R v RD

Judgment 1WARD JA: I have had the benefit of reading in draft the judgment of Hamill J and the additional observations of Fullerton J. I agree that for the reasons expressed by Hamill J the appeal should be allowed and I agree with the conclusions his Honour has reached on re-sentence. I also agree with the observations made by Fullerton J. Accepting that the respondent had a dysfunctional upbringing that has affected his development, these offences were nevertheless very serious and committed on a young child who was in a vulnerable position. 2FULLERTON J: I agree with the orders proposed by Hamill J and gratefully acknowledge his Honour's review of the facts and his analysis of the evidence tendered on sentence and on re-sentence. I wish however to add the following remarks. 3For my part, even making due allowance for the fact that the sentencing reasons were delivered ex tempore, I find the sentencing judge's observations extracted at [34] of Hamill J's judgment difficult to understand. Irrespective of there being no evidence tendered on sentence as to the physical or emotional impact of the child having given birth to a premature infant by emergency caesarean section at age 13 and the child being removed from her and placed in the care of the Department, to describe the birth in those circumstances as a 'significant event in a 13 year old's life' is, in my view, a serious understatement of the impact of the respondent's offending. Whether or not those remarks contributed to the imposition of what I regard as a wholly inadequate sentence on Count 6 and whether they led to a wholly inadequate effective sentence is difficult to say. 4I would also wish to emphasise that for my part neither the indicative sentences nor the aggregate sentence to be imposed on re-sentence should be taken as reflecting sentences that should have been imposed at first instance for what I regard as serious and repeated sexual abuse of a young child. 5HAMILL J: This is a Crown appeal against sentences imposed by his Honour Judge Berman SC in the District Court sitting at Newcastle on 25 November 2013. The respondent was sentenced in relation to 3 counts of having sexual intercourse with a child aged between 10 and 14 years. Those are offences under s 66C of the Crimes Act 1900 (NSW) and they each carry a maximum penalty of 16 years imprisonment. On arraignment he pleaded not guilty to three counts of aggravated sexual intercourse without consent pursuant to 61J(1) Crimes Act (counts 1, 3 and 5) and guilty to the alternative counts under s 66C (counts 2, 4 and 6). The Crown accepted those pleas in full discharge of the indictment. 6In the present case Judge Berman SC imposed a total effective sentence of three years. There was a total effective non-parole period of 18 months. This total sentence was achieved by imposing a fixed term of 18 months in relation to the first charge, a sentence of two years with a non-parole period of 12 months in relation to the second charge and a sentence of two years with a non-parole period of six months in relation to the third charge. The commencement dates of the sentences were staggered in order to achieve the total sentence by way of partial accumulation and partial concurrence. 7The sentencing judge ordered that the non-parole period is to expire on 24 May 2015 upon which the offender is to be released on parole. This last order could only be made because the total sentence was one of three years or less: s 50 Crimes (Sentencing Procedure) Act 1999 (NSW); s 8 Crimes (Administration of Sentences) Act 1999 (NSW); R v Riddell [2000] NSWCCA 144. 8The appellant raises one ground of appeal, which is that "the sentence pronounced was manifestly inadequate". In written and oral submissions the appellant asserts that the total effective sentence is manifestly inadequate, that the individual sentences in respect of each count are manifestly inadequate and that the degree of accumulation was inadequate. The appellant also submits that the learned sentencing judge erred in his approach to a particular factual circumstance to which it will be necessary to return. It is also asserted that the sentencing judge fell into error in providing the respondent with a discount of 20 per cent as a result of the "utilitarian value" of his plea of guilty. None of these specific errors are subject to any ground of appeal: contra Carroll v The Queen [2009] HCA 13; 254 CLR 259 at [8]. 9To appreciate the force of the appellant's submissions it is necessary to recount in full the agreed facts which were before the sentencing judge: Background: The victim was born December 1998. She was aged between 12 and 13 years of age at the time of these offences. The offender was born in December 1990. He was aged between 18 and 21 years of age at the time of the offences. The victim lived with her mother, her older brother and her younger brother. Her uncle resided at the property in a caravan at the rear of the premises. The offender was best friends with the victim's older brother. In 2010, the offender moved into the home of the victim. The victim was 11 years of age when the offender moved in. From time to time, the offender's girlfriend also resided at the location with her child from a previous relationship. The offender, his girlfriend and his girlfriend's child shared a bedroom with the victim's older brother. The victim retained her own bedroom. A few weeks after the offender moved into the victim's residence, the offender asked the victim, 'Do you want to go out with me?' The victim believed the accused was asking her to start a relationship with him. The victim, aged 11, said 'Yes'. Their 'relationship' involved hugging and they also kissed. The relationship involved the victim sleeping in the bed of the offender when his girlfriend was not home. Count [2]: Sexual Intercourse with Child (10-14 years) S 66C(1) Crimes Act In late 2010 night, the victim (aged 12) and the offender (aged 18) were in the offender's bed. They were both under the bed covers, with no other persons present in the room. The victim's mother and brothers were inside the premises. The offender pulled the victim's pyjama pants and underwear down and 'spooned' the victim from behind, hugging her. From this position, he inserted his penis into the victim's vagina and had sexual intercourse with her. The sexual intercourse stopped after a few minutes. The victim left the room not long after. She did not disclose the incident to anyone. Count [4]: Sexual Intercourse with Child (10-14 years) S 66C(1) Crimes Act In October 2011, during the day, the victim was under the blankets in her bed in her own bedroom. The offender entered the victim's bedroom and got into bed with her. The offender pulled the victim's pyjama pants and underwear down. The offender got on top of the victim and inserted his penis into her vagina. The offender had sexual intercourse with the victim for a few minutes before stopping. At the time of this incident the victim was 12 years of age and the accused was 21 years of age. Following this incident, towards the end of 2011, the victim noticed her stomach was protruding and was concerned that she might be pregnant. The victim told the offender of her suspicion that she may be pregnant via text message, however, she was too scared to tell anyone else. Count [6]: Sexual Intercourse with Child (10-14 years) S 66C(1) Crimes Act At around 10:30 pm on 19 May 2012, the victim was feeling tired, ill and experiencing stomach pains. That night, she slept in the offender's bed. The victim went to sleep lying on her side, with her back to the accused and the offender 'spooning' her. During the night the offender pulled her pyjamas and underwear down. The offender hugged the victim and rolled her on top of him and put his penis into her vagina. They continued to have intercourse for a few minutes. The victim got off the offender and put her pyjama pants back on. The Victim awoke at 4 am the next morning bleeding from her vagina. She woke her mother was taken to hospital by ambulance. At the John Hunter Hospital, an ultrasound examination indicated that the victim was pregnant and she was taken to the delivery suite. Thereafter, her condition worsened as she was suffering a placental abruption, where the placenta prematurely comes away from the uterus. A caesarean section was performed and she gave premature birth to a boy estimated to be 30 weeks old. It is not suggested that the offender's behaviour caused the premature birth or any injury to the victim. The Investigation: Police from the Child Abuse Squad in Newcastle were informed of the birth on Sunday 20 May 2012. On 20 May 2012, the offender attended the hospital and visited the victim. The offender also maintained contact with the victim by mobile telephone. After initially denying the offences to the victim's mother, on 21 May 2012 the offender broke down in tears and said 'I've fucked up, I've fucked up' and admitted that he committed the offences. Arrest: On 23 May 2012, police made attempts to locate the offender. Police spoke directly with him by phone in the early hours of the morning. Several attempts were made by police to arrange a meeting with the offender without success. On 25 May 2012 the offender attended Newcastle Police Station. He was arrested and placed into custody. He declined to be interviewed but provided a DNA sample. He was later charged. On 10 July 2012, the victim attended the Newcastle Police Station where she participated in a further recorded interview outlining the offences before the court. DNA Evidence: On 9 October 2012, a Certificate of Analysis was prepared by the NSW Forensic and Analytical Science Service, in relation to a blood sample received from the infant and a buccal sample received from the offender. The report concluded that given the maternal DNA types passed on to the infant by the victim, it is approximately 16 million times more likely to obtain the paternal DNA types inherited by the infant if the offender is the father rather than an unknown, unrelated male in the general population. The Child: The newborn was released from hospital and is now under the care of The Department of Community Services. 10The facts were wrong in one respect. The respondent was 19 (not 18) at the time of the first offence and 20 (not 21) at the time of the second offence. 11It will readily be seen that the facts of this case are objectively extremely serious. A particularly troubling aspect of the matter is that the child victim became pregnant after the sexual intercourse alleged in the count (4). She told the respondent that she feared she may be pregnant but he took no action to assist her. He did not take her to a doctor or make any other arrangements for her. This meant that she endured the entire pregnancy without prenatal care, counselling or medical intervention. Not only did the respondent fail to do anything to assist the child with the pregnancy, he sexually abused her again. Count 6 was a further allegation of sexual intercourse (by penile vaginal penetration) over a number of minutes. It was in the aftermath of that incident that the child went into labour prematurely, giving birth at a nearby hospital early the following morning. 12It must be remembered that the respondent was not to be sentenced for his failure to obtain medical treatment for the child when he learned that she might be pregnant. Nor was he charged with an offence concerning any injury or medical complications occasioned by the act of penetration constituting count (6). The facts made it clear that there was no allegation that his actions caused any injury or the premature labour. However, the fact that he knew, or at least suspected, that the child may be pregnant is a matter which seriously aggravates the respondent's moral culpability for, and the objective criminality of, the third offence. 13Mr Gartelmann, who appeared for the respondent on the appeal, acknowledged the seriousness of the offending but noted that the three incidents appeared to be isolated - they were not representative of a more extensive pattern of sexual abuse. He emphasised that the offending behaviour in each case took place over the course of 'only a few minutes'. He also noted that the age difference between the respondent and the victim was not as great as in many cases. 14Even taking into account the matters put by Mr Gartelmann, against a maximum penalty of 16 years referable to each offence, the total sentence of three years with a non-parole period of 18 months appears to be extraordinarily lenient. 15However, the respondent's counsel at first instance presented a compelling case regarding the respondent's personal circumstances. The respondent was a relatively young man himself. He was only 19 or 20 years of age at the time of the first offence, 20 years old at the time of the second offence and 21 years old at the time of the third offence. The evidence of a psychologist also suggests that he may have been an emotionally immature 20 year old. 16A comprehensive psychological report under the hand of Dr Seidler (clinical psychologist) and dated 19 June 2013 set out the respondent's personal background. The learned sentencing judge commented that his background is "easily described as dysfunctional". This observation is a marked understatement of the deprivation and neglect of the respondent's upbringing. The report makes for fairly distressing reading. The respondent's home life was chaotic. The respondent's parents were both drug users and from time to time during the respondent's childhood they took foster children into the home. It seems that they did so in order to obtain income and government benefits. The respondent received very little guidance and attention. He was mostly unhappy at home and at times he "was homeless and would 'walk the streets' to avoid being at home". When the respondent was in his late teens, his mother became involved in a relationship with one of the foster children who was an adult by that time. As a result the respondent became estranged from his mother and became more influenced by his father and an older brother. It is clear on the evidence before this Court that the influence of the father and the brother was not a positive one. 17Dr Seidler described the environment in which the respondent was raised as "dysfunctional, chaotic and neglectful" and said that the respondent was exposed to "a number of risks known to compromise the development of a child". Most profoundly, these risks affected the respondent's "attachments" so that "he has grown into an isolated individual who does not trust or connect to others easily and his capacity for mature intimacy in relationships is compromised". She repeated this opinion later in the report, where she described; "[A]bject parental neglect and substance abuse in addition to being raised in an overcrowded and disadvantaged family environment [which] resulted in [the respondent] being offered little in the way of direct care and supervision. This was increasingly so as he transitioned to adolescence when [the respondent's] lifestyle became more unstable and itinerant and he was afforded few, if any, limitations" 18The report notes that "[the appellant] denied a history of sexual or physical abuse in which he was victimised". 19The respondent also had childhood illnesses (seizures), which he believed caused him to suffer "brain damage". Dr Seidler saw documents from a hospital which confirmed this history although the evidence could not sustain a finding that the respondent had "brain damage". He presented to Dr Seidler as "an unsophisticated individual both intellectually and socially". His "speech was generally slow and monotonic and he maintained limited eye contact". His "pervasive mood was blunted". Considering this evidence it must also be noted that the offender did not appear to present with any irrational thought processes and did not present with any diagnosable psychological or psychiatric illness. 20Psychometric examinations were conducted. These showed that the respondent's general intellectual functioning was estimated to fall in the "low average range" but Dr Seidler was of the opinion that this result did not accurately describe his level of functioning. This was because his "verbal skills are substantially lower than his non-verbal skills" and in one of the tests (vocabulary) the respondent scored higher than only 0.1% of his age peers. 21Whilst the examination and testing was inconsistent and, therefore, inconclusive, it is clear that the learned sentencing judge was dealing with a man of significant disadvantage both in terms of social deprivation and intellectual capacity. 22The relevance of social deprivation and intellectual disability has been considered recently by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 and Bugmy v The Queen [2013] HCA 37 at [42] -[44]. The evidence does not allow for a conclusion that the respondent was "mentally retarded" as the High Court described the appellant in Muldrock v The Queen but his intellectual deficits remain relevant to the sentencing exercise. Further, the social deprivation and "abject parental neglect" that featured in the respondent's upbringing are matters of significance in an assessment of a just and appropriate punishment for his grave offending. 23However, these matters were not capable of providing an explanation for his offences against the child victim in the present case. Dr Seidler said: "I do not believe that any such deficit can explain [the respondent's] offending behaviour but would suggest that [the respondent] is someone who lacks insight and reflective capacity and his reasoning and ability to understand concepts presented verbally would be compromised and superficial." 24Neither Mr Gartelmann nor counsel at first instance suggested that there was any direct causal link between the respondent's social deprivation and intellectual deficit and his offending behaviour. Accordingly, while the matters to which I have just referred are of real significance in determining an appropriate sentence, they do not diminish the respondent's moral culpability for his actions or diminish the objective seriousness of the offending. 25Dr Seidler assessed the respondent as being a "moderate risk" of re-offending. That opinion was based in part on the fact that his history including that had not been the victim of sexual abuse as a child. Further material tendered on sentence complicates that consideration. A psychologist report prepared by the Department of Corrective Services as part of the provision of a pre-sentence report assessed the respondent as being in the "low to moderate risk" of recidivism. 26The case presented to Judge Berman SC gave rise to a particularly difficult and challenging sentencing exercise. More than in most cases, the principles of sentencing pulled in opposite directions. On the one hand the offending behaviour called for condign punishment. On the other hand the subjective circumstances of the respondent required such punishment to be tempered by compassion for his circumstances. It was open to the sentencing judge, given the respondent's age and circumstances and the fact that he had not previously come before the criminal courts, to come to the view that rehabilitation should play a prominent part in the sentencing exercise. Contrary to the submissions of the appellant, the fact that the respondent was assessed by Dr Seidler as a moderate risk of re-offending did not mean that personal deterrence should have played a more significant role. I accept Mr Gartelmann's submission that the fact that he was a first offender and had not previously been sentenced or breached conditional liberty meant that this was not a case where personal deterrence (beyond the fact of a full time gaol sentence) needed to be visited on the respondent. However, general deterrence remained a significant fact even though the respondent was not, perhaps, the most perfect vehicle through whom to send a message. 27The ground of appeal raised by the appellant is simply that the sentence was manifestly inadequate. There is no ground of appeal asserting any specific error of law or principle. This is a matter discussed by the High Court in Carroll v The Queen [2009] HCA 13 at [8]. In the end, the function of the court confronted with a ground of appeal alleging manifest inadequacy is to determine whether the sentence imposed by the sentencing judge was "unreasonable", "plainly unjust", or "manifestly wrong": see, for example, Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gaudron and Gummow JJ at [22]. 28However, it is also appropriate that I consider the specific errors asserted by the appellant even though those errors have not been raised as grounds of appeal. As I understand the Crown's position, the errors identified led the sentencing judge to impose a manifestly inadequate sentence. 29The first error concerns the assertion that the sentencing judge provided the respondent with an excessive discount for his plea of guilty. The respondent pleaded guilty on the day that his trial was listed. In those circumstances the sentencing judge's discount of 20 per cent appears to be too high: see, for example, R v Thomson and Houlten [2000] NSWCCA 309, 49 NSWLR 383; R v Dib [2003] NSWCCA 117; Sullivan v R [2008] NSWCCA 296; Krotiris v R [2012] NSWCCA 28. However, a perusal of the transcript and submissions made before the sentencing judge explain how Judge Berman SC came to conclude that a discount of 20 per cent was appropriate in the circumstances of the case. 30In presenting the material to his Honour at the commencement of the case, the prosecutor indicated that the plea had been entered on the day of the trial but that there were discussions taking place prior to that "and there was an offer made to plea in the Local Court". The prosecutor said he would leave it to defence counsel to explain the circumstances. Defence counsel explained that there had been discussions about the plea for some considerable time and that it was only very close to the trial date that amendments to the indictment resulted in the respondent entering his plea of guilty. He said that the respondent had "never really had an effective opportunity to enter that plea". Judge Berman SC then asked defence counsel whether he contended that his client should get a 25 per cent discount. Defence counsel replied that he could not hope for a 25 per cent discount but that there were circumstances that should result in a discount of "substantially higher than the 10 per cent that he'd get if you pleaded at trial". In response to defence counsel's submissions, the prosecutor said that he did not "cavil with what my friend has indicated as to the timing of the plea" and did not make any submission that defence counsel was wrong when he submitted that the particular circumstances of the case were such that a discount "substantially more than 10 per cent" was warranted. 31In the case of Sullivan v R [2008] NSW CCA 296, the appellant argued that a discount of 15 per cent was insufficient and that he should receive a discount of 20 per cent. Howie J said at [14]; "The short answer is that this court would not generally find that there was an error in the exercise of discretion in choosing a discount of 15 per cent rather than one of 20 per cent in particular where the judge gives reasons for determining the discount chosen". 32While Judge Berman SC did not give reasons for his determination as to the appropriate discount at any great length, the record of the proceedings shows the reasons why he gave the discount he did. I can see no error of law or principle in the approach taken by the sentencing judge and it seems to me that the words of Howie J in Sullivan v R have equal application here. Plainly, a discount of substantially more than 10 per cent must have encompassed a discount of around 15 per cent or more. Accordingly, the argument put by the appellant involves a reasonably minor adjustment of a matter which was ultimately for the sentencing judge's discretion. 33The next particular error asserted by the appellant is one of far greater substance and significance and is the factual matter to which I indicated at the outset it would be necessary to return. It involves a consideration of the rather opaque remarks made by Judge Berman SC in respect to the relevance of the child's pregnancy that resulted from the sexual intercourse alleged in count (4). Again, to understand those remarks it is necessary to consider the arguments which were advanced in the sentencing proceedings. Defence counsel had made a submission that it would be wrong to consider the pregnancy and birth of a child as an aggravating factor. He said that the sentence should not be increased as the result of the birth of a child and that there was some "tension" in considering that matter as an aggravating circumstance. On the other hand, the Crown's representative said "this is a catastrophic result for a young girl and it cannot be said, in the Crown's submission, that the offender did not have true knowledge of her age". 34It was in that context that Judge Berman SC made the following remarks: "The form of sexual intercourse, penile vaginal intercourse, is traditionally regarded as one of the more serious forms of intercourse carrying with it, of course, a risk of disease and, as here, a risk of pregnancy. The offender's actions have caused a 13-year-old to give birth to a child. It is difficult to describe that as something which is harmful. It is certainly a significant event in a 13-year-old girl's life and while she may love the child, it is certainly a factor that I must take into account. Her life has been changed by the offender's behaviour and probably not for the better". 35As I have said, these remarks are opaque. However it is clear that his Honour was concerned that he not take into account as a circumstance of aggravation the fact that a child had been born. The Crown Prosecutor in this Court very properly conceded that the remarks were made ex tempore and should not be subject to unduly close scrutiny. 36However, there is a great deal of force to the appellant's submission that the circumstance was one which ought to have played a greater part in an assessment of the objective gravity of the criminality. This is particularly so with respect to count (6). It is in relation to that count that the respondent not only failed to assist the child when she thought she was pregnant, but again took advantage of her by having penile sexual intercourse with her, knowing or suspecting that she was pregnant. This was a particularly serious example of an offence under s 66C because of the circumstance of the victim's pregnancy, combined with her age and vulnerability. 37The Crown has also submitted that the sentencing judge's approach to accumulation and concurrence was unduly lenient. It has pointed to the fact that the extent of concurrency of the non-parole periods results in no additional punishment (at least in terms of the period the respondent will spend in gaol). However those sentences did increase the total term of the sentence. 38Questions of the degree of accumulation and concurrency are matters that fall squarely within the discretionary judgment of the sentencing Judge: see for example R v Hammoud (2000) 118 A Crim R 66 per Simpson J at [7]. The High Court said in Johnson v The Queen [2004] HCA 15; 205 ALR 346; (2004) 78 ALJR 616: "Judges at first instance should be afforded as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected". 39I accept Mr Gartelmann's submission that the sentencing judge applied the well-known statement of McHugh, Hayne and Callinan JJ in Pearce v The Queen [1998] HCA 57; 194 CLR 610 (at [45]): "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well, of course, as questions of totality". 40The appellant also suggested that there was error in that the total effective non-parole period was only 50% of the total sentence and that the non-parole period imposed on count (6) was only 25% of the total sentence. However, it was acknowledged that the finding of "special circumstances" was correct (or at least open). The degree of departure from the proportions dictated by s 44(1) of the Crimes (Sentencing Procedure) Act is a discretionary decision that raises "so many matters of a discretionary character that this Court will be very slow to intervene": R v Cramp [2004] NSWCCA 264 at [31]; Trad v R (2009) 194 A Crim R 20 at [33]. I am unable to discern error in Judge Berman's approach to special circumstances and the proportion which applied to count (6) was largely the result of the partial accumulation of the sentence imposed on that count. 41However whilst no error of principle is disclosed, the approach taken by Judge Berman SC was a lenient application of the discretion in respect of accumulation, concurrence and special circumstances. Mr Gartelmann conceded that a manifestly inadequate total sentence may result from a combination of (1) individual sentences which are lenient, (2) a modest degree of accumulation, and (3) a significant adjustment of the proportion between non-parole period and balance of term. 42The issues for this Court are whether that is what has happened here and/or whether any of the individual sentences imposed are "plainly wrong" or "manifestly inadequate or unjust": cf Dinsdale v The Queen (supra). 43Neither party made reference to the statistics maintained by the Judicial Commission or to any similar case. While I appreciate the limitation inherent in the process, I have consulted the relevant statistics. There are 82 cases of which 54 received full time sentences. The sentences imposed in those 54 cases range from 18 months to 10 years with the majority of cases (34) falling with the band of 2 ½ years to 4 ½ years. The problem with considering these statistics is that it is unlikely that many (if any) of the cases in the database involved a child become pregnant and the offender continuing to have sexual intercourse with her. The only case of which I am aware where pregnancy resulted is the case of R v Deer [2014] NSWDC 24. That was a case under s. 66C(2) (the child being 14-15 years old) with a maximum penalty of 10 years (as opposed to 16 years here). On the other hand there were four offences which were part of a pattern of ongoing sexual abuse ([8]). Aspects of the case (see for example at [15]) were particularly shocking. There was a finding that the victim had suffered substantial emotional harm and the offender was older and had a criminal record. An aggregate sentence of 8 years and 3 months with a non-parole period of 5 years and 4 months was imposed. It is impossible to gain any guidance from one case which had a number of very different features. 44In all of the circumstances of the present case, considering the extremely serious nature of the offending and the maximum penalty of 16 years, I have concluded that the both the individual sentences and the total effective sentence imposed are manifestly inadequate. I can see no basis upon which the sentence for count (6), which featured the particularly aggravating circumstance concerning the respondent's knowledge of the pregnancy, should have been the same as the sentence for count (4) and just six months more than the sentence imposed for count (2). Further, in my opinion, the total sentence of three years and the total non-parole period of 18 months fail adequately to reflect the totality of criminality involved in the three offences. 45It is necessary therefore to consider whether the court might exercise its discretion not to intervene. 46Section 68A of the Crimes (Appeal and Review Act) 2001 (NSW) provides: "Double jeopardy not to be taken into account in prosecution appeals against sentence (1) An appeal court must not: (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. (2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal." 47The extent to which this provision circumscribes the "residual discretion" has been considered by this Court: see, for example, R v JW [2010] NSWCCA 49, 77 NSWLR 7 per Spigelman CJ (with whom Allsop P agreed) at [92]-[95] and [141]; per McClellan CJ at CL, Howie and Johnson JJ at [209] and R v DW [2012] NSWCCA 66 per Basten JA at [21]-[26]. The High Court has also considered the exercise of the residual discretion in recent times: see, Green & Quinn v The Queen [2011] HCA 49; 244 CLR 462 per French CJ, Crennan and Kiefel JJ at [26], [43] and per Bell J at [131]; Bugmy v The Queen [2013] HCA 37;87 ALJR 1022 at [24]. 48These cases establish that this Court retains a 'residual discretion' to decline to intervene to increase a sentence on a Crown appeal even where error is established and even when it concludes that the sentence imposed at first instances is plainly wrong or manifestly inadequate. 49In Green and Quinn v The Queen the majority said at [35]-[36]: "...assuming the Court of Criminal Appeal considers the sentence under appeal to be inadequate on account of error by the primary Judge, two questions arise. Their answers involve the exercise of the different discretions conferred by s 5D. They are: 1. Whether, notwithstanding the inadequacy of the sentence, the Court should decline in the exercise of its 'residual discretion' under s 5D, to allow the appeal and thereby interfere with the sentence appealed from. 2.To what extent, if the appeal is allowed, the sentence appealed from should be varied. A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D, which ....is 'to lay down principles for the governance and guidance of Courts having the duty of sentencing convicted persons'. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing Judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion." 50And at [43]: "Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual." 51In JW v R Spigelman CJ (at [44]-[141]) undertook an extensive review of the law of "double jeopardy" in the interpretation of s. 68A. He concluded (at [141]): "The following propositions emerge from the above analysis: (i) The words "double jeopardy" in s 68A refer to the circumstance that an offender is, subject to the identification of error on the part of the sentencing judge, liable to be sentenced twice.(ii) Section 68A removes from consideration on the part of the Court of Criminal Appeal the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject.(iii) Section 68A prevents the appellate court exercising its discretion not to intervene on the basis of such distress and anxiety.(iv) Section 68A also prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety.(v) Section 68A prevents the Court from having regard to the frequency of Crown appeals as a sentencing principle applicable to an individual case by taking either step referred to in (iii) or (iv), or otherwise." 52Allsop P agreed with the Chief Justice at [205] and McClellan CJ at CL, Howie and Johnson JJ, while taking a different view on some issues, agreed (at [209]) "with all the Chief Justice has written about the effect of s 68A of the Crimes (Appeal and Review) Act 2001" 53In Green and Queen v The Queen French CJ, Crennan and Kieffel JJ said (at [26]): "It is not necessary for this Court to review the correctness of the construction of s 68A in JW. On any view of its operation it does not extinguish the residual discretion" 54The respondent adduced evidence on the appeal which is relevant to the exercise of the residual discretion. This evidence is also relevant in the event that the Court allows the appeal and comes to re-sentence. 55The evidence comes in the form of four affidavits. Two of those affidavits are from the respondent's solicitor. They annex a number of documents from the Department of Corrective Services, which show that the applicant has made an application to be included in various sex offenders programmes whilst in gaol but that at this stage he has not been accepted into those programmes. That documentation indicates that entry into these programmes is based around release dates. The earlier the release date the more likely an applicant will be accepted into the programme. The material annexed to the solicitor's affidavit also shows that there are treatment programmes available in the community upon the respondent's release. 56An affidavit of the respondent's mother indicates that in January 2014 the respondent disclosed to her that he had been subject to sexual assault by his brother. This allegedly occurred when he was around 10 years of age. The respondent had not previously disclosed this alleged sexual interference. It formed no part of the assessment made by Dr Seidler in her report tendered before the sentencing judge. When interviewed by Dr Seidler he specifically denied being the victim of sexual offending. This formed part of the reason that the psychologist thought that he was only a moderate risk of re-offending. It is difficult to know what to make of this allegation now and there is no evidence connecting that sexual assault to the respondent's behaviour in the present case. The respondent's mother also notes that her son is "worried and frightened that his sentence will be increased". 57The respondent himself swore an affidavit which confirms that he has been under "a great deal of stress and anxiety that his sentence may be increased by the court" since receiving notice that the Crown had appealed against the sentence. 58The material relied on by the respondent also includes a lengthy psychological report prepared by Ms Laura Durkin dated 15 May 2014. It provides some detail of the alleged sexual assaults in which the respondent was the victim. It also notes that the perpetrator of that assault (the respondent's brother) threatened to kill him if he disclosed what happened. The psychologist is of the opinion that the respondent has symptoms consistent with post-traumatic stress disorder as a consequence of that sexual abuse. As I have said, in view of the inconsistent histories provided to the psychologists, it is difficult to know what to make of this allegation. 59Ms Durkin speaks of the respondent's depression and the difficulties that he has had coping with his time in gaol. It also refers to "the stress of an appeal that may result in a longer period of incarceration" and notes that the appeal; "appears to be exacerbating the aforementioned symptoms, placing additional pressure on [the respondent] and further compromising his functioning". 60While much of this material is of the kind that might properly play a part in determining whether to exercise the residual discretion, I am unable to conclude that it is sufficient to justify the Court declining to intervene. However the material is relevant to the re-sentencing exercise that must follow intervention. 61For the reasons mentioned earlier I am not persuaded that Judge Berman's approach to the pleas of guilty, the partial accumulation or the proportion between the head sentence and non-parole period was erroneous. I propose (nominally) to adopt a roughly equivalent approach in re-sentencing the respondent. 62Judge Berman SC did not impose an "aggregate sentence" pursuant to s 53A Crimes (Sentencing Procedure Act). However, I intend to do so. An example of a principled approach to the imposition of aggregate sentences can be seen in the judgment of Fullerton J in SHR v R [2014] NSWCCA 94: see also R v Nykolyn [2012] NSWCCA 219 per RA Hulme J at [56]-[60] and Brown v R [2012] NSWCCA 199 per Grove AJ at [17], [51] 63I have considered the purposes of sentencing in s. 3A of the Crimes (Sentencing Procedure) Act and relevant aggravating and mitigating features both at common law and under s. 21A. I have taken into account the maximum penalty of 16 years applicable to each offence and the fact that the nature of the sexual intercourse (unprotected penile vaginal penetration with ejaculation) is generally considered to be of the most serious kind. I have given full weight to the deprivation and hardship of the respondent's background, his youth and lack of previous convictions. I have taken into account that the respondent is being re-sentenced upon a successful prosecution appeal in the manner discussed in the cases to which I have made reference. 64Count (2) is particularly serious as a result of the tender age of the victim. Count (4) is equally serious because it resulted in the victim becoming pregnant. In my opinion count (6) is the most serious because it occurred when the child was pregnant and the applicant knew or suspected that she was pregnant. 65For the purpose of s 53A(2) I record that I am imposing an aggregate sentence and that the sentences that would have been imposed for individual offences are: Count (2) - Two years and nine months. Count (4) - Two years and nine months. Count (6) - Four years. 66The aggregate sentence that I propose is one of 5½ years with a non-parole period of 2 years and 9 months. 67I have made a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act. This finding is based around the respondent's need for an extended period of supervision and support upon his release and on the partial accumulation inherent in the aggregate sentence which I propose. I have allowed for a discount for the plea of guilty of approximately 20% for the same reasons as Judge Berman SC. While the plea was entered late, it was the culmination of ongoing discussions, which included an offer to plead guilty (to only one offence) in the Local Court. 68As I said (at [7]), the sentence imposed by Judge Berman SC would have resulted in the respondent's automatic release at the expiration of the non-parole period. That will no longer be the case. Because the sentence is now greater than three years, the question of the respondent's release will be a matter for the Parole Authority: see ss 134-138 Crimes (Administration of Sentences) Act. It is a matter of concern that the respondent may be incarcerated beyond the period of non-parole that I have proposed. This would be particularly troubling if the gaol authorities are unable to provide him with the kind of rehabilitation programmes considered to be important before making orders releasing an offender on parole. Much of the evidence adduced by the respondent on this appeal concerned his attempts to participate in sex offender programmes in gaol and his request to know whether or not he was required to complete such programmes before he would be released. 69To this point he has not been accepted into the programmes due to the limited places available. Ultimately these are matters for the Executive and for the Parole Authority and not for this Court. Sentencing courts cannot generally consider such matters when deciding the appropriate length of a sentence. However, I make these observations so that they might be taken into account by those considering the question of the respondent's release on parole at the expiration of his non-parole period. I express the hope that he will be released at the expiration of the non-parole period or very shortly thereafter and that there will be no delay in his release resulting from his inability to complete programmes in the course of his sentence. Obviously those comments are based around an assumption that the respondent continues to make progress while in custody. 70The orders I propose are as follows; (1)The appeal is allowed. (2)The sentences imposed by Judge Berman SC are quashed. (3)In lieu thereof, the respondent is sentenced to an aggregate sentence of 5 ½ years comprising a non-parole period of two years and nine months commencing 25 November 2013 and expiring on 24 August 2016 with a balance of term of two years and nine months to expire on 24 May 2019. (4)The earliest date upon which the respondent will be eligible for parole is 24 August 2016.