and he became angry and yelled at her. He punched her on the shoulder and picked her up by the scruff of the shirt and threatened to cut her tongue off if she would not be quiet. He picked up a pair of garden scissors and told her to go to her room. She sustained a bruise on the shoulder as a result of that assault. The indicative sentence was imprisonment for 18 months.
Count 5 on the trial indictment (Count 7 on the original indictment) - Assault accompanied by an act of indecency (s 61L Crimes Act). This offence occurred between December 2013 and March 2014 on the first trip by the family to Jindabyne. The respondent and his wife were camping near Lithgow. The respondent became angry after arguing with her. He grabbed her very hard in the vagina area and twisted. This occurred under her clothing and caused her bruising and extreme pain. She screamed out in pain. The respondent also grabbed her breasts, twisted them and dug his nails in. The indicative sentence was imprisonment for 15 months.
Count 8 on the original indictment - Assault (s 61 Crimes Act). This offence occurred between December 2013 and April 2014. It occurred during the second trip to Jindabyne. An argument arose between the respondent and his wife. On that occasion the daughter was present. The respondent slapped his wife on the head several times and threw a glass of water on her. He grabbed her by the neck with both hands, raised her off the sofa and pushed her against the wall causing her to lose consciousness. The indicative sentence was imprisonment for 18 months.
Count 6 on the trial indictment (Count 9 on the original indictment) - Aggravated sexual intercourse without consent (s 61J(1) Crimes Act). This offence occurred between December 2013 and April 2014. It occurred when the family returned home from Jindabyne at which time there was physical and verbal abuse. The respondent told his wife to strip off and she was whipped very harshly with a belt on her back, head and the back of her legs. The respondent inserted three or four telegraph cucumbers into her vagina. The cucumbers were thick and very long, approximately two or more centimetres in diameter. They broke off in her vagina. The victim begged the respondent to stop because she was in pain. She was crying.
The following day the respondent described to his daughter what he had done and said that his wife had actually enjoyed what had occurred. His wife said that these acts caused her considerable pain inside her vagina and extreme pain on the outside of her genital area. She sustained injuries including lacerations, red marks, welts over her back and legs and further injuries occasioned to her head by the belt buckle. She was sore for days following the incident. It was painful for her to go to the toilet. The indicative sentence was imprisonment for 8 years with a non-parole period of 5 years.
Count 7 on the trial indictment (Count 10 on the original indictment) - Sexual intercourse without consent (s 61I Crimes Act). This offence occurred between February 2014 and June 2014. The facts were that the respondent's wife was on the sofa when he forced her to take off her clothes. He knelt in front of her and inserted a baseball bat partially inside her. She pleaded with him to stop, telling him how much pain it was causing her. The indicative sentence was imprisonment for 5 years with a non-parole period of 3 years 6 months.
Count 8 on the trial indictment (Count 11 on the original indictment) - Sexual intercourse without consent (s 61I Crimes Act). This offence occurred between March 2014 and June 2014. The respondent's wife told him that she could not have sexual intercourse with him because she had her period. When she went to the bathroom to change her tampon the respondent came in and wanted to check if she actually did have her period. He harshly shoved his fingers inside her and pulled them out. He subsequently apologised to her for doing it. The indicative sentence was imprisonment for 3 years with a non-parole period of 2 years and 6 months.
Count 12 on the original indictment - Assault occasioning actual bodily harm (s 59(1) Crimes Act). This offence occurred between April 2014 and June 2014. The respondent and his wife were both in the kitchen when he put a metal spoon into a pot of rice which was cooking which caused the spoon to heat up. He pushed the metal spoon on to his wife's neck causing a sharp pain and a severe burn. The spoon was held in that position for about five seconds. The indicative sentence was imprisonment for 2 years.
Count 13 on the original indictment - Assault occasioning actual bodily harm (s 59(1) Crimes Act). This occurred between April 2014 and June 2014, approximately a week after the incident with the hot metal spoon. The respondent's wife was on a sofa when the respondent held a cigarette to her throat for three to four seconds. The indicative sentence was imprisonment for 2 years.
Count 14 on the original indictment - Assault occasioning actual bodily harm (s 59(1) Crimes Act). This offence occurred between May and June 2014. The respondent's wife was pushed out of the front double doors of the home onto the veranda. She attempted to walk away but was ordered back. She sat down and saw that there was a pool of blood coming from a laceration to her right lower leg. The indicative sentence was imprisonment for 18 months.
Count 15 on the original indictment - Assault (s 61 Crimes Act). This offence occurred between May 2014 and June 2014 after the Jindabyne counts and took place on the couple's bed. A dispute arose between the respondent and his wife about his adequacy sexually and about alleged boyfriends that his wife had. The assault was witnessed by their daughter, who heard the sound of the victim choking and saw the respondent grabbing his wife's neck with both hands and tipping her almost upside down. The indicative sentence was imprisonment for 12 months.
Count 16 on the original indictment - Assault occasioning actual bodily harm (s 59(1) Crimes Act. This occurred between May 2014 and June 2014. The respondent was yelling and swearing at his wife and kicked her to the right leg. This caused a wound which was already on her leg to split and bleed profusely. That wound became infected and required ongoing medical treatment. The indicative sentence was imprisonment for 18 months.
Count 17 on the original indictment - Assault occasioning actual bodily harm (s 59(1) Crimes Act). This occurred in June 2014. An argument arose in the bathroom when the respondent wanted to have his wife watch him relieve himself. The respondent hit her 30 times across the head. There were lacerations inside her mouth and bleeding from her gums and lips. One of the blows struck the victim to the side of the head with such force that her head hit the wall and made a large hole in it. The respondent also poured icy cold water over the victim on that occasion. The indicative sentence was imprisonment for 2 years.
Count 10 on the trial indictment (Count 19 on the original indictment) - Sexual intercourse without consent (s 61I) Crimes Act). The facts were that the respondent obtained a foot long flesh coloured dildo between two inches or five centimetres in width. He ripped off his wife's pyjamas, causing a very nasty flesh burn, behind her knees. He told his daughter to leave the room and thereafter forced the dildo into his wife's vagina. The indicative sentence was imprisonment for 4 years and 6 months with a non-parole period of 3 years.
Count 20 on the original indictment - Assault occasioning actual bodily harm (s 59(1) Crimes Act). This occurred between 3 and 16 June 2014. The respondent and his wife were in the kitchen. He hit and kicked her all over her body. One of those blows was to the right side of her body. A subsequent x-ray indicated a broken rib. The indicative sentence was imprisonment for 2 years and 6 months.
The respondent did not give evidence on sentence. Accordingly, his subjective case emerged from the following documents:
A letter from NSW Corrective Services, dated 5 December 2017.
A letter from Parklea Correctional Centre, dated 5 December 2017.
A letter from his sister dated 8 December 2017.
Psychiatric reports of Dr Richard Furst.
Dr Richard Furst was a psychiatrist who had prepared three reports in relation to the respondent. The first of those focused on whether he was fit to plead but the last two reports (10 December 2017 and 14 February 2018) were prepared for sentencing purposes. In order to prepare those reports, Dr Furst conducted an initial psychiatric assessment of the respondent over a 60 minute session at the Parklea Correctional Centre in April 2016 and later on 23 November 2017 for a period of 80 minutes.
Dr Furst received a history that the respondent had experienced depression in his adolescence following the death of his mother and the symptoms of depression continued in the 1980's and 1990's. He sought treatment from a general practitioner in 1993 and was prescribed antidepressant medication. He described his relationship with his wife as both good and bad in that all that he wished to do was to please her, but nothing would satisfy her. He asserted that his wife had a sexual fetish that involved her wanting to insert objects into his anus and that this took place six - twelve times per year.
He reported to Dr Furst that from 2010 he has become more religious and considered himself chosen as a "messenger" from either God or from some other deity. He believed that he had decoded the Bible and the Koran in 2013 and made comments about the matters in those holy books in relation to both religions. He claimed to have had a number of unusual experiences in 2013, including witnessing a star descending in the sky, being the Angel Gabriel carrying a message from God. He heard or reported hearing commands and voices.
In the second assessment, the respondent reported that he himself had been a victim of sexual abuse by his 14 or 15 year old cousin when he was aged six. It involved inappropriate touching and sexual penetration. He further reported to Dr Furst that he was sexually abused by his 16 or 17 year old cousin by having his anus penetrated by that person.
Dr Furst reported that at that time the respondent was under medical care at the Parklea Correctional Centre for apparent mood instability and bi-polar disorder. He reported that the respondent had been assaulted by inmates in March 2016 and was placed in segregation. Dr Furst diagnosed the respondent with bi-polar affective disorder. This arose at the time he was arrested in June 2014 and had continued while he was in custody. On the basis of the history he was given, Dr Furst concluded that "[It was] probable the earlier abuse suffered by [the respondent] contributed to his offending behaviour before the court" (Report, 10 December 2017, p 11).
Dr Furst considered that the custodial restrictions of segregation were harsh and restrictive and that "his bi-polar affective disorder, depression and anxiety are likely to make his custodial environment even more onerous" and he would have less access to appropriate psychological and psychiatric services than in the community (Report, 10 December 2017, p 11). Dr Furst was less certain about any causal link between the mental health diagnosis and the offending. In that regard, Dr Furst concluded that "the reasons for his offending remain unclear" (Report, 10 December 2017, p 11).
Dr Furst used the Static-99R instrument to assess that the respondent was at low to moderate risk of re-offending. Dr Furst noted, however, that the risk assessment process for sex offenders had scientific limitations in that it is not possible to predict with any certainty whether or not an individual person would re-offend.
Professor Greenberg assessed the respondent on 24 June and 7 July 2016 at the Parklea Correctional Centre for the purpose of fitness to be tried. During the interview, he considered that the respondent was coherent in his speech, spoke in a soft manner and that there was no disorder of flow or form of thought. In relation to his religious beliefs/delusions, Professor Greenberg opined that the respondent posed a diagnostic dilemma. He postulated three likely diagnoses:
1. Sexual Sadism Disorder.
2. Narcissistic Personality Disorder.
3. He was exaggerating his mental symptoms in keeping with a diagnosis of malingering.
Professor Greenberg concluded that there was no evidence that any delusional beliefs existed at the time of the respondent's interview with police.
His Honour's conclusion, based on the medical evidence, was as follows:
"Whether or not the episodes of bipolar caused the offending may be doubted. However, it is clear in my opinion based upon the evidence I have heard that it contributed in a significant way to the presentation of the offender, his lack of judgment and self-control and hence the commission of the offences. That being said, it is self-evident that not every person with bipolar disorder commits these range of serious offences and hence, other issues are clearly at play.
I therefore take into account the fact that the offender's mental illness contributed to the offending and will have a relevant impact and that should have an impact on the sentences. I also take into account the fact that his psychological condition will make his custodial circumstances harsher." (Sentence judgment, 33.8)
His Honour was unable to assess his prospects of reoffending or his prospects of rehabilitation. His Honour assessed the objective seriousness of some of the offences as follows:
Count 2 on the trial indictment - Approaching mid-range.
Count 3 on the trial indictment - Approaching mid-range.
Count 4 on the trial indictment - At or slightly above mid-range.
Count 6 on the original indictment - Below mid-range.
Count 6 on the trial indictment - Above mid-range.
Count 7 on the trial indictment - Above mid-range.
Count 10 on the trial indictment - Above mid-range.
Consistency in sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question, but also in the general public, and accordingly are likely to undermine public confidence in the ability of the courts to play their part in determining the appropriate punishment for the commission of crime. To permit the Crown as well as convicted persons to appeal against sentences assists in maintaining confidence in the administration of justice (Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306 per McHugh J).
The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. In the exercise of its jurisdiction under s 5D(1) of the Criminal Appeal Act, the Court retains a residual discretion to decline to interfere with a sentence even where the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1]. The Crown bears the onus of negating any reason why the residual discretion of this Court not to interfere should be exercised: CMB v Attorney General for NSW at [36].
Cases might arise where the Court concludes that the inadequacy of the sentence appealed from is so marked that it amounts to "an affront to the administration justice" which risks undermining public confidence in the criminal justice system. In such a case the Court is justified in interfering with the sentence: Green v The Queen; Quinn v The Queen at [42].
A claim of manifest inadequacy is a conclusion and does not depend on the establishment of specific error: Dinsdale v The Queen at [6]. In R v Harris [2015] NSWCCA 81 Adamson J at [46] (with whom Basten JA and R A Hulme J agreed) observed that where there is in substance only one ground of appeal, manifest inadequacy, identification of specific error is not required.
The Crown had particular regard to s 23(3) which provides:
"A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence."
On the assumption that the undiscounted indicative head sentences adequately reflected considerations of objective seriousness, general and personal deterrence, offending over a lengthy period of time, and offending against more than one victim, and further assuming that the discount allowed for assistance could be held to be an appropriate exercise of his Honour's sentencing discretion, the Crown submitted that the resultant reduction in the aggregate sentence offended s 23(3). This was because it resulted in a penalty which was "unreasonably disproportionate to the nature and circumstances of the offence".
When assessing objective seriousness, his Honour chose seven offences which he regarded as the most serious, all of which were convictions after trial (see [59] hereof). The Crown submitted that when the 20 per cent discount for assistance is had regard to in relation to the indicative head sentences for these offences, it is evident that the final indicative sentences all point to a manifestly inadequate aggregate sentencing result.
The Crown relied upon two examples to demonstrate that proposition. Firstly, it had regard to the indicative head sentence of 5 years for Count 4 on the indictment set against a finding of objective seriousness at or slightly above mid-range and a maximum penalty of imprisonment for 14 years. Accordingly, that indicative sentence was 2 years less than the standard non-parole period of 7 years for that offence. Secondly, the most serious of all of the matters, Count 9 on the original indictment, which carried a maximum penalty of imprisonment for 20 years was given a final indicative head sentence of 8 years which was also 2 years less than the standard non-parole period of 10 years.
The Crown submitted that the evidence in this matter generally, and in relation to those counts in particular, disclosed an appalling level of repeated sexual, physical and psychological abuse in a domestic setting. The Crown noted that this Court has consistently emphasised the need for general and specific deterrence to be given prominence in domestic violence offences. The Crown made specific reference to R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at [86] where Johnson J (Hunt AJA and Latham J agreeing) said:
"86 In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. These principles flow from statements of this Court and are fortified by the enactment of Division 1A of Part 15A of the Crimes Act 1900 including the statutory objects recited in s 562AC."
In Cherry v R [2017] NSWCCA 150 at [78] Johnson J (with whom Macfarlan JA and Harrison J agreed) referred to a number of authorities to similar effect when he said:
"78 In R v Kilic (2016) 91 ALJR 131; [2016] HCA 48, the High Court observed at 137 [21] that current sentencing practices for "offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations". It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.
79 In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54]."
The Crown referred to Graham v Regina [2009] NSWCCA 212 at [43]. There Hoeben J (with whom Macfarlan JA and Grove J agreed) observed that the application of a generous discount inevitably raised the issue of the extent to which a sentence can be reduced by discounts before it becomes inadequate.
The rationale behind such an approach was explained by Howie J (with whom Simpson J agreed) in SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [4]-[6]:
"4 There is a limited degree to which an otherwise appropriate sentence can be discounted for one reason or a combination of reasons and yet result in a sentence that duly reflects the objective seriousness of the offence and the purposes of punishment. There was by applying common law principles, and there still is by the application of the provisions of the Crimes (Sentencing Procedure) Act, a bottom line beneath which a sentence cannot legitimately be set. If that bottom line is not respected, the sentence will fail to carry out the purposes of punishment. That bottom line is reflected in relation to a discount for assistance to the authorities by s 23(3) of the Crimes (Sentencing Procedure) Act. It is spelled out there in the Act because it is in relation to the application of discounts for assistance that the often conflicting purposes and policies of sentencing a particular offender come brightly into focus.
5 But the notion of an irreducible minimum sentence that must inform the lower limit of the sentencing discretion is manifest in the often quoted decisions of this Court emphasising that at the conclusion of the exercise of the sentencing discretion, whatever be the subjective circumstances of the offender and whatever discounts are applied to achieve a recognised public policy, the sentence must bear a reasonable relationship with the objective seriousness of the offence and fulfil the manifold purposes of punishment: see for example R v Geddes (1936) 36 SR (NSW) 554; and R v Dodd (1991) 57 A Crim R 349. Sometimes it is said that the sentence must "accord with the general morale sense of the community": R v Rushby [1977] 1 NSWLR 594. After taking into account the various statutory and common-law principles and applying such discounts that arise on the particular facts, the sentencing judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large.
6 These observations are trite and so there is a risk that they will be overlooked in an attempt to achieve one of the purposes of punishment at the expense of another. I simply wish to emphasise that, because there is only limited room to discount a sentence without going below the bottom line, it must follow that the application of one discount for one purpose will inevitably impact upon the extent to which another discount can be applied to achieve a different purpose. The extent to which a sentence is discounted in recognition of the utilitarian value of the plea must necessarily affect the ability of the court to discount the sentence in recognition of assistance and the consequences of it for the offender. The fact that the overall sentence is discounted in recognition of assistance or for some other reason must affect the ability of the court to reduce the non-parole period in order to reflect special circumstances."
It is clear from the indicative sentences that the discount for assistance has had a significant effect in reducing those sentences. The offences for which the discount was applied were offences of high criminality. His Honour found the sexual assault offences to be above the mid-range of objective seriousness. Those offences were convictions after trial and accordingly, his Honour found that the respondent had no remorse.
I have concluded that this particular relied upon by the Crown as indicating that the aggregate sentence in respect of the offences against "R" is inadequate has been made out. In summary, the objective seriousness of the respondent's conduct, the aggravating features of the offending, the extensive timeframe over which the repeated acts of domestic violence occurred, the limited prospects for rehabilitation, the limited weight that could be attributed to contrition or remorse, the maximum penalties and where relevant, the standard non-parole periods, are not reflected in the pre-discount indicative head sentences. Assuming that the discount for assistance and (where relevant) the combined discount for plea and assistance were within his Honour's discretion, they have, when applied to the pre-discount indicative head sentences, produced an aggregate sentence that is unreasonably disproportionate to the nature and circumstances of the offence.
I have concluded that all of the offences on the trial indictment were serious examples of the kind of offending specified. The only qualification to the seriousness of the offending and arising by way of a reduction in moral culpability was the fact that the respondent was mentally unstable at the time of these offences and that his mental illness contributed to the offending. There was also the respondent's unfortunate background as a child.
However, as his Honour pointed out, the respondent's bi-polar disorder cannot completely explain his offending and there was no evidence to the effect that the respondent was unaware of what he was doing. Accordingly, even taking into account the fact that the respondent's psychological state contributed to the offending, and that this condition would make his custodial circumstances harsher, the objective seriousness of these offences on the trial indictment was high. The offences were not so much sexual offences as opportunities for the respondent to exercise his power and control over the victim in a domestic violence situation. As has been pointed out in the cases in addition to specific and general deterrence, even allowing for his mental condition, the importance of denunciation of such conduct and the need to recognise the harm done to the victim and the community as a result of such domestic violence offences are factors that need to be reflected in the objective seriousness of the offending and then in the sentence imposed.
I have concluded that the indicative sentences fail to appropriately reflect his Honour's correct assessment of the objective seriousness of the offences. I am satisfied that this particular of the inadequacy of the sentences imposed, relied upon by the Crown has been made out.
Given the prevalence of domestic violence offences in our society, the particular seriousness of the offending in this case and the function to be performed by this Court in Crown appeals for the governance and guidance of sentencing courts, I am satisfied that the Court should not exercise its residual discretion but should allow the Crown appeal and resentence the respondent.
On the issue of resentencing, no additional material has been received from the respondent which would require this Court to have regard to any significant change in his circumstances. Moreover, no challenge has been made by either side to the factual findings by the sentencing judge. Accordingly, all that needs to be done is to adjust the aggregate sentence in respect of the offences against "R" so that it adequately reflects the objective seriousness of the offending, together with the other principles of sentencing and also has regard to the respondent's strong subjective case including as it does his psychiatric problems and difficult upbringing.
It follows from the above that it is not necessary to change the indicative sentences even though their modest length is suggestive of error. It is sufficient to adjust the aggregate sentence. That sentence should, as structured by his Honour, be partially accumulated on the aggregate sentence imposed for the offences against "T".
Accordingly, the orders which I propose are:
1. The Crown appeal is allowed.
2. The aggregate sentence imposed on the respondent on 16 February 2018 by his Honour Judge Lakatos SC in respect of the offences against "R" is quashed.
3. In lieu thereof, the respondent is sentenced to an aggregate sentence with a non-parole period of 8 years, commencing 17 June 2015 and expiring 16 June 2023, with a balance of term of 4 years expiring 16 June 2027.
4. The respondent will be eligible for parole on 16 June 2023.