This was cited with approval in R v AEM [2002] NSWCCA 58 at [87], in which ordering concurrency for a number of sexual assaults committed in the course of one extended episode was described (at [90]) as "wholly simplistic", and it was said that it was necessary to determine "whether there were discrete features of the individual offences which required accumulation, at least in part".
56 If there were no more to it, there would be substance in the appellant's submission to the effect that the common involvements of Benbow and Caccamo were of little significance and no common feature for counts 2, 3, 4 and 10 was identified. The offences involving Benbow in counts 1, 5 and 6 were at different times and different in nature, likewise the offences involving Caccamo in counts 7, 8 and 9; and the offences in counts 2, 3, 4 and 10 were at different times and largely different in nature. The wholesale concurrences would reveal error of principle. But there is more to it, in the interaction of the totality principle.
57 The totality principle comes into play after individual sentences have been arrived at and questions of cumulation or concurrence, of the kind just explained, have been addressed. In Mill v The Queen (1988) 166 CLR 59, cited for the totality principle in Pearce v The Queen, Wilson, Deane, Dawson, Toohey and Gaudron JJ said (at 62) -
"The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-57, as follows (omitting references):
'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is just and appropriate'. The principle has been stated many times in various forms: when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; `when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
58 The totality principle is not, as underlay the appellant's submissions, directed to ensuring that the aggregate sentence is sufficient for the totality of the offender's criminality. It is a limitation upon excess, with the totality of the offender's criminality a measure of the maximum aggregate sentence rather than the minimum.
59 Importantly, for present purposes, in Mill v The Queen their Honours went on to say (at 63) -
"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."
60 Thus cumulation or concurrence and the totality principle interact. The totality principle may be given effect by making sentences wholly or partly concurrent; that is the preferred course.
61 The judge took that course. He said so -
" … in order to give effect to the principle of totality, to make some of those sentences wholly or partly concurrent with each other".
62 The judge said that he "[had] regard to" the common involvements of Benbow and Caccamo, but I do not think he treated the common involvements as features warranting concurrency of sentences regardless of the obvious disparate features. They were perhaps as convenient a way as any to link some of the adjustments made in giving effect to the totality principle. I do not accept that there was the error in relation to concurrency on which the appellant relied.
63 There may nonetheless have been error in the accumulation ordered. The appellant's submissions, in my view, came down to error in that the sentencing judge's application of the totality principle produced an overall result which was manifestly inadequate. On that basis, the concurrences were symptoms of error, and the error was not in failing to apply the totality principle but in applying it with an appreciation of the magnitude of the respondent's overall criminality so flawed as to attract appellate intervention.
64 The judge was forceful in what he said of the respondent's criminality. He was alive to the considerations of deterrence and retribution. Prior to the 30 per cent discount, the overall result was ten years imprisonment. There were the further subjective matters. Given the attitude of restraint earlier mentioned in a Crown appeal, equally appropriate at this point, I do not think that manifest inadequacy has been made out. Although in my view favourable to the respondent, I do not think that the judge's application of the totality principle and the result it achieved have been clearly demonstrated to be beyond his sentencing discretion.
65 In my opinion, the appeal should be dismissed.
66 BELL J: I agree with Giles JA.
67 CARRUTHERS AJ: The litany of serious offences to which the respondent pleaded guilty, together with the Form 1 offences which he admitted, presented the learned sentencing judge with an extremely difficult task. Indeed, Mr Odgers SC for the respondent on the appeal, informed the Court that "This would have to be one of the most difficult sentencing exercises I have ever seen".
68 Giles JA has set out the relevant facts together with a summary of the competing submissions to this Court. I gratefully adopt those matters and concur with his Honour's conclusion that the appeal must be dismissed. I would, however, add the following remarks.
69 One of the key difficulties with the purposes of criminal punishment is that they often overlap or otherwise appear to be contradictory. As Well J said in the Supreme Court of South Australia, "The purposes jostle one another for paramountcy": see R v Kear (1978) 2 CLJ 42. The present appeal is a perfect example of the truth of that aphorism. Any indictment with so many serious counts and so many serious Form 1 offences necessarily means that there are, one could almost say, countless ways in which the respective sentences may be structured. It may well be that individual sentences allocated to counts could be said to be inadequate, but when matters of totality, including accumulation and partial accumulation are taken into account, the end result may well be satisfactory. Conversely, adequate sentences may be allocated to individual counts but inappropriate accumulation or partial accumulation may result in an overall unsatisfactory end result.
70 This has been demonstrated by the large number of appeals which have come before this Court since Pearce v The Queen (1988) 194 CLR 610, was decided in the High Court.
71 When opening the appeal to this Court Mr Ingram of counsel for the Crown (who provided commendable assistance to the Court) stated that the nub of the appeal was that when his Honour came to impose sentences appropriately to reflect the characterisation of the criminal conduct of the respondent, his Honour erred in the ultimate result in that the total effective sentence was manifestly inadequate, giving full and proper weight to the subjective features. Mr Ingram sought to explain how that alleged inadequacy came about by reference to four specific matters. They are referred to in the judgment of Giles JA.
72 The Crown forcefully submitted that, looking at the overall sentencing structure, a starting point of ten years was inadequate. By the application of a deduction of 30% to embrace, in the aggregate, the early pleas of guilty, assistance to the authorities and contrition, his Honour reached a figure of seven years. After making an allowance of three months for special circumstances an aggregate non parole period of five years was fixed.
73 Counsel for the respondent submitted that when examining the appropriateness or otherwise of a starting point of ten years the question was raised as to the appropriateness of the aggregate discount of 30%. I consider this to be a valid submission.
74 Relevantly, dealing with the pleas of guilty, Spigelman CJ (with the concurrence of the other four members of the bench) said in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418 that the appropriate range in this State for a discount for a plea of guilty is from 10% to 25%. The determination of where, within such a range, the discount should fall in a particular case is a matter of discretion for the sentencing judge. Two circumstances were, however, appropriate to assist in determining the level of discount in a particular case; namely, the time at which the plea was entered and, secondly, the complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. Applying those principles to the instant case, the circumstances, in my view, called for a discount in the higher part of the range.
75 Dunford J was satisfied that the respondent was sincere in his expressions of remorse and contrition. What relevance does this have to the discount for pleas of guilty. In this regard the Chief Justice in Thomson (at 416) approved Winchester v The Queen (1992) 58 A Crim R 345 at 350 where Hunt CJ at CL (with the concurrence of the other members of the Court) said:
"... The extent to which leniency will be afforded upon this ground [ie contrition] will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable."
76 The Chief Justice continued:
"A 'recognition of the inevitable' may qualify the extent of genuine contrition. It does not qualify the utilitarian value of the plea."
77 In view of the strength of the Crown case in the instant appeal it necessarily means that the element of contrition could play little role in the discount for the pleas of guilty. That is not to say, however, that the genuine remorse and contrition of which Dunford J spoke is not a factor to be taken into consideration for the respondent's benefit in the overall sentencing process.
78 Turning then to the level of discount for the assistance to the law enforcement authorities. It is now well established that in this State the customary discount appears to range from 20% to 50%: see eg R v Chu (Wai Tung) (unreported CCA, 16 October 1998).
79 When dealing in Chu (Wai Tung) with reductions for assistance, Spigelman CJ referred to King (1985) 82 Cr App R (S120 at 122), where the Court of Appeal said:
"The quality and quantity of the material disclosed by the informer is one of the things to be considered, as well as its accuracy and the willingness or otherwise of the informer to confront other criminals and to give evidence against them in due course if required in Court. Another aspect to consider is the degree to which he has put himself and his family at risk by reason of the information he has given; in other words the risk of reprisal. No doubt there will be other matters as well."
80 This is a particularly apposite statement bearing in mind the assistance which the present respondent provided to the authorities.
81 His Honour had before him a letter of comfort dated 10 December 2002, which recorded that valuable (and reliable) assistance had been provided by the respondent to the authorities. Further, the respondent has agreed to provide further valuable assistance when certain persons are brought to trial, their proceedings being presently pending. Section 23(2) of the Crimes (Sentencing Procedure) Act 1999 nominates certain specific matters which the Court must consider when having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, the subject offence or any other offence. Those matters are as follows:
" 23 (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:
(a) the effect of the offence on the victim or victims of the offence and the family or families of the victim or victims,
(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d) the nature and extent of the offender's assistance or promised assistance,
(e) the timeliness of the assistance or undertaking to assist,
(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,
(j) the likelihood that the offender will commit further offences after release."
82 With the exception of par (f) the present respondent is entitled to the benefit of the various matters set out for relevant consideration by the legislature.
83 In view of what I have set out above, it would appear to me that if his Honour had allowed the respondent an aggregate discount of 50% to take account of both the pleas of guilty and the assistance to the authorities, such a discount could not be subject to successful challenge. If such were the case, it would require a head sentence of fourteen years, by way of starting point to reach the seven years determined by his Honour. Such is the significance of the quantum of discounts.
84 When one turns to the subjective factors, the fact that the respondent (as a former police officer with over twenty years service) will be required to serve the entirety of his sentence in strict protection is, perhaps, the most significant. When one looks at the various units in which the respondent served during his police service, there could be no doubt that he would have acquired numerous enemies in the criminal community.
85 The relevant case law and principles are set out by Lynne A. Barnes in Protective Custody and Hardship in Prison: see Sentencing Trends No 21 (February 2001) published by the Judicial Commission of New south Wales.
86 When one considers the circumstances under which the respondent will serve his sentence, it must be borne in mind that he suffers the disadvantage of not only having been a police officer but he was also, and will continue to be, an informer.
87 In these circumstances the following passage from the judgment of Lord Lane CJ in Davies and Gorman (1978) 69 Cr App R 319 at 322 is apposite.
"We are told, and it is submitted with some force and it is perfectly good sense, that in deciding what Davies' sentence ought to be by itself we must bear in mind that every year he will serve could be the equivalent of 18 months or two years in a happier atmosphere."
88 This passage was cited with approval by Kirby P (as he then was) in R v Astill (No 2) (1992) 64 A Crim R 289 at 294-295 and subsequently in AB v The Queen (1999) 198 CLR 111 at 152.. The passage had earlier been quoted by this Court in R v Cartwright (1989) 17 NSWLR 243 at 255.
89 Some of the restrictive circumstances under which inmates serve sentences in special protection are set out by Kirby P in Astill (No 2) at 297-298. Those restrictions are well known to judges who preside in the Criminal Jurisdiction and provide clear support for Lord Lane's observation in Davies that every year served in strict protection is the equivalent of eighteen months or two years "in a happier atmosphere". The phrase "a happier atmosphere" is no doubt a euphemism for service under ordinary imprisonment circumstances.
90 It is well recognised that service of a sentence in strict protection imposes psychological stresses upon the inmate. It is appropriate therefore to note certain passages from the psychological report of Wendy Lee Buchanan dated 9 December 2002 which was before his Honour. Specifically Ms Buchanan records that in 1997-1998 the respondent was on stress leave after breaking down when on duty at the surf club of which he was president. This was apparently associated with distressing experiences to which the respondent was subjected during the course of his work as a detective. By the third session Ms Buchanan had formed the view that the respondent may have ongoing symptoms from his exposure to traumatic incidents in his police work which may have had an influence on his corrupt behaviour. She thought there was evidence in the past of problems similar to chronic post traumatic stress disorder. She opined that the respondent's cynicism about the Police Force may have been exacerbated by PTSD and made him more vulnerable to corruption.
91 The report concluded:
"It is suggested that Mr Patison have further counselling around his trauma exposure in order to ameliorate symptoms such as depression and anxiety and remove the risk of a dissociative state which may have been the predisposing factor in his downfall.
Mr Patison is a sensitive caring man who would not fare well under a custodial sentence. It is likely that he would not be able to keep his depression at bay, and his anxiety about his family and in particular his son, would be increased to the detriment of his mental state."
92 Despite the persuasive and forceful arguments addressed to this Court by Mr Ingram for the Crown, I am persuaded, particularly by reference to the factors which I have set out above, that the sentence imposed by his Honour was within his discretionary range. I agree, therefore, with the order proposed by the presiding judge, Giles JA, that the appeal be dismissed.
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