This is an appeal brought on 23 June 2022 by the Director of Public Prosecutions pursuant to s 23(1) of the Crimes (Appeal and Review) Act 2020 (NSW) (CARA) against a sentence imposed in the Local Court on 5 May 2022 sentencing the Respondent, by wholly concurrent sentences, to a total term of imprisonment of two years with a non-parole period of 12 months in respect of two offences constituted as follows:
1. Sequence 1, sexually touching another person without consent pursuant to s 61KC(a) of the Crimes Act 1900 (NSW), which I have referred to in these reasons as "the touching offence", for which he received a sentence at the jurisdictional maximum of the Local Court of two years imprisonment with a non-parole period of 12 months;
2. Sequence 2, stalk or intimidate with the intention to cause fear of physical harm pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) which I have referred to in these reasons as "the stalking offence" for which he received a fixed term of one month's imprisonment.
[2]
Legislative Framework
The appeal is by way of a rehearing of the evidence given in the Local Court proceedings.
The District Court may determine an appeal against sentence by setting aside the sentence, by varying the sentence or by dismissing the appeal pursuant to s 27 CARA. To enliven the court's power to vary the sentence the prosecution must establish error. I have had regard to DK v Director of Public Prosecutions [2021] NSWCCA 134 ("DK").
In this case, as in DK, it is submitted that the sentence is inadequate such as to amount to latent error but also where there is patent error in the learned Magistrate's consideration of the stalking offence. The Appellant also relies on error in setting the ratio between the non-parole period and the head sentence arising out of a finding of special circumstances.
The District Court has a residual discretion to dismiss the appeal notwithstanding a finding that the sentencing decision entailed material error akin to the discretion retained in a Crown sentence appeal under s 5D of the Criminal Appeal Act 1912 (NSW), taking into account relevantly cases where the sentencing Judge's error was caused, or contributed to, by the Crown or where the Crown has attempted to conduct an appeal on a basis different from that advanced before the sentencing Judge. I have also had regard to DK in respect of those principles.
As occurred in DK and where the parties agreed it was appropriate to do so, I have relied on the transcript of argument in addition to the Magistrate's reasons. I am satisfied that it is appropriate to do so to expose his Honour's reasoning in arriving at the ultimate sentence, in order to discern whether it was infected with error. I have had regard to Hay v DPP [2020] NSWCCA 75. This case similarly involves a brief ex-tempore judgment after oral submissions were made and where it is apparent that the Magistrate was relying upon an understanding reached in the course of submissions.
The transcript of argument is also relevant in deciding whether the Prosecutor in the Local Court contributed to any misunderstanding or ran an argument contrary to that put on appeal. The residual discretion empowers a court to dismiss a Crown appeal notwithstanding that the sentence under appeal was erroneously lenient. In that respect I have had regard to DK and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462.
There is no onus on the Respondent to demonstrate that the Crown appeal should be dismissed. I have had regard to CMB v Attorney-General (NSW) [2015] HCA 9 citing R v Hernando [2002] NSWCCA 489. It is for the Appellant to establish appellable error in the sentencing decision and to negate any reason why the residual discretion not to interfere should be exercised. There is a need to consider the nature of the sentencing error in order to ensure that such appeals are "rare and exceptional" and do not unduly circumscribe the sentencing discretion. Consideration must be given to the wider purpose of a Crown appeal to achieve consistency and to establish principles of sentencing.
Where error meets those requirements, the Court may nonetheless, for reasons of principle or because of discretionary considerations, decline to intervene where it is not considered that a different sentence should be imposed or if there was an insufficient difference between the sentence imposed at first instance and any sentence regarded as appropriate. The Court will only intervene if the sentence is so disproportionate to the relevant matters that error can be inferred. I have had regard to Dinsdale v The Queen [2000] 202 CLR 321 ("Dinsdale"). Indeed, there is no single correct sentence. I have had regard to Markarian v The Queen [2005] HCA 25 ("Markarian").
The sentencing Magistrate is to be allowed as much flexibility in the sentencing exercise, conscious of the application of proper principles and consistency of approach. Again, I have had regard to Dinsdale and Markarian.
Principles of restraint must otherwise be observed, and any determination must be approached with caution mindful of the high public interest in the finality of legal proceedings. I have had regard to R v Liberti (1991) 55 A Crim R 120. Finally, if intervention is required the court may impose a lesser sentence than would otherwise have been imposed, generally toward the lower end of the appropriate range.
[3]
Appellant Submissions
The Appellant by its motion argued that the sentence was infected by latent error resulting in a manifestly inadequate sentence particularised by the fact that: first, the finding regarding the objective seriousness of the stalking offence at the lower end of the scale was not open and contributed to a manifestly inadequate sentence; second, given the elements of the particular offences, a wholly concurrent sentence for the stalking offence did not adequately take account of the purpose of sentence, in particular the need for the protection of the community and specific deterrence; third, the sentence imposed for the stalking offence is plainly unjust and manifestly inadequate, and appears to have arisen at least in part due to an erroneous assessment of the objective seriousness of the offence; and fourth, the finding of special circumstances, although open, did not warrant a 50% ratio between the head sentence and the non-parole period particularly where the Respondent has negligible prospects of rehabilitation.
As to the assessment of the objective seriousness of the stalking offence, the Appellant submitted that the conclusion reached in respect of that offence, that the offending was towards the lower end of the scale, was not open on the evidence, arrived as it was on the basis that for "the vast bulk of the following" the Victim was not aware of the Respondent's conduct and that having regard to the transcript of the Local Court proceedings, [1] the Respondent was following the Victim for the purposes of committing the touching offence but not for the purpose of causing fear to her, [2] and that it was "marginal" to the extent that it was to cause her fear. [3]
The Appellant took no issue with the head sentence for the touching offence. As to the assessment of the ratio between the head sentence and the non-parole period, the Appellant submitted that the learned Magistrate imposed a very generous variation in the statutory ratio where the Respondent's history showed him to have no prospects of rehabilitation and where he has no obvious problems that could be corrected in the community. The Appellant accepted that a finding of special circumstances was open given the age of the Respondent and the adverse Covid-19 conditions in which he is to serve his sentence, but that a 50% ratio bespeaks error.
[4]
Respondent's Submissions
Ms Cook of Counsel who appeared for the Respondent submitted, so far as the objective seriousness of the stalking offence is concerned, that there was no error in the learned Magistrate's assessment of the objective seriousness of the stalking offence given the period of time over which it occurred and the circumstances in which it happened, and that the sentence for the stalking and touching offences were not manifestly inadequate. The Respondent submitted that there was no error in the learned Magistrate's consideration of the elements of stalking and the fact that the Victim was unaware of the Respondent was an appropriate matter to consider in the assessment of the objective seriousness of the offence.
It was also submitted that it cannot be said that the findings were not open or that the learned Magistrate misdirected himself.
The Respondent further submitted that there was no error of approach to the question of totality given the overlap of the considerations involved.
So far as the assessment of the ratio is concerned, the Respondent submitted that an overly critical approach ought not be taken to the consideration of the learned Magistrate's reasons, on a sentence that was delivered ex-tempore, where relevant matters were taken into account, where the extent of the ratio was not unusual, and where it did not bespeak error. The Respondent submitted that the resulting non-parole period of one year cannot be said to fail to reflect the criminality involved.
The Respondent accepted that if error is established in respect of the assessment of the objective seriousness of the stalking offence there is a need to resentence and accordingly that the question of special circumstances would remain a live issue. It was submitted, however, that no different order should result regarding the ratio.
The Respondent in support of a generous finding of special circumstances in the order of 50% relied on the following matters:
1. Despite the existence of a supervision order for a further nine months after the expiry of the non-parole period there is nonetheless the need for the Respondent to be supervised for an extended period in the community on parole;
2. The Respondent is serving his sentence under very onerous conditions given his age, his particular confinement and his mental health issues; and
3. The Respondent is now at risk of becoming institutionalised.
[5]
Resolution of the Issues - the Objective Seriousness of the Stalking Offence
The physical act of stalking was satisfied by the Respondent: following the Victim while she was shopping; loitering whilst she tried on clothes and following her home; being with her in the elevator as she travelled to her apartment floor; and approaching her to touch her sexually in a very confined public space.
The Respondent's intention, as accepted by the plea, was to cause the Victim to fear physical or mental harm. That intention was established, as the Respondent knew that his conduct would likely cause fear in her. It is not necessary to prove that the Victim in fact feared such harm, although in the last moments of the stalking offence, when she became aware of his intentions, I find that she did so. That is a matter relevant to assessing the objective seriousness of the stalking offence.
The learned Magistrate fell into error when understating the objective seriousness of the stalking offence by forming the view, contrary to the plea thereby admitting the state of mind and where the physical act was clearly satisfied, that it was "arguable whether it's stalking". [4]
His Honour was so persuaded due to an irrelevant consideration and contrary to the provision namely that:
"Stalking is usually someone you know. You hang around at places they go and it's to intimidate them because stalk, intend to cause fear, but he was following her and she was unaware until he attended at the apartment".
The learned Magistrate's view, expressed during the course of oral submissions, that the "stalk would be probably at the very low end", [5] was also infected by that erroneous view. Indeed, there is a suggestion, illustrated by making it wholly concurrent with the touching offence, and the remark that it "seems almost more relevant in just the lead up and circumstances of the touching offence", that the learned Magistrate gave it almost no regard as a separate offence.
The Respondent's solicitor agreed in argument with his Honour's view about the relevance of the stalking and went on to submit that this placed the offending at "the lower end of the scale". I have had regard to the transcript of argument at page 17.
The plea of guilty and the evidence of the psychologist Mr Sheehan in his report dated 22 February 2022, carried with it the incontrovertible fact that the Respondent intended to cause fear in his Victim and indeed in the final moments, as I have said, he did in fact cause the Victim to suffer fear of physical harm. The learned Magistrate's finding that the offence was "marginal to the extent that it was to cause her fear" because the Victim did not know of the Respondent's presence until the end, confuses, with respect, the state of mind of the Victim with the state of mind of the Respondent, the latter being the only relevant state of mind in respect to whether or not the stalking offence is made out.
The error had a material effect on the learned Magistrate's finding that the objective seriousness of the stalking offence was towards the lower end of the scale. That is not to say that the effect on the Victim is not relevant in determining the objective seriousness of the offending. However, it has no bearing, in my view, as to whether or not the offence was made out or whether it was, to use his Honour's word, "marginal".
The learned Magistrate's ultimate findings that the objective seriousness of the stalking charge was "at the lower end of the scale" was infected by his Honour's view that he had "some issue with that in terms of the propriety otherwise of that charge" based on an erroneous view that the stalking was in order to commit the touching charge and caught up only with that offence. [6] His Honour held, incorrectly in my view, that the intimidation did not occur with the intent of causing the Victim harm. His Honour had earlier observed, in error, that the Respondent was following the Victim for the purposes of the touching offence but not for the purpose of causing fear to her. [7]
[6]
Findings of Objective Seriousness Having Identified Error
Having identified error, it is necessary to consider whether it is appropriate to vary the sentence ordered in the Local Court given the guiding principles which I have set out.
In considering the exercise of the discretion, I have had regard to the prosecutor's submissions in the Local Court, [8] that the learned Magistrate was entitled when assessing the objective seriousness of the touching offence to take into account the lead up to the sexual touching of the Respondent, that is the following the Victim for the purpose of committing the sexual touching offence, placing the touching offence at just below the high range. The prosecutor did not address on the objective seriousness of the stalking offence or in respect of the separate intention of the Respondent to cause fear.
It is necessary therefore that I consider, on the existing evidence, the objective seriousness of the stalking charge, to determine to what extent it departs so far from the flexibility that is accepted in setting the sentence for the offence, so as to warrant intervention despite no clear submission being made by the prosecutor.
The objective seriousness of the stalking offence is to be assessed by reference to the following matters:
1. The Victim was not previously known to the Respondent.
2. The Respondent was motivated by his extreme attraction to the Victim; with his desire for companionship somehow transforming into a sexual focus. I have had regard to paragraphs 15 and 26 of the Sheehan report.
3. The offending was opportunistic and conducted with little planning, occasioned by an intense sexual desire and with an intent to cause fear. Although, I note that that latter matter is already contemplated by the offence.
4. Over a period of one afternoon on 2 January 2022 the Respondent observed and followed the Victim from about 3pm to about 5pm.
5. The Respondent followed the Victim throughout a shopping centre, at times walking at a fast pace and close behind her.
6. The Respondent followed the Victim through various levels of a department store and loitered around a changeroom as she tried on clothes.
7. Thereafter the Respondent followed her from store to store.
8. The Respondent then followed the Victim from the Sydney CBD to Haymarket.
9. The Respondent hastened to follow the Victim into her building. He stepped into an elevator with her and travelled with her to the floor of her apartment.
10. The Respondent followed the Victim intending to cause her fear and for the purpose of ultimately committing a serious crime of sexually touching her if the moment presented itself.
11. The Victim was unaware that she had been stalked by the Respondent earlier in the day and prior to entering her building. She only became aware of the Respondent immediately prior to him committing the sexual touching offence. At that time the Respondent in fact caused the Victim to fear physical harm.
12. The stalking stopped only once the Respondent had put himself in a position where he could achieve his purpose of sexually touching the Victim.
13. The learned Magistrate's finding at page 20, that the Respondent was "a predator on the hunt to follow her for so long and all this way", is apposite. [9]
14. The Respondent knew that his actions would have a terrible effect on the Victim and that following her around would have harassed her.
15. The stalking was brazen and audacious, carried out whilst the Respondent was the subject of an extended supervision order and was subject to electronic monitoring that he must have known was designed in an attempt to lessen a risk that he would commit a sexual offence.
That, in my view, is a serious example of stalking. The fact that the Victim did not know of the Respondent's presence in her vicinity until it was too late for her to escape him does very little, in my view, to detract from that finding. It simply means that, in some respects, the Respondent undertook this offence with some ability, stealth and precision.
The objective seriousness of the offence is, in my view, well above the mid-range for offending of its kind. That finding has contributed to my finding that the sentence in respect of the stalking offence is so lenient that it is unreasonable or plainly unjust having regard to the principles in Markarian.
Those findings have been relevant in my consideration of the need for some accumulation with the touching offence and to re-sentence for the stalking offence, mindful of the need for some concurrency given the time over which it occurred and the Respondent's same motive to commit both offences. Any sentence must have regard to the separate criminality that attaches to the Respondent's actions in the two hours prior to committing the touching offence.
For those reasons, and given the offender's history, I do not accept the Respondent's submission that the s 5 threshold is not crossed for the stalking offence alone. The nature of the offending, and in particular with the Respondent's dangerous history, a matter of aggravation and where it renders specific deterrence and the protection of the community a paramount consideration, makes a term of full-time imprisonment for that offence the only appropriate sentence.
I have come to that view considering: the 25% discount on sentence for his plea; the need for punishment; the need for specific and general deterrence; the Respondent's long history for sexual offences and the high risk to the community that he poses; the Respondent's statements of remorse; the need as far as one can to promote rehabilitation; and the Respondent's subjective case.
Whilst mindful of the degree of overlap, I do not accept that the stalking offence is inextricably linked to the sexual touching offence. I have been conscious to ensure that the sexual touching does not double-count those matters only going to one of the offences. Accordingly, I do not consider a wholly concurrent sentence to be appropriate. As a separate matter I regard the sentence for the sexual touching offence as entirely appropriate given the Respondent's intentions and his background.
[7]
The Finding of Special Circumstances by the Magistrate.
The learned Magistrate sentenced the Respondent to a term of imprisonment of two years with a non-parole period of 12 months for the sexual touching offence.
As to special circumstances the learned Magistrate held as follows: [10]
"The affidavit material you have in terms of strictures and difficulties while in custody for a variety of reasons, COVID and perhaps the nature of your past and current offending, I accept that for those matters it does result, particularly with the additional aspects of COVID, additional burdens whilst incarcerated and perhaps those burdens become a little bit more difficult with age".
His Honour then dealt with the Respondent's psychological issues, seemingly directed at the Respondent's lack of rehabilitation but which I accept are equally relevant to any finding of special circumstances if the Respondent required extended supervision in the community whilst on parole. His Honour varied the statutory ratio to order a 50% ratio between the non-parole period and the head sentence on the "given age and COVID issues".
[8]
The Legal Framework Regarding a Finding of Special Circumstances
Section 44 of the Crime (Sentencing Procedure) Act 1999 (NSW) (CSPA) provides that a court is first to set a non-parole period for the sentence, that is the minimum period for which the offender must be kept in detention in relation to the offence. That is not necessary when one is dealing with an aggregate sentence, which I intend to impose.
The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more in which case the court must record its reasons for that decision. Whilst a finding of special circumstances is discretionary, that discretion is not unfettered. There is a need to identify the relevant circumstances as being special.
I have had regard to a number of cases in determining whether or not the 50% ratio between the non-parole period and the head sentence is beyond the pale so as to bespeak error.
In the Crown appeal of R v Cattell [2019] NSWCCA 297 the Respondent received a statutory ratio of 30%; extremely low on any view. The Respondent was 79 when sentenced and 81 years old at the time of his appeal. In finding special circumstances the sentencing Judge considered the Respondent's age and his prospects of rehabilitation. The Court was satisfied that both the head sentence and the non-parole period were manifestly inadequate and that the Crown had demonstrated that the discretion to decline to re-sentence should not be exercised and re-sentenced the Respondent. The statutory ratio given on a re-sentence was 50%, based only on the Respondent's age and with no specific findings that the statutory ratio was in error.
In R v Newman [2022] NSWCCA 218 the ratio of 54.5% was said to incorporate a significant degree of leniency but not in error, although it was noted that it was not a Crown appeal and that that point was not taken.
In GWM v R [2012] NSWCCA 240 the ratio slightly exceeded 50%. It was regarded as a very significant variation and one which was ultimately disproportionate to the subjective features of the Respondent in that case.
As to whether the circumstances are sufficiently special to justify a variation in the ratio, those circumstances can relevantly include:
1. The subjective case of the offender more generally: R v Simpson (2001) 53 NSWLR 704 ("Simpson");
2. Rehabilitation of the offender: Arnold v R [2011] NSWCCA 150;
3. The risk of institutionalisation: Jackson v R [2010] NSWCCA 162; and
4. Age: Hudson v R [2007] NSWCCA 302.
The Court in GWM had regard to R v Kaliti [2001] NSWCCA 268 ("Kaliti") and R v Kama [2000] NSWCCA 23 ("Kama"). It was observed as an additional matter by Howie J in Kaliti that the reduction in the non-parole period must be purposeful, other than relieving an offender of the burden of serving a minimum sentence of imprisonment as required by the operation of s44 CSPA. [11] That observation was cited with approval in GWM. [12]
In R v Fidow [2004] NSWCCA 172 ("Fidow") it was held that whilst the Court in Simpson identified a wide range of factors capable of constituting special circumstances, nevertheless it is necessary for the sentencing judge to make a decision, as noted in Simpson, that the circumstances are sufficiently special for the statutory proportion to be reduced. [13] It was further observed in Fidow that almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing Judges should ensure that double-counting does not occur. [14]
It is also relevant to note the observation made in GWM, that as a practical matter there are unlikely to be many cases in which the Court will interfere unless the non-parole period was found to be manifestly inadequate or manifestly excessive. [15] I note that this is one such case.
I am mindful of the observations made by the Chief Justice in Kama at [18] that simply because there is present in a case a circumstance which is capable of constituting special circumstance, it does not mean that a sentencing judge is obliged to vary the statutory proportion.
To repeat what was said in Simpson at [68], it is necessary that the circumstance be sufficiently special to justify a variation.
When an offender's history of offending or personal circumstances indicate that he or she would benefit from an extended period of supervision within the community, a finding of special circumstances may be appropriate. [16]
The question is, of course, whether the Respondent in this case will benefit from any extended period of supervision within the community.
In GWM it was observed that the offender's age had little bearing on that question. [17] It is accepted that it is the combination or the cumulative effect of factors which render the circumstances special. In particular, what is necessary is need for supervision in the community for an extended period upon release.
As Wood J, the then Chief Justice in Common Law, in Kaliti said at [13] (and cited with approval in GWM [18] ), where special help or specific assistance is needed which cannot be provided in a custodial setting or where it would be required over an extended period of supervision, then special circumstances may exist.
It is also relevant that, as a high risk offender, the Respondent will receive ongoing close supervision in the community for a period of at least nine months beyond his non-parole period. That supervision order has been suspended whilst the offender is in lawful custody.
Returning to GWM, [19] whilst a finding of special circumstances was both open and appropriate, the extensive variation of the statutory order to just over 50% taken with the quantum of the non-parole period itself demonstrated that disproportionate weight had been given to the subjective circumstance of the respondent: citing R v Ceissman [2004] NSWCCA 466 at [25].
The most recent consideration in GWM has been in Lonsdale v R [2020] NSWCCA 267. In that case the sentencing Judge refused to find special circumstances because his Honour was not satisfied that an extended period on parole would promote rehabilitation. His Honour was not prepared to extend the parole period in the hope that this might take place. The applicant had failed to take advantage of previous opportunities of supervised rehabilitation in the community and the sentencing Judge was not going to allow him any further chances to do so. This was held to be a relevant consideration in determining whether special circumstances ought be found and one that was well open to the sentencing Judge.
I am mindful in this case that there will be some accumulation in arriving at the aggregate sentence for the stalking and touching offences. Accumulation of a sentence upon a pre-existing sentence may constitute special circumstances: Spark v R [2012] NSWCCA 140; Calhoun (a pseudonym) v R [2018] NSWCCA 150 ("Calhoun").
As was noted in Lonsdale, the ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality involved in the offence: citing Calhoun at [30].
[9]
Resolution of the Issue - Special Circumstances
Given my findings on the objective seriousness of the stalking offence and the need for some accumulation with the touching offence to reflect the separate criminality I am require to re-sentence. Accordingly I am required to come to my own view about what, if any, special circumstances exist so as to justify a variation in the statutory ratio without the need to find error in respect of the finding of special circumstances made by the learned Magistrate.
The offender, in my view, has almost no prospects of rehabilitation. He has an extensive criminal record for sexual offences dating back to 1971. He committed further sexual offences in 1975, 1983 and 1987. He breached a Domestic Violence Order in 1994. There was a 15-year non-parole period for his offending in the mid-1990s involving multiple violent sexual assaults. He served all but two of his 20-year sentence.
In April 2011 the Respondent completed a 12-month intensive residential sex offender treatment program known as CUBIT. He has been involved in regular maintenance treatment sessions in the community since that time. During the latter part of 2021 he was consulting with his Correctional Psychologist every six weeks. I have had regard to paragraph 24 of the Sheehan report.
At the age of 70 he continues to reoffend. And whilst the offender did not have the benefit of the five-year parole period, he has been under Court ordered strict supervision since his release. Notwithstanding, he has breached his Extended Control Orders on more than one occasion and has now reoffended in what I regard as a serious way.
His offence on 17 April 2018 was only 14 months after his parole period had expired and only one month after his initial electronic monitoring had ended. The offender's Victim in that case was a 16-year-old girl, working at a supermarket checkout. He reached out to her, placing his hand on her hip, and kissed her on the cheek; a kiss she later described as "slobbery". Although less serious, it was bizarre and in line, in my view, with his sexual dysfunction.
The Respondent pleaded not guilty to the offence captured on CCTV. Although he pleaded guilty to the incident being in breach of his Extended Supervision Order. He was convicted and received a 15-month s. 9 bond which expired on 23 November 2019.
On 21 April 2018 he was charged with breaching his Extended Supervision Order. Again, he was detained in custody. He was later sentenced to imprisonment for four months from 21 April 2018 to 20 August 2018. He appealed against the severity of that sentence. The order was confirmed.
His breach of the Extended Supervision Order regarding a sex worker, although not of itself particularly concerning, shows an attitude that he is not complying with supervision, which is extremely worrying. It is telling that he committed the offence on 17 April 2018 in the context of regular visits from the Community Corrections staff on 8 and 21 April 2018, respectively. He lied to his supervisor about his breaches. It is also noted that he lied to the sex worker about his past offending, not enabling her to make an informed choice about whether she wanted to be in his presence. He significantly understated his past criminal offences.
The Respondent committed these latest offences having had the experience of: a very long term of imprisonment; a twelve month intensive treatment program; a later four month sentence for breaches on his Extended Supervision Orders; and ongoing psychological treatment, the preparation for which included an assessment by a psychiatrist. Notwithstanding, he appears to have developed almost no insight. He does not seem able to resist his urges and will act on them if circumstances permit.
That said, I accept that his latest period of imprisonment has again caused him to reflect on why he offends and I accept as genuine his statements to attempt to live an offence free life going forward. Whether or not he can do so remains to be seen.
His history and acts on release from gaol tell against his rehabilitation and make him a high risk to community safety. Indeed, even before these offences were committed Wilson J described the Respondent as "a serious sex offender who poses a risk to the community". [20] Consistent with that view, Mr Sheehan, psychologist, found that he focussed upon "implausible motivations and avoiding acknowledging deviancy". That risk of sexual offending, even with close supervision, has now realised. Those matters speak against him benefiting from an Extended Supervision Order on parole.
So far as his ability to serve his sentence in custody is concerned, the Respondent has no apparent age-relative cognitive decline. Although he has been diagnosed with an adjustment disorder and depressive disorder, he does not suffer from other mental health issues that would make his time in custody more onerous. He has no current health complaints and is prescribed no medications. He is still able to work and has no plans to retire on his release. He has no apparent substance abuse issues. He has no phone contact with anyone in custody. In that sense COVID has not impacted on his social interaction with family or friends.
However, I agree with Mr Sheehan that it is likely that the Respondent's experience of prison is more onerous than that experienced by most prisoners. Indeed, his time in custody has been particularly arduous. This is not surprising given his history of offending. It does, however, include punishment that is not sanctioned by the State.
The Respondent is managed in non-association, segregated from other inmates. He has no yard access; but was afforded exercise in the past in a small cage adjacent to his cell. This depends on the weather. The Respondent's unchallenged evidence was that he has been given this access only once every nine days for two to three hours and sometimes less. I regard that as cruel and unusual punishment.
In his earlier prison, when he did venture out, the Respondent was relentlessly abused and threatened by other inmates in his immediate area. Again, I regard that as wholly unsatisfactory. He is of the view that they suspected that he was either a police officer or a paedophile. There is little doubt this was a source of anxiety for him, and, indeed, an experience he should not have had to tolerate.
That situation has improved in his latest change of prison. However, this is because he has almost no other human contact, other than to receive his food and supplies. He is, understandably, extremely lonely. Whilst that might be unavoidable, it is a matter that I regard as cruel and unusual punishment.
I am mindful that the learned Magistrate was asked on behalf of the Respondent to take the Respondent's conditions of custody into account when determining the length of sentence, [21] and this ought not be double-counted in the consideration of special circumstances. I have also done so, but I accept that some consideration needs to be given to those matters that I have set out in setting an appropriate ratio.
The Respondent has no access to institutional employment, programs or other support. Mr Sheehan is of the view, and I accept, that this will escalate his depression over time and where he is, effectively, untreated. Indeed, this is consistent with the Respondent's experience; he has lost weight, he is stressed and his mental health is deteriorating.
I am prepared to grant special circumstances for the following reasons:
1. Despite his low prospects of rehabilitation, there were some positive aspects to his evidence and his desire for reform. Accordingly, there is at least a residual need for the Respondent to be supervised for an extended period in the community on parole to direct any rehabilitation, including where there is a relatively short sentence.
2. The Respondent is serving his sentence in very onerous conditions.
3. There is a risk, albeit slight given the length of the sentence, that the Respondent will become further institutionalised.
4. An aggregate sentence with some accumulation can found special circumstances.
5. Given the nature of the Crown appeal, and in light of the Crown's concession that some variation is appropriate, procedural fairness dictates such a variation.
I grant special circumstances on the re-sentence, determining a 66% ratio between the non-parole period and the head sentence.
[10]
Totality
Where I am required to re-sentence and intend imposing an aggregate sentence, matters of totality are important, not only with respect to the two offences in question, but in respect of earlier imprisonment, so as not to impose a crushing sentence, and to have regard to any risk of any institutionalisation. What is ultimately required is to give due regard to the total criminality before the Court: R v Merin [2007] NSWCCA 255.
[11]
Orders
I make the following orders:
1. The appeal is allowed.
2. The convictions are confirmed.
3. The sentence of the Respondent in the Local Court is quashed.
4. For the stalking offence I indicate a term of imprisonment of 12 months.
5. For the sexual touching I indicate a term of imprisonment of two years.
6. I impose an aggregate sentence of two years and six months, with a non-parole period of one year and eight months. It will date from 7 January 2022 and expire on 6 July 2024. The Respondent will be eligible for release to parole on 6 September 2023.
[12]
Endnotes
Tcpt, 5 May 2022, p 22.
Ibid, p 16.
Ibid, p 22.
Ibid, p 15.
Ibid, p 15-16.
Ibid, p 21-22.
Ibid, p 16.
Ibid, p 18.
Ibid.
Ibid, p 22.
At [21].
At [114].
At [22].
At [18].
At [105].
Collier v R [2012] NSWCCA 313.
At [109].
At [114].
At [119].
State of New South Wales v Kay [2018] NSWSC 1235 at [7].
Ibid, 14.
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Decision last updated: 07 March 2023