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Representation: Counsel R Christensen (Appellant) J Campbell (Respondent)

Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent)

File Number: ACTCA 58 of 2019

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 11 December 2019 Case Title: R v Lindsay Citation: [2019] ACTSC 347

THE COURT

The appeal

1. On 11 December 2019, Elkaim J (the sentencing judge) sentenced the respondent to two years’ imprisonment for the offence that, on 19 March 2019, he engaged in sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). His Honour set a nonparole period of 17 months’ imprisonment: R v Lindsay [2019] ACTSC 347 (Lindsay).

2. The respondent entered a guilty plea prior to criminal case conferencing, for which the sentencing judge allowed a 20 per cent discount, i.e. the starting point for the sentence was two years and six months’ imprisonment.

3. The offence carries a maximum penalty of 12 years’ imprisonment.

4. The Crown appealed on the ground that the sentence was manifestly inadequate.

The offence

5. At the time of the offence, the respondent and the complainant were staying in a hostel. Their allocated beds were in the same 10-bed mixed-gender dormitory room. On the morning of the offence, the respondent and the complainant met and had a coffee together.

6. In the early afternoon, the complainant returned to the dormitory room and fell asleep on her bed. She was woken by the respondent. He indicated that the complainant should be quiet. He asked for a kiss, but she refused. The respondent asked whether he could massage the complainant and began to rub her shoulders. She told him to “go away”.

7. The respondent then straddled the complainant while she was on her back and attempted to pull down her top and bra. She tried to push him away and made it clear that his actions were unwelcome. The respondent grabbed the complainant by the throat and pushed her down into the bed. The complainant was fearful and said to the respondent, “if I do this, you won’t hurt me?” to which the respondent responded that he would not.

8. The respondent told the complainant to remove her underwear, and she did. He attempted penile-vaginal intercourse, without success. The complainant then assisted him. The respondent engaged in penile-vaginal sexual intercourse and ejaculated. He did not use a condom.

9. The complainant left the room and made an immediate complaint.

Evidence before the sentencing court concerning the respondent

10. The respondent was 39 years old at the time of the offence. For many years, he had been unemployed and in receipt of a disability pension for a mental health disability. He has lived a transient lifestyle.

11. The respondent’s criminal record is lengthy.

12. On many occasions the NSW courts have conditionally discharged the respondent under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (conditional discharge of a mentally ill person), or referred him for a mental health assessment under s 33(1)(b) of the Act (detention for assessment of mental illness).

13. Prior to the present offence, he had not been convicted of sexual offending, but he had been convicted of numerous offences involving violence.

14. In May 2016, the respondent was sentenced to 12 months’ imprisonment with a three-month nonparole period for offences of common assault and contravening a domestic violence order. In December 2016, he received a sentence of 12 months’ imprisonment with a nine-month nonparole period for contravening a domestic violence order. In 2018, he was called up for breach of a bond relating to a 2016 offence of maliciously damaging property and received a nine-month sentence with a four-month nonparole period.

15. For offences of common assault and maliciously damaging property committed in December 2018, he was sentenced to a total of 10 months’ imprisonment from 7 January 2019, with a two-month nonparole period. The sentencing court recommended that he receive mental health treatment while in custody.

16. On 6 March 2019, the respondent was released from custody in New South Wales. He travelled to Canberra, where he had no friends or associates. Upon his release in the ACT, he will be extradited to NSW to serve the remainder of the NSW sentence (a period of about seven months).

17. In 2000, the respondent was diagnosed with treatment-resistant paranoid schizophrenia. On many occasions, he has been hospitalised in NSW for mental health treatment.

18. The respondent told the author of the pre-sentence report that, at the time of the offence, he had been experiencing auditory and visual hallucinations. He had little recollection of the offence and little insight into the impact on the complainant. The author of the pre-sentence report assessed the offender as at medium to high risk of general reoffending. She said that he had “complex mental health issues that consist of engagement and monitoring requirements that range beyond the scope of care associated with ACT Corrective Services”.

19. Initially while in custody, the respondent experienced paranoid delusions, displayed a “fixation on female staff”, and exhibited “aggressive, threatening behaviour towards staff”. He was transferred to the Dhulwa Mental Health Unit and placed on a psychiatric treatment order. During the period of several months that he spent at Dhulwha, the respondent was medicated with clozapine and monitored. When the respondent returned to the Alexander Maconochie Centre (AMC), his behaviour was much improved; he behaved appropriately towards all corrections staff. Within the AMC, the respondent’s mental health difficulties have limited his capacity to participate in programs and restricted his accommodation options.

20. Dr Furst, a forensic psychiatrist, provided a report to the sentencing court. He said that the respondent had been diagnosed with schizophrenia when he was 20 years old. When unwell, he displayed symptoms that included mood disturbance, paranoid delusions, auditory hallucinations, thought disorder, and bizarre and aggressive behaviour. Dr Furst opined that, as the respondent had not been taking antipsychotic medication at the time of the offence, it was probable that he had been suffering from symptoms of schizophrenia. Dr Furst said that the respondent’s ability to think clearly and consequentially would have been impaired, although he would have been aware that his actions were wrong, and he would have had the capacity to control himself.

21. Dr Furst stated that the custodial environment would be onerous for the respondent because he would probably be exposed to violent incidents that would exacerbate his anxiety and destabilise his illness. Further, within the prison environment, the respondent would have limited access to appropriate psychiatric services.

22. Dr Furst said that the respondent was at low to moderate risk of sexual reoffending. Stabilisation of the respondent’s mental health was of central importance to reducing the risk of sexual offending.

Sentencing judge’s decision

23. In submissions to the sentencing judge, the prosecutor accepted that, because of the respondent’s mental illness, less weight should be given to the sentencing purposes of general and specific deterrence, but submitted that the protection of the community was “one of the primary considerations that the Court needs to consider”. The prosecutor accepted that stabilisation of the respondent’s condition enhanced community safety but noted that, given the respondent’s difficulty in coordinating his own treatment, there was a risk that his condition would deteriorate when he was released into the community.

24. In relation to the respondent’s mental health, the sentencing judge said at [11]–[17]:

The offender has serious mental health issues. He has a diagnosis of treatment resistant paranoid schizophrenia. He has had frequent hospitalisations in New South Wales for mental health treatment. He is currently under a psychiatric treatment order which will expire in March next year. … There is a report from a psychiatrist, Dr Furst, who was asked whether the offender’s mental impairment had an “impact on his ability to exercise appropriate judgement”, and if a sentence of imprisonment would be more burdensome upon him compared to a person without a similar mental condition. In relation to the first question the doctor said that his mental illness, including cognitive defects, would have impaired his capacity to appreciate the seriousness of his offending. As to the second question, the doctor thought that incarceration would be detrimental because of the exposure he would have to violent incidents and the lack of appropriate psychological and psychiatric services. Dr Furst also thought the offender had a low to moderate risk of reoffending. He said that “stabilisation of his mental health will be of central importance in reducing his risk of sexual offending”. Cross-examination of the author of the presentence report revealed an improvement in his condition. It is apparent he shows more insight into his offending. Both parties agreed that the offender’s mental health conditions should be taken into account in accordance with the principles set out in R v Verdins [2007] VSCA 102; 16 VR 269. In particular, his moral culpability is reduced and there is a lesser call for general deterrence.

25. The respondent’s counsel had submitted that the sentencing judge should take a similar approach to that taken in R v MT [2014] ACTSC 162 (MT) but factoring in the “Verdins principles” (a reference to R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins)). In MT, Refshauge J had imposed a sentence of two years’ imprisonment with a nine-month nonparole period: see below at [42].

26. However, his Honour agreed with the prosecutor’s submission that the objective features of the offence made it more serious than that in MT: in the present case, the complainant had been awake and had had to plead for her safety: Lindsay at [18].

27. In setting the nonparole period, the sentencing judge remarked that, despite his poor criminal record, the respondent had prospects of rehabilitation, was “relatively young” (although he was 39 years old), and was receiving mental health treatment in custody that would continue to benefit him: at [19].

Principles applying to Crown sentence appeals alleging manifest inadequacy

28. The principles applying to a Crown sentence appeal alleging manifest inadequacy have been set out in many cases including, recently, R v Rappel [2019] ACTCA 11 at [10]– [12], R v Nicholas; R v Palmer [2019] ACTCA 36 at [66]–[68], and R v UG [2020] ACTCA 8 at [41]–[43].

29. These cases reinforce the proposition that an appeal court must respect that a sentencing judge exercises a wide sentencing discretion. A Crown appeal against the inadequacy of a sentence should be instituted sparingly but may be appropriate where a sentence is so manifestly inadequate as to demonstrate “error in principle” or for the purpose of providing “governance and guidance” to sentencing courts. In R v Duffy [2014] ACTCA 53, the Court said at [60]:

In prosecution appeals, the focus must remain firmly on the question of whether there has been an error of principle.

Was the sentence manifestly inadequate?

30. The Crown submitted that the sentence:

(a) prioritised the subjective circumstance of the respondent’s mental impairment and failed to reflect the objective seriousness of the offence;

(b) was inconsistent with the sentences imposed in comparable cases; and (c) failed to adequately recognise sentencing purposes such as the need for adequate punishment, denunciation and the need to protect community safety.

31. We have concluded that, neither when they are considered individually nor when they are considered collectively, does a proper approach to these matters establish that the sentence was manifestly inadequate.

Objective seriousness

32. A sentence must be proportional to the objective seriousness of the offence, and an offender’s subjective features, while important, “cannot justify the imposition of a sentence [that] does not adequately reflect the objective seriousness” of the offending behaviour: R v Miller [2019] ACTCA 25 (Miller) at [37].

33. The following considerations informed the objective seriousness of the offence:

(a) it was poorly planned and opportunistic;

(b) it was of short duration (according to the complainant, the intercourse lasted a minute), although an offence of short duration may nevertheless be objectively serious: Miller at [35] approving R v Daley [2010] NSWCCA 223 at [48];

(c) it occurred in the complainant’s bed, where she was entitled to feel safe, but it was not at her usual home or in an isolated environment: Dionnet v The Queen [2009] NSWCCA 85 at [24];

(d) it was accompanied by violence, although there was no physical injury;

(e) it was penile-vaginal penetration and the respondent ejaculated inside the complainant;

(f) the respondent did not use a condom: MT at [39];

(g) the complainant had firmly rejected the respondent’s advances;

(h) the complainant had made it clear to the respondent that she feared for her safety by asking him “if I do this, you won’t hurt me?”;

(i) the offender and the complainant were virtually strangers, having had only a passing prior acquaintance: R v SV [2016] ACTSC 211 at [13];

(j) there was a causal connection between the respondent’s schizophrenia and the commission of the offence, reducing the respondent’s moral culpability for the offence.

34. In Elturk v The Queen [2014] NSWCCA 61; 239 A Crim R 584 (Elturk), the Court of Criminal Appeal (Beazley P, with whom RA Hulme and Schmidt JJ agreed) referred to the discussion of the relevance of mental impairment to sentencing in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 (Muldrock), before approving a passage in McLaren v The Queen [2012] NSWCCA 284 at [27]–[29], (McCallum J, McClellan CJ at CL and Bellew J agreeing) to the effect that an assessment of the “moral culpability” of offending could be equated to an assessment of the “objective seriousness” of the offence. In Elturk, the Court affirmed that, if mental impairment has a causative influence on the offending conduct, then that impact should be considered: at [35].

35. Adopting the approach to causal connection and moral culpability in Muldrock at [54], in Ngata v The Queen [2020] ACTCA 18 at [21], this Court said:

In order to find that an offender’s moral culpability is lessened, there must be a real or causal connection between the mental impairment and the offending. It may be made out by evidence which establishes that the offender’s mental impairment affected his ability to appreciate the wrongfulness of his conduct, obscured his intent to commit the offence, impaired his ability to make calm and rational choices or to think clearly at the relevant time. (citations omitted)

36. The import of these decisions is that, generally, where an offender’s mental impairment has had a causative influence on offending behaviour, the offender’s moral culpability and hence the objective seriousness of the offence are moderated. An obvious exception to this general proposition is self-induced mental impairment, e.g. through the voluntary ingestion of drugs. At the same time, mental impairment may inform other matters relevant to fixing an appropriate sentence, such as the offender’s ability to cope with imprisonment and the sentencing purposes that are invoked in the particular sentencing exercise.

37. At the sentencing hearing in this matter, Dr Furst’s evidence was uncontradicted. Based on that evidence, the sentencing judge was entitled to conclude that the respondent’s mental illness would have impaired his judgement and capacity to appreciate the seriousness of the offending behaviour, i.e. that there was a causal connection between the mental condition and the offending conduct, reducing the respondent’s moral culpability and the objective seriousness of the offence.

38. The sentencing judge’s reasons do not suggest that his Honour treated the offence as anything other than objectively serious, albeit that it was attended by reduced moral culpability on the part of the respondent. In his reasons, his Honour referred to the facts supporting each of the considerations referred to at [33] above. Inferentially, his Honour took each consideration into account.

39. On the appeal, the Crown erroneously characterised the respondent’s mental impairment as a subjective circumstance. It was also a factor that reduced the objective seriousness of the offence.

Comparable cases and “sentencing range”

40. On the appeal, the Crown submitted that the sentencing judge had treated MT and current sentencing practice in general as determinative or “controlling” of the appropriate sentence, rather than as one factor that was relevant to the “instinctive synthesis” of an appropriate sentence: Director of Public Prosecutions v Dalgliesh (A Pseudonym) [2017] HCA 41; 262 CLR 428.

41. During the sentencing hearing, both parties invited the sentencing judge to consider MT.

42. In MT, a jury convicted the offender of engaging in penile-vaginal intercourse without consent, contrary to s 54(1) of the Crimes Act. Refshauge J imposed a sentence of two years’ imprisonment, with a nonparole period of nine months. The offender and the complainant had met shortly before the incident. They were staying at the same residence. The complainant had acted flirtatiously. The complainant went to sleep. She awoke to find the offender engaging in intercourse. He was not wearing a condom. After the complainant woke up, the offender continued the sexual intercourse. The complainant froze. In sentencing the offender, Refshauge J considered the offender’s youth (he was 19 years old), lack of criminal record and “excellent prospects of rehabilitation”: at [87].

43. In the present case, the sentencing judge characterised the offence as having objective features that made it more serious than those in MT, and referred to the fact that the complainant had been awake and had had to plead for her safety: Lindsay at [18]. It is clear from his Honour’s reasons that he did not use MT as determinative of the sentence that should be imposed.

44. On the appeal, the Crown referred to the following decisions of single judges.

45. In R v Punna-Ophasi (ACT Supreme Court, Burns J, 5 October 2012), the offender was found guilty of sexual intercourse without consent and assault with intent to have intercourse. The offender had been a guest at the complainant’s apartment. After she asked him to leave and locked herself in the bedroom, he slammed the door to make it appear that he had left and remained in the living room. When the complainant opened her bedroom door, the offender pushed her back into the bedroom and forced her to have sexual intercourse. At the time of the offence, the offender was 21 years old. For the offence of sexual intercourse without consent, he was sentenced to three years and eight months’ imprisonment.

46. In R v Taylor [2015] ACTSC 43, Refshauge J sentenced the offender to 2 years’ imprisonment (from a starting point of two years and three months’ imprisonment, discounted by virtue of the guilty plea), to be suspended after the offender had served six months’ imprisonment. The offender and the complainant had attended a party. After the complainant fell asleep on a couch, the offender digitally penetrated her. Because of the complainant’s intoxication, without the offender’s admission of guilt he could not have been prosecuted. The offender had a criminal record for driving offences. He was remorseful.

47. In R v Aroub [2017] ACTSC 187, a jury found the offender guilty of the offence of sexual intercourse without consent, being a brief, impulsive act of digital penetration that had commenced while the complainant was asleep. At the time of the offence, the offender was 25 years old. He had experienced a traumatic upbringing and suffered from depression. He had a criminal history for less serious matters and no prior history of committing sexual offences. He had been on conditional liberty at the time of the offence. Murrell CJ sentenced him to two years’ imprisonment, suspended after six months upon entering a good behaviour order.

48. In R v Stevens (No 3) [2017] ACTSC 297, Mossop J sentenced the 37-year-old offender, following a jury trial, on four counts of engaging in sexual intercourse without consent, including two acts of digital penetration that his Honour described as involving “physical domination over a person who has expressly not consented”: at [20]. The incident occurred in the complainant’s home, near to her children and in circumstances where the offender had “[exploited] the kindness of the complainant in looking after him when he became intoxicated at a friend’s house”. The offender had a substantial criminal history but had not previously committed sexual offences. On each of the two counts of digital penetration, the offender was sentenced to three years’ imprisonment, wholly concurrent.

49. In R v Bourke [2018] ACTSC 5 (Bourke), Elkaim J sentenced the offender following a plea of guilty to two years’ imprisonment for attempted sexual intercourse without consent (fellatio). At the same time, he was sentenced for related offences of violence. He had acted in a drug-induced psychosis. He was remorseful. He was 33 years old and had a criminal history.

50. The Crown referred to the following decisions of the Court of Appeal.

51. In R v King [2008] ACTCA 12, the Crown successfully appealed against the inadequacy of a sentence for sexual intercourse without consent. The sentence was increased from two years’ imprisonment (discounted from a starting point of three years and six months’ imprisonment) to four years’ imprisonment (discounted from a starting point of five years’ imprisonment). Late at night, the offender had followed the complainant, a stranger, to her home and entered the home. The complainant had woken up to find the offender engaging in penile-vaginal intercourse. The offender had an “appalling” criminal history, including convictions for sexual offending, burglary, and assault: at [3]. He had a “suspected cognitive deficit” but the evidence did not establish that he suffered from significant mental impairment: at [13].

52. In R v Buda-Kaa [2013] ACTCA 46, the Court dismissed an appeal against the inadequacy of a sentence of three years’ imprisonment for sexual intercourse without consent, describing it as “lenient” but not manifestly inadequate: at [29]. In the early hours, the offender had entered the complainant’s residence where she and her children were sleeping. While the complainant was still asleep, he had digitally penetrated her. The sentencing judge had found that the offender’s schizophrenia did not reduce his moral culpability.

53. In Miller, the Court of Appeal determined that a sentence imposed for an offence against s 54(1) of the Crimes Act should not have been fully suspended. During her work as an escort, the complainant had been subjected to violence and repeated digital penetration of her anus by a client despite her clear statements she did not consent to such conduct. The respondent was 40 years old and had entered an early plea of guilty. He had a significant criminal history, although it contained no convictions for sexual offending. He had been assessed as posing a high risk of general reoffending. The Court characterised the objective seriousness of the offence as “in the midrange”, accepted that the sentence of two years’ imprisonment was appropriate, but said that respondent should have been required to serve a period of at least six months’ full-time imprisonment: at [45].

54. The Crown referred to two NSW authorities.

55. In Elwood v The Queen [2019] NSWCCA 315, the offender had pleaded guilty to one count of sexual intercourse without consent and one count of contravening an apprehended domestic violence order (ADVO). The offender had been in a relationship with the complainant and was subject to an ADVO, protecting the complainant. During consensual sexual intercourse, the offender had touched the complainant’s bottom. She told him to stop but he penetrated her anus and she screamed in pain. The offender had an intellectual disability that reduced his moral culpability and would make a custodial sentence more onerous. The Court of Criminal Appeal accepted that a discount of 15 per cent was appropriate for the pleas of guilty and resentenced the offender to an aggregate sentence, with an indicative sentence of three years’ imprisonment for the offence of sexual intercourse without consent.

56. In Badans v The Queen [2012] NSWCCA 97 (Badans), a jury found the offender guilty of one count of sexual intercourse without consent. The offender and the complainant had been at a party. The offender had entered a bedroom in which the complainant was sleeping and had engaged in penile-vaginal intercourse without a condom, ejaculating into the complainant’s vagina. The Court accepted a finding by the sentencing court that the offender’s intellectual disability had made a limited contribution to the commission of the offence and reduced his moral culpability. A sentence of three years’ imprisonment was confirmed on the basis that it was “at the low end of the range of sentence for this offence” but was not manifestly inadequate: at [77].

57. These NSW authorities are of limited relevance because, in NSW, the maximum penalty for the offence of sexual intercourse without consent is 14 years’ imprisonment (Crimes Act 1900 (NSW) s 61I), the offence is subject to a standard nonparole period (for offences in the middle of the range of objective seriousness), and sentencing patterns and practices differ from those in this jurisdiction.

58. The somewhat comparable cases to which the Crown referred involved sentences for which the starting point was between two years’ imprisonment and five years’ imprisonment. Far from establishing that the sentence in this case was manifestly inadequate, these cases show that, while lenient, the sentence starting point of two years and six months’ imprisonment was consistent with the starting points for the sentences that were imposed in somewhat comparable cases.

59. Importantly, of the cases to which we were taken, Badans was the only case in which the sentencing court made an express finding that a mental impairment had reduced the offender’s moral culpability. In relation to Bourke, we infer that there was a causal relationship between the offender’s psychotic condition and the offence but that, as the psychotic condition was drug-induced, the causal relationship did not affect moral culpability.

60. The sentences imposed in other cases must be considered in the context that, in Lindsay at [17], the sentencing judge found that the respondent’s mental condition reduced his moral culpability. On appeal, the Crown did not contest that finding. At the time of the offence, the respondent’s judgment and capacity to think clearly were impaired by long-standing and relatively severe schizophrenia. His mental condition had not been induced by the voluntary taking of drugs. Where there is a causal relationship between mental impairment and offending behaviour and an associated reduction in moral culpability, that factor is relevant to a determination of the objective seriousness of the offence.

61. The sentence was not inconsistent with sentences imposed in comparable cases.

Sentencing purposes

62. The Crown submitted that the sentence failed to adequately acknowledge relevant sentencing purposes, including personal deterrence, denunciation, and recognition of harm.

63. Mental illness may inform a variety of sentencing purposes.

64. Offenders who are mentally ill or mentally impaired may be inappropriate mediums for making an example to others; the retributive effect of a heavy sentence on such an offender may be considered to be inappropriate to the offender’s disadvantaged situation: Muldrock referring to R v Mooney (Victorian Court of Criminal Appeal, 21 June 1978) (Mooney) at 5 and 8. However, there will be cases involving offenders who suffer from mental impairment where general deterrence remains a relevant sentencing purpose: Millard v The Queen [2016] ACTCA 14 at [29]–[34], referring to Muldrock at [53]–[54] and other authorities.

65. If there is a need to protect society because of the nature of the mental illness, that consideration may result in a longer sentence (although the sentence must be proportionate and cannot amount to preventative detention): Veen v The Queen (No 2) (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson, and Toohey JJ at 473—474.

66. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177] McClellan CJ at CL summarised the correct approach to the application of sentencing purposes when sentencing an offender who suffers from a mental illness or impairment, as follows:

… • Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. • It may reduce or eliminate the significance of specific deterrence. • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public. (citations omitted)

67. The sentencing judge did not refer to the sentencing purpose of denunciation or whether, in his Honour’s view, the offender’s reduced moral culpability meant that there was a reduced need for denunciation. However, the sentence was consistent with such an approach.

68. In Lindsay at [17], the sentencing judge said that the respondent’s mental condition lessened the significance of the sentencing purpose of general deterrence. His Honour’s statement was a recognition of the well-established approach that mental illness or impairment may render an offender a less appropriate vehicle for a message of general deterrence.

69. In this case, personal deterrence was a relevant sentencing consideration. Past sentences had not deterred the respondent from engaging in criminal conduct, including offences of violence. In the sentencing judge’s reasons, his Honour referred to the respondent’s “long and extensive criminal record in New South Wales”: at [12]. As criminal history is very relevant to the sentencing purpose of personal deterrence and there is nothing to suggest otherwise, we infer that the sentencing judge considered the sentencing purpose of personal deterrence.

70. At the sentencing hearing, the prosecutor submitted that the need for community protection was an important sentencing consideration. We agree that community protection was a relevant consideration; the respondent has a significant history for offences of violence and this offence was associated with violence and the assertion of power. While the sentencing judge did not refer expressly to any need for community protection, we infer that he considered the prosecutor’s submission.

71. Prior to the offence, the respondent had no criminal history for sexual offending. Unsurprisingly, neither at first instance nor on appeal did the Crown submit that the respondent’s condition was intractable such that there was a need to protect society from future sexual offending.

72. The sentencing judge found that the offender had some prospects of rehabilitation: at [19]. However, the imposition of a relatively long nonparole period (71 per cent of the sentence) shows that his Honour was not optimistic about the prospects.

73. The synthesis of sentencing considerations, including sentencing purposes, is notoriously difficult as it usually involves competing and conflicting considerations. There is no basis to find that the sentencing judge erred in his approach to relevant sentencing purposes.

Discretion to resentence

74. As the appeal should be dismissed for other reasons, it is unnecessary to consider the resentencing discretion.

75. However, we note that the Crown conceded that a factor that was relevant to the exercise of the discretion was that, upon the respondent’s release from custody in the ACT, he will be taken into custody in NSW to serve the remainder of the sentence imposed in that jurisdiction, a period of about seven months.

Order

76. Appeal dismissed.

I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Acting Justice Crowe.

Associate:

Date: