R v Nykolyn

Court of Criminal Appeal (NSW)|2012-08-17|Before: McClellan CJ, Hall J, Hulme J, Clellan CJ

Judgment 1McCLELLAN CJ at CL: On 17 August 2012 this Court unanimously dismissed the Crown's appeal against the sentence of the respondent, Daniel Nykolyn. Reasons for the decision to dismiss the appeal were reserved. I set out my reasons below. 2The respondent pleaded guilty to the following offences: 1.Break and enter with intent to steal in circumstances of aggravation, contrary to s 113(2) of the Crimes Act 1900 (the aggravation pleaded was that the respondent knew that there was a person present within the said dwelling house). The maximum penalty for this offence is 14 years. 2.Break and enter and commit a serious indictable offence, namely stealing, contrary to s 112(1)(a) of the Crimes Act 1900. The maximum penalty for this offence is 14 years. 3.Enter dwelling house with intent to commit a serious indictable offence (stealing) in circumstances of aggravation, contrary to s 111(2) of the Crimes Act 1900 (the aggravation pleaded was that the respondent knew that there was a person present within the said dwelling house). The maximum penalty for this offence is 14 years. 4.Break and enter and commit serious indictable offence, namely stealing, contrary to s 112(1)(a) of the Crimes Act 1900. The maximum penalty for this offence is 14 years. 3There were two Form 1 documents. The first of the Form 1 documents included an offence of enter building with intent contrary to s 114(1)(d) of the Crimes Act, which carries a maximum penalty of 7 years imprisonment, together with an offence of enter dwelling house with intent to steal in circumstances of aggravation, contrary to s 111(2) of the Crimes Act 1900 (the aggravation pleaded was that the respondent knew that there was a person present within the dwelling house). This offence carries a maximum penalty of 14 years imprisonment. 4The sentencing judge indicated that he had regard to these two offences when dealing with count 3. 5The second of the Form 1 documents included 4 offences, namely, disposal of stolen property, contrary to s 189 of the Crimes Act 1900; furnish false statement contrary to s 15(4) of the Pawnbrokers and Second Hand Dealers Act 1996; and two counts of having custody of unlawfully obtained goods contrary to s 527C(1)(a) of the Crimes Act 1900. The sentencing judge had regard to these offences when sentencing in relation to count 1. 6A statement of agreed facts was tendered to the sentencing judge. Although his Honour did not set it out in his remarks on sentence, it may be comfortably assumed that he had regard to it. A summary of the facts has been prepared by the Crown for the purpose of this appeal, which I gratefully adopt.

7Count 1, the offence of aggravated break and enter with intent to commit a serious indictable offence, occurred at approximately 10.30 pm on 27 February 2011 at residential premises situated in Redfern. The premises are situated on the first floor of a complex which also consists of a number of shops at street level. The sole occupant of those premises was Ms Letwin Jumbi, a 27 year old woman. On the evening in question Ms Jumbi was sitting at a table in the combined lounge dining room of her apartment working on her computer when she heard a noise coming from her bedroom. She looked up to see the respondent standing approximately 3 metres away from her. She observed that the respondent was wearing white gloves. Ms Jumbi told the respondent to take whatever he wanted and not to hurt her. She then started screaming. The respondent ran towards the front door and left the apartment. 8Unbeknown to Ms Jumbi, shortly before she encountered the respondent in her apartment, a neighbour had observed him climb up a tree to the awning adjoining the apartments and walk along the awning, peering into the apartments. The neighbour rang the police, who arrived to find Ms Jumbi screaming. Ms Jumbi told the police that the respondent had just left and indicated the route that he took. The police saw the respondent on Cope Street and gave chase. The respondent ran into the fire escape of a building and locked the door behind him. The police were unable to locate the respondent, however upon re-tracing their steps they found a glove that the respondent had discarded as he ran. No property was taken by the respondent from Ms Jumbi's apartment. The respondent was later identified by Ms Jumbi by way of a photo identification procedure. 9Count 2, the offence of break and enter and commit a serious indictable offence occurred on the evening of 24 February 2011 at residential premises situated at Arthur Street, Randwick. The premises are located on the first floor at the rear of a multi-storey unit complex. At about 6.20 pm that evening, Ms Rachel Hoskins left her apartment, closing the windows and locking the doors as she went. When she returned later that evening she noticed that a large quantity of her property was missing. Missing items included jewellery, a camera, a computer, an iPod, shoes, underwear, perfume and other personal items. The police conducted a fingerprint examination of the premises and located a fingerprint on the window frame in the bedroom. The fingerprint was subsequently analysed and found to match the fingerprint of the respondent. 10Count 3, the offence of aggravated enter dwelling with intent occurred at approximately 3.00 am on Tuesday 1 March 2011 at residential premises situated at Baptist Street, Redfern. The premises consist of a two-storey terrace house which, at the time, was occupied by Mr Maximillian Raeder and three flatmates. Mr Raeder occupied a bedroom with a balcony that faced the street. At about 3.00 am Mr Raeder woke up to find the respondent in his bedroom sifting through the drawers of a low-boy. The respondent turned, looked at Mr Raeder and then ran out of the balcony door. He then jumped down into the front yard and ran in a northerly direction along Baptist Street. As he ran from the room he knocked Mr Raeder's computer to the ground. Mr Raeder subsequently discovered that the respondent had stolen his mobile phone, his watch and a pair of sunglasses. He also discovered that his computer was damaged and no longer worked. Mr Raeder subsequently identified the respondent in a photographic line up. 11Count 4, the offence of break and enter and commit serious indictable offence occurred during the early hours of 2 March 2011 at residential premises situated at Burton Street, Darlinghurst. The premises are located on the second floor of a complex with a balcony overlooking a rear laneway. The premises were occupied by Mr Michael Young. Mr Young left the unit at 10.30 pm on Tuesday 1 March 2011, locking all doors and windows behind him. When he returned to the unit the following day at 10.30 pm he found a black backpack on the balcony which contained a number of items belonging to a neighbour who also resided in the complex. (This relates to Item 1 on the first Form 1 - the charge of enter building with intent). Mr Young reported the matter to the concierge of the complex who looked through CCTV security footage that showed the respondent climbing onto balconies at the complex at 3.45 am on 2 March 2011. The respondent stole a number of items from the unit including two laptop computers, a camera lens, various DVD's and a number of towels and wash cloths. 12At about 11.30 pm on Wednesday 2 March 2011, police officers patrolling the Redfern area pulled over a vehicle being driven by the respondent's sister. The respondent was seated in the rear seat of the vehicle. He was placed under arrest and searched. He was found to be in possession of property including a mobile phone, a camera, two phone chargers and a number of DVDs and CDs. At that time the respondent declined to take part in a record of interview. 13On 6 June 2011 the respondent agreed to take part in a record of interview and admitted to committing the offence at Arthur Street Randwick. He stated that he went to Randwick for the purpose of finding a place to break into. He said he chose those premises because they were private and because there were no security cameras. He said that he "scoped" the property, then climbed up the balconies and checked the windows from the balcony before placing all the items in a backpack. He said that he later sold the items for cash.

14Item 2 in the first Form 1 document is a charge of aggravated enter dwelling with intent. At about 10 pm on 1 March 2011, the respondent climbed onto the first floor balcony of a residential complex at Anzac Parade, Kensington. At the time, the occupant, Mr Tamanumulliag was having dinner in his living room with a friend when he heard a noise coming from his bedroom. He walked into the bedroom and saw the respondent standing in the doorway wearing white gloves. The respondent lunged towards Mr Tamanumulliag and then ran from the apartment, taking with him a wallet containing cash and other personal items. Mr Tamanumulliag's laptop was later located in the balcony floor. The respondent was subsequently identified in a photographic line up. 15The second Form 1 document contains 4 offences. The first two offences occurred on 11 February 2011, when the respondent attended a pawn shop and disposed of an Oris brand watch that had been stolen from residential premises at Glenmore Road, Paddington on 7 February 2011. The respondent also signed a pledge document stating that he was the legal owner of the watch. The other two offences relate to the property found in possession of the respondent at the time of his arrest.

Subjective matters 16The respondent was aged 32 at the time he was sentenced. He has a criminal history which includes convictions for robbery in company, break enter and steal, assault police and escape from lawful custody. He has served several periods of full time custody since 1998, which have varied in length from 1 months imprisonment to 18 months imprisonment. On 25 October 2007 he was sentenced to 4 years imprisonment with a non-parole period of 18 months for an offence of robbery in company. He was released to parole on 26 August 2008. The present offences were committed shortly after the expiration of his parole period. 17The respondent did not give evidence on sentence. However, three reports were tendered on his behalf. The first was a drug and alcohol report prepared by Mr David Rowe, a Services and Programs officer from the South Coast Correction Centre. Mr Rowe stated: "The impression gained of Mr Nykolyn is that he is a man with reasonable insight into the problem that has developed as part of his substance abuse. Although he states that he recognises that his drug use has brought him to a point of crisis, and he needs to take a closer look at the issues involved, and at how his behaviour has led to his present circumstance. Further questioning revealed he, in fact has little true understanding of himself, his behaviour or problems. Mr Nykolyn has a tendency to minimize his substance use and his criminal lifestyle in order to manipulate himself to continued use substance and maintain his current lifestyle (sic). He has developed a dependence on drug use over a period of years and seems to have learned early in life that substance abuse can provide temporary relief from emotional pain. ...The onset of mental illness which he states was triggered by the use of Crystal-methamphetamine (sic). He self medicated for period (sic) to attempt to resolve his undiagnosed schizophrenia and has over the years attempted to manage his mental health this way. Mr Nykolyn states that when on medication his mental health is good." 18Mr Rowe expressed the opinion that the respondent requires long term rehabilitation and recommended a program directed at persons with drug abuse and mental health issues, such as the program conducted by the Salvation Army at the Macquarie Treatment Centre at Morriset. 19The second report was from Dr William Lucas, a psychiatrist. He prepared an assessment of the respondent in 2007 when he was to be sentenced for an unrelated offence of robbery in company committed in 2007. He records that the respondent was diagnosed with schizophrenia in 2004. He was also diagnosed with poly-substance abuse, his principal drugs being heroin and cocaine. Dr Lucas found that the principal psychosocial stressors leading to the robbery offence were intoxication with alcohol and the effect of prohibited drugs. Dr Lucas found that, although the respondent's psychotic symptoms were not fully controlled by the treatment he was receiving for his schizophrenia, these symptoms were not responsible for his behaviour on the relevant night. The offence committed in 2007 was the subject of the previous proceedings. All of the offences for which the respondent was sentenced by Finnane DCJ took place in 2011 within February and March of that year, more than three years after the report was prepared by Dr Lucas. 20The third report was from Dr Olav Nielssen who assessed the respondent in February 2012. The respondent reported to Dr Nielssen that his offending was associated with his ceasing his medication and his use of prohibited drugs that had combined to bring a return of his symptoms of mental illness. Dr Nielssen found the respondent to be polite and well spoken but concluded that he was suffering from "schizophrenic thought disorder" which manifested itself in literal interpretations of questions, impairment of abstract thinking, and being easily distracted. His vocabulary, general knowledge and reasoning ability were otherwise assessed in the normal range. 21Dr Nielssen's conclusion was that the respondent suffered with chronic schizophrenia and had a substance dependence and abuse disorder. He was of the opinion that the respondent will require indefinite treatment in the form of psychotropic medication under the supervision of a community mental health team. He considered that his long term prognosis is directly related to the course of his substance abuse disorder. 22The respondent is the father of 3 children but has separated from his partner. The separation was primarily due to the respondent's drug addiction and the reluctance of his partner to have her children brought up in association with prohibited drugs.

23The sentencing judge delivered his remarks on sentence ex tempore. His Honour did not set out the facts of the individual offences and did not differentiate in relation to their seriousness. His Honour identified that the respondent was entitled to a discount on sentence for his plea of guilty but did not quantify that discount. His Honour described each offence as serious but did not differentiate between them. His Honour commented on the effect upon a victim who has their home invaded and their property stolen. 24The sentencing judge concluded that the respondent was not a professional criminal but committed his crimes because of his drug addiction. His Honour concluded that each of the offences was an unplanned break and enter by a person who was seriously mentally ill. His Honour referred to the decision of the High Court in Muldrock which considered the correct approach when sentencing a person who is suffering from mental illness. 25The sentencing judge identified the respondent as a person in need of treatment and someone who "should not have a crushing sentence imposed upon him." His Honour also indicated that he believed the respondent should have a significant period on parole "so that the Parole authorities can work with him and try to, with his assistance, stabilise his mental condition and stabilise his drug addiction." 26His Honour was concerned that the respondent's mental illness may have the consequence that any period of full-time custody would be onerous for him. He also said that in his view rehabilitation was a very important factor and that it was important that the respondent gain access to an appropriate treatment facility. His Honour said: "Although he is mentally ill he still has intelligence and free will. He can decide whether he goes somewhere or he does not. The parole authorities can make all sorts of recommendations to him. If he chooses not to take any notice of them well, nobody can make him. I am going to give him a chance of getting out in a relatively early time. I am imposing an aggregate sentence. In my opinion each of these four offences is of similar seriousness and each would warrant, taking into account a discount for early plea, a sentence of four years imprisonment. There would have to be a degree of accumulation. Because of his mental illness it is appropriate to impose a non-parole period which is very much less than the normal non-parole period which is applied." 27His Honour did not proceed to define the individual sentences but proceeded to sentence the respondent to an aggregate sentence of 7 years imprisonment with a non-parole period of 18 months. 28There are five grounds of appeal which are as follows:

Ground 1:His Honour erred by categorising each offence as being of similar seriousness.

Ground 2:His Honour failed to properly take into account the offences on the Form 1.

Ground 3:His Honour erred by finding that the offences were not planned.

Ground 4:His Honour erred in the manner in which he took into account the mental illness of the respondent.

Ground 5:His Honour erred in imposing a sentence that is manifestly inadequate.

29It will be apparent from the portions that I have related from the sentencing judge's remarks that there are a number of errors. The sentencing judge concluded that each offence was of similar seriousness and gave no indication of the impact of the matters on the Form 1 on the sentence for the relevant offences. 30The respondent accepted that his Honour had not dealt with those matters but submitted that the argument was technical and was "precisely the sort of reasoning which the introduction of s 53A of the Crimes (Sentencing Procedure) Act 1999 was intended to overcome, that is, overly technical grounds of appeal which even if established would not affect the overall sentence." 31Section 53A was introduced to ameliorate the difficulties that had emerged with the obligations required of a sentencing judge by reason of the High Court's decision in Pearce v R [1998] HCA 57; (1998) 194 CLR 610. The section is in the following terms: "(1)A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2)A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following: (a)the fact that an aggregate sentence is being imposed, (b)the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 of any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3)Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4)The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5)An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section." 32Section 53A(1) allows a court to impose an aggregate sentence instead of a separate sentence of imprisonment for each count. However, s 53A(2) requires the sentencing judge to indicate to the offender the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. A sentencing judge is accordingly required to give consideration to the criminality involved in each offence and, where appropriate, have regard to any matters on a Form 1 when defining the sentence that would have been imposed for an individual offence. Subsection 5 will save from invalidity any aggregate sentence that has been imposed in circumstances where the sentencing judge has failed to comply with s 53A(2)(b) or any other requirement of the section. 33It follows that in the present case, although his Honour should have considered and recorded the sentence to be imposed for each individual offence, the failure to do so does not invalidate the sentence. 34The Crown submitted that the sentencing judge was also in error when he said that the respondent was "a drug addict engaging in unplanned break and enters" and that his Honour should rather have found that the offences were planned. The foundation for this submission was the fact that the respondent was wearing gloves during the commission of the offences and had chosen property at Randwick because it had no security cameras. It was further submitted that the agreed facts disclosed that it was common ground that the offences were planned and that his Honour should have indicated to the parties that he had proposed to depart from this agreed fact. 35Counsel for the respondent submitted that the fact that the respondent carried gloves and examined premises before he broke into them is not inconsistent with the finding that the offences were unplanned. To my mind, this submission should be accepted. Although it is clear that the respondent had set about robbing premises to obtain goods that he could turn into cash, the extent of his planning was confined to an intention to carry out a robbery on premises that he found to be suitable. He had not otherwise set about planning the robbery of any particular premises, nor had he organised himself accordingly. To my mind, his Honour was not wrong to describe the offences as he did. 36At the heart of the sentencing of the respondent is his mental illness. There is no doubt that he is suffering from schizophrenia. The Crown submitted that the extent to which the respondent's schizophrenia mitigated the offences was limited because there was evidence before his Honour that the illness was triggered by the respondent's consumption of drugs and alcohol. 37It is clear from the reports tendered at the sentence hearing that the respondent has psychotic episodes when he ceases to take his mediation or resorts to the consumption of alcohol or prohibited drugs. However, in my opinion, the evidence does not determinatively show that the respondent's substance abuse "triggered" his illness. The respondent was diagnosed with schizophrenia in 2004. Although the respondent indicated to both Mr Rowe and Dr Nielssen that he believed that his illness was triggered by his use of methylamphetamine, the respondent gave a history of drug use in which he claimed to have first used that drug in 2007, three years after his diagnosis. Neither Mr Rowe, nor Dr Nielssen express an opinion about what may have "triggered" the respondent's schizophrenia. 38The principles relevant to the sentencing of a person who is suffering from mental illness or intellectual handicap have been considered in many cases. I endeavoured to summarise them in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, (2010) 79 NSWLR 1 at [177] - [178], where I said: "Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing see, eg, R v Engert (1995) 84 A Cnm R 67, R v Tsianas [1996] 1 VR 398 at 400, R v Fahda [1999] NSWCCA 267 at [40] - [48], Launtsen v R [2000] WASCA 203, (2000) 114 A Cnm R 333 at [43] - [51], R v Harb [2001] NSWCCA 249 at [35] - [45], R v Israil [2002] NSWCCA 255, R v Hemsley [2004] NSWCCA 228 at [33] - [36], R v Verdins [2007] VSCA 102 at [32] Courtney vR [2007] NSWCCA 195 at [14]-[18], and R v Henry [2007] NSWCCA 90 at [28] They can be summarised in the following manner: 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 R v Henry [1999] NSWCCA 111, 46 NSWLR 346 at [254], Miller v R [1999] WASCA 66 at [23], RvJiminez [1999] WASCA 7 at [23], [25], Tsiaras at 400, Launtsen at [51], Israil at [23], R v Pearson [2004] NSWCCA 129 at [43], Henry [2007] NSWCCA 90 at [28]. 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 Engert at 71, R v Wright (1997) 93 A Cnm R 48 at 50 - 51, Israil at [22], Pearson at [42], Henry at [28]. 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 Tsians at 400, Jimmez at [25], Israil at [26], Henry at [28]. It may reduce or eliminate the significance of specific deterrence Courtney at [14], Tsiaras at 400, Israil at [25], JW at [192]. 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 Israil at [24], Henry at [28] 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 R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]." 39For the reason that the respondent suffered from serious and long standing mental illness, in particular chronic schizophrenia, it was open to his Honour to fashion the sentence by giving general and specific deterrence less weight than in the usual case. It was also appropriate for his Honour to emphasis the need for rehabilitation. Accordingly, in so far as Ground 4 asserts his Honour's approach to this issue was in error, it must be rejected. 40The question that arises is whether, in the result, the non-parole period that his Honour imposed was manifestly inadequate, requiring the intervention of this Court (Ground 5). 41The Crown does not submit that the total term of the respondent's sentence was manifestly inadequate. The argument was directed to the non-parole period. It was submitted that his Honour, in his brief remarks on sentence, did not make plain whether he had had regard to all of the matters relevant to the offences, correctly identified the criminality involved and had regard to any matters of aggravation when identifying the non-parole period which he imposed. It was submitted that by imposing a non-parole period of 18 months with a head sentence of 7 years, a ratio of 21.42% (compared with the statutory ratio of 75%), his Honour had given excessive weight to the respondent's mental illness and his need for rehabilitation. 42The Crown emphasised that for the offence committed in 2007 the respondent was sentenced to a head sentence of 4 years. Shortly after the sentence had expired the respondent had offended again. The Crown submitted that, by his conduct, the respondent had disavowed any intention to rehabilitate himself and that, accordingly, the need for rehabilitation did not justify a finding of special circumstances. 43It was submitted that in light of the number of offences, the matters on the Form 1, the respondent's criminal history, the maximum penalty for the offences and the weight properly given to the respondent's mental illness the non-parole period should have been greater. 44The sentencing of the respondent was difficult. But for his history of significant mental illness, his record and the seriousness of the offences which he committed would have required a sentence with a non-parole period significantly greater than was imposed by his Honour. Offences which are committed by intruding into a person's home with the intention of taking their property are serious and demand significant punishment. This is recognised by the fact that the legislature has imposed a maximum penalty of 14 years imprisonment for the various offences that the respondent committed. 45The difficulty in relation to the respondent is that after he was sentenced for the offences in 2007 and later released to parole he was able to re-establish himself in the community without offending. Notwithstanding his mental illness, he did not offend again until after his parole period had expired and he regressed into consuming prohibited drugs. This suggests that if he is able to obtain effective treatment and responds appropriately to it, there is a real chance that he can be rehabilitated and become a law abiding member of the community. He is a man of 32 years of age and, as described by his Honour, has a physical capacity which would enable him to obtain employment suitable to his level of intellectual and emotional functioning. By imposing a relatively short non-parole period, but a lengthy period on parole, his Honour ensured that the respondent would receive the benefit of supervision while on parole together with the prospect that, if he offended during that time, he would be returned to prison. It seems that that possibility had operated as an effective disincentive for him to offend after he was sentenced in 2007. It is reasonable to assume that this will again be the case in relation to the sentence which his Honour imposed. 46His Honour recognised the need for the respondent to receive effective and appropriate psychiatric treatment. So much is obvious. His Honour concluded that this treatment could best be provided in the community, the facilities within the prison system being less suitable. I am not persuaded that this finding was inappropriate. It influenced his Honour's decision to provide a relatively short non-parole period. There was no error in his Honour reaching this conclusion. 47Notwithstanding the seriousness of the offences that the respondent committed I am satisfied that the approach that his Honour took was, in all the circumstances, available. Although a longer period of fulltime custody would not have been inappropriate, I am not persuaded that the sentence imposed was manifestly inadequate requiring the intervention of this Court. 48Although the respondent filed an application for leave to appeal no submission was made to support it. It was filed only to protect the respondent in relation to the head sentence if the Crown appeal was upheld.

Orders 49The orders made by the Court were: 1.Crown appeal dismissed. 2.Respondent's application for leave to appeal dismissed. 50HALL J: I agree with the reasons of McClellan CJ at CL for the decision to dismiss the appeal by order made on 17 August 2012. 51I also agree with the reasons of Hulme J and the observations made by his Honour in respect of the provisions of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999. 52R A HULME J: I joined in the decision to dismiss the Crown appeal at the conclusion of the hearing on 17 August 2012 and did so generally for the reasons given by McClellan CJ at CL. 53A non-parole period of 18 months against an aggregate sentence of 7 years is undoubtedly lenient. But I believe that it was not beyond the boundaries of the sentencing judge's discretion to take the approach that he did. 54Even if the view was taken that the 18 month non-parole period was unduly lenient to the point of being erroneous, there was a powerful factor warranting the appeal being dismissed in the exercise of this Court's residual discretion. The appeal was heard only two weeks before the respondent was to become eligible for release on parole on 1 September 2012. An affidavit by the respondent's solicitor provided evidence that he had been accepted into a residential rehabilitation program at Odyssey House, and that a Probation and Parole Officer had recommended release on parole on condition that he enter that program. 55I wish to take the opportunity to make some observations about the relatively new aggregate sentencing provisions in the Crimes (Sentencing Procedure) Act 1999. They were inserted by the Crimes (Sentencing Procedure) Amendment Act 2010 and took effect from 14 March 2011. 56McClellan CJ at CL has referred (at [31] - [32]) to the provisions of s 53A, including the requirement in s 53A(2)(b) that a court must indicate to the offender, and make a record of, the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. In an apparent attempt to give effect to this requirement, the sentencing judge in this case said: "I am imposing an aggregate sentence. In my opinion each of these four offences is of similar seriousness and each would warrant, taking into account the discount for early plea, a sentence of four years imprisonment. There would have to be a degree of accumulation." 57With respect to the judge, this would appear to be doing little more than paying lip service to the requirement in s 53A(2)(b). I do not understand how the same sentence for each offence can be justified. True it is that they were offences of a similar (but not identical) nature and that the maximum penalty for each was the same. However, the judge was asked to take into account further offences when he sentenced for two of the offences; a reason in itself for the individual sentences to vary. The judge appears to have taken a similar approach to that taken by the sentencing judge in R v Brown [2012] NSWCCA 199, described there (at [26]) as applying a "blanket assessment". 58The importance of proper compliance with the requirement to indicate the separate sentences that would have been imposed arises for at least four reasons. First, it assists a sentencing judge in application of the totality principle, an important factor in the assessment of the aggregate sentence to be imposed. Secondly, it exposes for appellate review how it is that the aggregate sentence was arrived at: see R v Brown at [17] per Grove AJ. Thirdly, it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence. Fourthly, it assists this Court to assess an appropriate new aggregate sentence if one or some of the underlying convictions are quashed on appeal. 59In relation to the last matter, if one or more of the underlying convictions are quashed on appeal, whilst this Court does not know what the judge at first instance might have imposed by way of aggregate sentence in respect of the remaining convictions, the indicative sentences for the individual offences provides a useful guide to the task of re-sentencing. There is a recent example of this Court having to engage in such an exercise: FP v R [20120] NSWCCA 182 at [327] - [329]. 60These four matters are the types of considerations that informed the inclusion of s 53A(2) in the aggregate sentencing provisions. In the second reading speech for the Crimes (Sentencing Procedure) Amendment Bill 2010, the Honourable Michael Veitch on behalf of the then Attorney General stated: "The reasons for setting out the precise details of each sentence are to ensure transparency, reflect criminality and ensure that victims get due recognition. This also makes it easier to adjust an overall sentence when one sentence is changed on appeal. Those principles remain important, but in order to simplify the sentencing process for the judiciary, and for the community's understanding of it, the Government has decided to remove the requirement to specify the precise detail of any overlap between the sentences by allowing it to set one overall sentence and one non-parole period, provided that the court first indicates the appropriate sentence that would have been given for each offence had it been sentenced individually. The amendments will allow the judge to approach sentencing for multiple offences in a simple way when appropriate and lead to a sentence which is simpler and more easily understood by all." (New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010 at 27867)"

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