R v Shortland

(a) dealing with precedents

1. The sentencing judge misapprehended the relevance of precedent in the sentencing exercise in two significant respects. First, the judge referred to the fact that the Director had relied upon four authorities in this Court, concluding: [6] "The Crown was unable to point to any passage within any of the cases which contained what might be described as a principle or a point of authority governing the sentencing exercise. Perhaps the closest that one might come is at [71] of the judgment of [Giles JA] in Sabapathy v The Queen [7] where his Honour noted, without making a finding as to any competing submissions, that: '… it was common ground that conviction for the offence of sexual intercourse without consent will ordinarily bring a custodial sentence. There may be unusual or exceptional circumstances in which a sentence other than a custodial sentence will be appropriate, but there is no litmus test for when that might be so. It is part of the exercise of the broadly based sentencing discretion in the light of all the facts in the particular case.'"
2. While it is not entirely clear what the sentencing judge meant by an absence of a finding as to any "competing submissions", in a context where the ordinary outcome was said to be "common ground", it does not appear that he then applied the principle articulated by Giles JA in Sabapathy by looking for unusual or exceptional circumstances. While it would be unhelpful to talk in terms of a general rule or presumption, what was said in Sabapathy has clearly been followed in more recent years. Thus the Judicial Commission statistics provided to the sentencing judge for a single offence under s 61I upon conviction following a trial reveal 47 cases (between 2010 and 2016) in all but one of which a custodial sentence was imposed. This appears to have been given no weight by the sentencing judge. Rather, the judge focused upon some 26 specific cases (out of a pool of 237 cases, being all sentences under s 61I) in which offenders received suspended sentences. Ten of the specific cases were discussed in the sentencing judgment, copies of which were provided to this Court. In only three cases did the conviction result from a not guilty plea and a trial. Whether the non-custodial sentences were appropriate need not be considered; three cases out of 237 do not constitute a relevant pattern of sentencing.

(b) pleas and remorse

1. Secondly, the judge failed to take into account the significance of the cases in which sentencing proceeded on a guilty plea. In many cases the entry of a plea of guilty will be accompanied by a finding that the offender was remorseful. Absent such a finding, it would be an unusual or extraordinary case in which the offender could properly be given a non-custodial sentence for an offence under s 61I involving penile penetration. There will be cases, which may include offences where digital penetration of a minimal kind is involved, or where there is evidence of severely limited intellectual capacity, which warrant a non-custodial sentence. The present case did not fall into any such category.
2. There was no evidence of remorse from the offender. No doubt the absence of the offender from the witness box on his sentencing hearing was a reflection of the fact that he had given evidence at his trial in clear contradiction of the complainant's account, which must have been rejected by the jury as not raising a reasonable doubt as to his guilt. However that may be, the judge stated: [8] "The Crown concedes that a number of mitigating factors are relevant, namely that the offending was not part of planned or organised criminal activity; the offender does not have a significant record of previous convictions and in addition it will be clear by the expression of remorse the offender is entitled to the benefit of those mitigating factors for reasons to which I will turn. I also find that it is unlikely that he will re-offend and that he has good prospects of rehabilitation."
3. As the Director pointed out, the prosecutor made no concession as to remorse; to the contrary her submission was in the following terms: [9] "With respect to the matter going to trial, it is something that the Crown submits you could also consider is the lack of remorse in this case when your Honour looks at any findings of good prospect of rehabilitation and likelihood of reoffending."
4. The offender conceded in his submissions on the appeal that "there was no evidence of remorse as defined at s 21A(3)(i) of the [Sentencing Procedure] Act." [10] He stated that the reference to remorse must have been a reference to the contents of a letter written by the offender's mother on 17 August 2017, stating: "In our many conversations Joseph has expressed great remorse, he shows genuine regret." The Director submitted that it was "equivocal at best whether the remorse or regret expressed by the respondent to his mother related to having been convicted or whether it amounted to an acknowledgment of the wrongfulness of his actions." [11]
5. The offender also submitted that there was "nothing in his Honour's remarks to suggest this comment led to any reduction in penalty." [12] This submission should be rejected; it contradicts the express statement by the sentencing judge that remorse was a mitigating factor to the benefit of which he was entitled. This finding was apparently the basis for the observations which immediately followed, as to the unlikelihood that he would reoffend and his good prospects of rehabilitation. Further, the misapprehension that the issues had been conceded by the prosecutor reinforces the conclusion that the judge thought he was entitled to take such an important factor into account and therefore did so.

(c) assessment of objective seriousness

1. The trial judge significantly understated the objective seriousness of the offending, which should have been based on evidence of the complainant which the jury must have accepted. In reaching a conclusion that the offending was at "the lower end of the seriousness", the judge concluded that "there were good reasons to substantially depart from a standard non-parole period and, indeed, given such a factual matrix the standard non-parole period has very little significance." [13]
2. The factors relied upon are set out by Hidden AJ at [81] and need not be repeated. However, they were stated by the sentencing judge in short form as being those set out by counsel for the offender in her written submissions. There was no attempt to assess their materiality or their accuracy; both warranted consideration. First, their materiality was limited by the significant overlap between some of the factors; examples included (a) "the very short duration of the offending" and "the penetration of the vagina [being] slight"; (b) "the offender was intoxicated", "no evidence of planning" and "it was opportunistic offending"; and (c) "no physical violence or coercion" and "no evidence of degrading conduct".
3. Secondly, some aspects were best described as wrong; it could not be said that there was no physical violence or coercion or degrading conduct. The victim's evidence was that she was physically grabbed, pushed against a door, that she slapped him across the face and he laughed, that when she dropped to the floor he grabbed her by the ankles and pulled her forward so that she fell on her back, and pulled off her tights, stockings and underwear. She said that his attempts to insert his penis into her vagina were painful, and that he tried to press his penis into her mouth while she tried to keep her mouth closed. Aspects of her evidence were summarised in the sentencing judgment in four sentences. [14] The seriousness of the offending was significantly diminished in this account. Further, the fact that the victim was described at one point as being "on top, riding" might have suggested an element of voluntariness or consent. Her evidence was that he had pulled her on top of him. [15]
4. Thirdly, the absence of a significant age gap between the offender and the victim was immaterial in circumstances where both were young adults. As the Director submitted, in the case of non-consensual intercourse between adults, age difference is rarely likely to be relevant.
5. In the course of the fact-finding exercise, the judge stated that the facts upon which he would proceed to sentence were "largely" the "facts … proposed by counsel for the offender." [16] He also accepted her submission "as to the need to take account of the inconsistency in evidence given by the complainant". [17] However, those inconsistencies were explored at length in her cross-examination at trial and it was not adequate to refer to the mere fact of there being inconsistencies, without addressing any particular inconsistency and how she responded in cross-examination. On the other hand, that approach may explain the anodyne form of the findings as to the nature of the offending.
6. By contrast, the judge also said "I take into account" the statements by the offender to police when interviewed and his evidence at trial which was "significantly different". His evidence at trial was set out in far greater detail than that of the victim, ending with the statement that it was "clear that the jury rejected that version in coming to the verdicts of guilty." [18] The reason for setting the material out was obscure, but demonstrates that the inadequacy of the account of the assaults on the victim did not stem from a desire for brevity.

(d) effect on family members of a custodial sentence

1. In circumstances fully explained by Hidden AJ, counsel for the offender submitted that a custodial sentence would impose "exceptional hardship" on his family. The judge accepted that that could be taken into account only where the circumstances are "highly exceptional", referring to "cases such as R v Edwards." [19] For reasons explained in Director of Public Prosecutions (Cth) v Pratten (No 2), [20] Edwards does not self-evidently stand for the proposition that there is such a hurdle in all cases. A more nuanced approach is not precluded by that decision and too much may have been read into it by way of expansion into a general rule, namely that no account may be taken of hardship to a family unless it was truly exceptional. What Edwards in fact determined was that very significant hardship to a third party if the offender were subject to a custodial sentence was not sufficient to preclude a custodial sentence altogether.
2. In any event, what happened in the present case was that the sentencing judge was persuaded that the circumstances of the case satisfied the test that it is "only where the circumstances are highly exceptional and where it would be inhumane to refuse to do so, that hardship to others in sentencing should be taken into account." [21] With respect, the sentencing judge either mistook the standard or the facts in holding that the test was satisfied.

(e) delay

1. There was a further error. In dealing with mitigating factors, the judge accepted the submission that there had been "delay in the resolution of the matter which was in no way attributable to the offender but means that the matter has been hanging over his head and his family's head but it has had the benefit of enabling him to demonstrate his bona fides, comply with bail, be a good father and continue in his employment and not reoffend." [22]
2. There are circumstances in which a lengthy delay between offending and sentencing may enable the court to draw conclusions about the character of the offender. For example, a blameless post-offending past may allow the court to accept, rather than speculate about, rehabilitation and the likelihood of re-offending. However, this case does not fall into that category. The history involved an offence on 28 March 2014, a committal for trial in February 2015 and a first trial (which was aborted) in November 2015. A second trial was held in June 2017. He was on bail throughout that period.
3. Delay as such was not a mitigating factor and should not have been accepted as one. The period on bail (if the conditions had been truly onerous) may have warranted some mitigation of the sentence; it did not warrant the imposition of a suspended sentence if fulltime imprisonment were otherwise indicated.

Residual discretion

1. As noted in the joint judgment in Green v The Queen, [23] the primary purpose of an appeal by the Director against sentence is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons", which guidance "should not come at too high a cost in terms of justice to the individual". [24]
2. Counsel for the respondent submitted that, while there had been no relevant delay in instituting and hearing the appeal against the inadequacy of the sentences, the offender had been living in a state of stress and uncertainty for some four years since the allegations were first made. He also submitted that hardship to the family, whether exceptional or not, could be taken into account in determining whether to intervene to increase an inadequate sentence.
3. The force of both these submissions should be accepted.
4. Four points of principle are raised by this case. First, the decision whether or not to suspend a sentence of imprisonment is not to be addressed by isolating the cases in which a sentence has been suspended and looking for points of similarity as between them and the case under consideration. The exercise must be viewed more generally.
5. Secondly, whilst it is true that the conduct involved in offences against s 61I may vary greatly in terms of objective seriousness, cases of actual penile penetration, whether anal, oral or vaginal, will rarely fall at the low end of the spectrum. Such non-consensual activity has a significant inherent element of coercion and will generally be degrading from the perspective of the victim.
6. Thirdly, while a substantial degree of concurrency may be warranted where three offences occur as part of a single course of conduct, total currency means that no additional penalty has been incurred for multiple offences. That result would require justification; none was provided in this judgment on sentence.
7. Fourthly, there would need to be a powerful basis for suspending a sentence involving penile penetration in circumstances where there is no real evidence of remorse.
8. Pleas of guilty are readily accompanied by expressions of remorse, which the judge must assess. A trial in which lack of consent is the only issue can usually allow an expression of remorse upon conviction. On the other hand, where the offender runs a more aggressive defence, namely that a different course of conduct occurred at the instigation of the complainant, there may be practical difficulties in claiming to be remorseful following conviction. Nevertheless, that issue must be squarely confronted by a sentencing judge before determining that a suspended sentence is warranted.
9. In my view, these are important matters which warrant the intervention of this Court, but I would limit the extent of the intervention in exercise of the residual discretion.
10. The Director challenged not only the suspension of the sentences, but also their severity, on the basis that there were three separate offences for which wholly concurrent sentences were imposed. While there is no doubt that, suspension aside, the overall effect of the sentences was unduly lenient, I am not satisfied that the Court should intervene to increase the aggregate sentence period. The offender should serve a period of incarceration, but it should not be longer than that imposed by the sentencing judge.

Resentencing

1. It follows from the preceding reasoning that the sentences imposed should be set aside and the offender should be sentenced on each offence to a period of imprisonment for 2 years, the sentences to be wholly concurrent.
2. The sentencing judge made a finding of special circumstances for the purposes of s 44 of the Sentencing Procedure Act. [25] That finding should be accepted and applied on the resentencing. The factors which the judge took into account were (a) the offender's lengthy period of compliance with bail conditions since his arrest, (b) his demonstrated rehabilitation, (c) the fact that it would be his first time in fulltime custody, and (d) that he is unlikely to reoffend. At that time it would have been appropriate to fix a non-parole period of 15 months, given a 2 year period of imprisonment.
3. It is now necessary to take into account the fact that the offender has been subject to a suspended sentence for some 4.5 months. Although it would involve a significant degree of leniency to treat that as equivalent to fulltime custody, in limiting the Court's intervention to the removal of the order suspending the sentence, I would allow the sentence to run from the date fixed by the sentencing judge, namely 20 October 2017. It follows that the non-parole period will expire on 19 January 2019. The offender will thereafter be subject to a statutory parole order, pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW). No further direction is required of this Court.
4. Accordingly, I would propose the following orders: 1. Allow the appeal and set aside the sentences imposed in the District Court. 2. Sentence the offender, on each count, to imprisonment for 2 years, comprising a non-parole period of 15 months and a balance of term of 9 months, each sentence having commenced on 20 October 2017. 3. The non-parole period will expire on 19 January 2019, whereupon the respondent will become entitled to release pursuant to a statutory parole order. 4. The respondent is to be taken into custody forthwith. Although there is a division of opinions, as agreed by the whole Court, these are the orders of the Court. [26]
5. R A HULME J: I agree with Basten JA that manifest inadequacy of the sentences imposed in the District Court has been made out and that the Court should exercise its discretion to resentence for the reasons his Honour has provided. However, I respectfully differ from his Honour as to resentencing on the issue of concurrency.
6. The respondent was found guilty of three offences contrary to s 61I. The fact that there were three offences of the type described rendered the respondent's criminality greater than if there had been just the one. A two-year sentence for one of those offences could not adequately comprehend the criminality inherent in the other two: Cahyadi v R [2007] NSWCCA 1; 186 A Crim R 41 at [27]. See also Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64] (Gageler, Nettle and Gordon JJ). There should be some accumulation of the sentences although, having regard to the fact that the offences occurred in the course of the one incident, the extent of it should be relatively modest.
7. I am unable to agree that the Court should refrain from imposing a sentence that seems "proper" (s 5D(1) of the Criminal Appeal Act 1912 (NSW)) in the exercise of the residual discretion. The concept of a "residual discretion" in a Crown appeal against sentence is concerned with whether the Court should intervene at all in the event that error is established. In recent discussion by the High Court there is no suggestion of this discretion extending to the imposition of a less severe sentence than the Court considers appropriate: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [24]-[26] (French CJ, Crennan and Kiefel JJ); CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [32]-[39] (French CJ and Gageler J; [53]-[69] (Kiefel, Bell and Keane JJ). See also R v Reeves [2014] NSWCCA 154 at [11]-[19].
8. Section 68A was inserted in 2009 into the Crimes (Appeal and Review) Act 2001 (NSW) to abolish the concept of "double jeopardy". It forbids the Court from dismissing a Crown appeal, or from imposing a less severe sentence than it would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. "Double jeopardy" was a reference to the fact that an offender is liable to be sentenced for a second time once error is established in a Crown appeal. Section 68A had the effect of removing from consideration the element of distress and anxiety to which a respondent to a Crown appeal was presumed to be subject; preventing this Court from refraining to intervene on the basis of such distress and anxiety; preventing this Court from reducing the sentence which it otherwise believes to be appropriate on that basis; and preventing the Court from doing either of those two things by having regard to the frequency of Crown appeals: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [141]. The residual discretion to refrain from intervening was otherwise left intact: Green v The Queen; Quinn v The Queen at [26].
9. This Court in R v JW imposed a sentence following a successful Crown appeal that the majority said would have been manifestly inadequate if imposed at first instance (McClellan CJ at CL, Howie and Johnson JJ at [209]-[210]). This was not an aspect of the Court exercising the residual discretion; the justification for doing so was the additional evidence of events that had occurred since the original sentences were imposed. It is uncontroversial that this Court may take such evidence into account in determining whether to intervene and, if so, in determining what is the "proper" sentence to impose. The respondent in the present case also relies upon additional evidence which has been reviewed in the judgment of Hidden AJ.
10. Basten JA acknowledges (at [32]) that sentences of imprisonment for 2 years as the total punishment of the respondent for his three offences (putting aside the fact that the primary judge suspended the sentences) was "unduly lenient". In my respectful view, while it is appropriate to take the additional evidence into account, it is insufficient to render an unduly lenient sentence "proper" for the Court to impose.
11. I agree with Basten JA that the appropriate sentences to be imposed for each offence are terms of imprisonment of 2 years. However, there should be partial accumulation of the sentences such that the overall term is one of 3 years.
12. I agree that there should be a back-dating to 20 October 2017 in order to reflect the period in which the respondent has been subject to the sentence imposed at first instance. I also agree that the finding of special circumstances made by the primary judge should be maintained. The total effective sentence that should be imposed is one of 3 years with a non-parole period of 1 year 10 months.
13. Having regard to the different conclusions of the other members of the Court, I accept that the orders that should be made are those proposed by the presiding judge.
14. HIDDEN AJ: This is a Crown appeal against sentences passed upon the respondent, Joseph Raniera Shortland, for three counts of sexual intercourse without consent of which he was found guilty at trial in the District Court. The offence, pursuant to s 61I of the Crimes Act 1900, carries a maximum sentence of 14 years imprisonment and a standard non-parole period of 7 years. The respondent was sentenced to three concurrent terms of imprisonment for 2 years, each of which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999.

Facts

1. The complainant had given an account of the offences to police in a recorded interview and a statement. There had been an earlier trial of this matter, which was aborted, and the recorded evidence of the complainant in that trial was replayed to the jury in the later trial, pursuant to s 306I of the Criminal Procedure Act 1986. The complainant was recalled to give some further brief evidence in the later trial.
2. The complainant's evidence, including reference to some inconsistencies in it, is helpfully summarised in the Crown's written submissions, as follows: … (i) The complainant and the respondent had known each other for a number of years. On the evening of 28 March 2014 both the complainant and the respondent were celebrating the respondent's partner's birthday, along with a number of other people, at a hotel in western Sydney. At one point during the evening the respondent was refused service by bar staff and returned to his home at Doonside. The complainant and the respondent's partner stayed at the hotel until 3.30am and then shared a taxi back to the home at Doonside. Shortly after the respondent's partner went to bed, the complainant used the bathroom which was accessible through the laundry. (ii) The complainant came out of the bathroom into the laundry. She saw the respondent standing in front of the washing machine. He initially had his back towards her. (iii) The respondent grabbed her by putting his hands around her waist and she ended up against the door that leads into the house. She slapped him across the face because she didn't want him to touch her. She slapped him three or four times and he laughed. In cross-examination she agreed that she had told police that the respondent had kissed her on the mouth and she thought that she had kissed him back. She agreed that in her interview she did not tell police that she had slapped the respondent across the face at that point in time, but did so later. (iv) She dropped down to the floor with her knees up in front of her. The respondent grabbed her by the ankles and pulled her forward so that she fell onto her back. The respondent pulled her tights, stockings and underpants down and fully removed her left leg out of her clothes. The complainant was wearing a leopard print top, black tights with stockings and underpants underneath, and knee high boots. In cross-examination the complainant agreed that in her interview she stated that the respondent took all her clothing off her except for her top. (v) The respondent climbed on top of her so that his face was in front of hers. He tried to insert his penis into her vagina. The complainant made a noise and he told her to be quiet. He had the tip of his penis in her vagina. It was painful (Count 1). He took his penis out and inserted two fingers in her vagina. (vi) While the complainant was still laying on her back, the respondent inserted his penis inside her vagina. It was brief, maybe a few seconds. His penis moved in and out more than once (continuation of Count 1). In her record of interview the complainant stated that the respondent thrusted (sic) his penis inside her vagina for a couple of minutes. She agreed in cross-examination that she did not mention in her record of interview that the respondent had inserted two fingers inside her vagina. (vii) The respondent then pulled the complainant on top of him. He was now on the floor and she was sitting on him. She moved off him and crawled towards the toilet. In cross-examination during the present trial, the complainant agreed that she told police in her record of interview that the respondent had told her to 'ride me'. (viii) After crawling towards the toilet the complainant sat in the doorway and the respondent stood in front of her. He said that if she 'sucked him off' he would 'do her harder'. He put his penis near her mouth and pressed it against her lips. The complainant tried to keep her mouth closed but he pushed harder until his penis entered her mouth (Count 2). His penis was in her mouth for a few seconds. (The respondent gave evidence at trial that the complainant gave him a "head job" which lasted for "probably ten, 15 minutes.") (ix) The complainant then stood up and went to the laundry sink and washed her face. Her clothes were still half off. The respondent came up behind her and pushed on her shoulders so that she was bent over, and he pulled her hips back. He then inserted his penis into her vagina and thrust it in and out more than once (Count 3). She said 'enough' loudly and he stopped. The complainant did not know whether the respondent ejaculated at any time. (x) In cross-examination the complainant agreed that in her record of interview she stated that it was when the respondent was penetrating her from behind at the laundry sink that he said that he would 'do her harder' if she 'sucked him'. (xi) The respondent walked into the backyard and after dressing, the complainant also went out. She asked him to call her a taxi which he did. When the taxi arrived, the complainant said 'I hate you' to the respondent and he replied 'no you don't'.
3. The respondent gave evidence at the trial. As noted, he admitted an act of fellatio but said that it was consensual and, indeed, instigated by the complainant. He denied removing her clothes and any act of penile/vaginal intercourse.
4. For the purpose of sentence, the trial judge accepted the submission from counsel then appearing for the respondent (who did not appear in this Court) that, in the light of the inconsistencies in the complainant's evidence, he should take into account only the basic facts which were not in dispute and which were consistent with the elements of the offences established by the verdicts. The facts his Honour found were said to be "largely" those proposed by defence counsel.
5. In his reasons for sentence, his Honour referred to the gathering at the hotel, where the respondent consumed "a considerable amount of alcohol". He referred to the complainant returning to the respondent's home at about 3.30am in a taxi which she shared with his partner, Ms Ruby Ryan, whereupon Ms Ryan went to bed. At this time, both the complainant and the respondent were intoxicated. His Honour continued (at [5]-[6]): 5 … Shortly after that the complainant used the toilet, and accessed it through the laundry. After finishing in the toilet and while in the laundry the offender and the victim kissed. The Crown says, and I accept, that the evidence of that was that the accused kissed the complainant and the complainant thought that she kissed him back. 6 The offender then inserted his penis into the victim's vagina for a matter of seconds, that is the subject of Count 1 on the indictment. He was standing in front of the complainant and said, "If you suck me off I'll do you harder" and he placed his penis near her mouth, pressed his penis against her lips and pushed his penis into her mouth for a few seconds. That is the subject of Count 2 on the indictment. She stood up and he inserted his penis into her vagina. The victim said "Enough" and the offender stopped. They then dressed and went into the backyard. At some point a taxi was called to collect the complainant. The complainant and the offender went out the front to wait for a taxi and the taxi took the complainant home. She made a complaint to her aunty and mother soon after arriving home and reported the matter to the police on the morning of 29 March 2014. She was seen shortly after by a sexual assault doctor but there were no relevant findings made. There was some evidence that the offender wore a condom but no evidence that he ejaculated.
6. His Honour took account of a victim impact statement, which revealed continuing psychological effects upon the complainant from the incident (at [14]). It was supported by a medical certificate revealing "emotional and physical symptoms consistent with her diagnosis of PTSD, requiring medication and counselling".

Subjective case

1. The respondent is a New Zealand citizen with permanent residency in Australia. He was 25 years old at the time of the offences and is now 29. He has a minor criminal history, comprising offences of possessing an unauthorised and unregistered pistol and ammunition, for which effectively he was placed on a bond, and some minor traffic offences. His Honour considered him to be of "relatively good character", and noted that his record contained no offences of violence or sexual offences.
2. Of Maori background, the respondent came to Australia with his family when he was 15 years old. His parents' marriage failed after the death of a son who died in infancy, and his father formed a relationship with another woman. That relationship has endured and the respondent considers her his step-mother. His birth mother also resides in this country. He has a steady record of employment, primarily as a removalist (which was his father's trade).
3. He enjoys a good relationship with his parents and his siblings and other members of his extended family, who are supportive of him. His relationship with Ms Ryan, although sometimes volatile, has been stable. They have three children: two boys, aged 8 and 6, and a girl who was born about a month before he was sentenced. There were a number of very favourable references from family members and a family friend, the effect of all of them being that the conduct for which he stood for sentence was out of character.
4. There was psychiatric evidence that Ms Ryan had a long standing history of anxiety, and that she suffered post-natal depression after the birth of their second child. In affidavits before his Honour, both the respondent and Ms Ryan expressed concern about how the family would cope financially if he were imprisoned, given that he was the main income provider. The respondent also expressed concern that he would not be available to provide emotional support to Ms Ryan following the birth of their third child, given her anxiety disorder. Both of them deposed that they were worried about how the children would cope in the absence of their father. Ms Ryan added that, if he were imprisoned, she would have limited support from family and friends due to their own work and family commitments.
5. The respondent also expressed his fear that his sentence might lead to his being deported to New Zealand. He deposed that this would expose the family to considerable stress, noting that the family and his parents and siblings reside in Australia, that he does not have a strong support system in New Zealand, and that he may struggle to find employment in that country to support his family. I shall return to this matter.
6. His Honour expressly took into account in the respondent's favour his age at the time of the offending, the absence of any prior sexual offending, the evidence of his good character, his family support and his familial responsibilities and commitments. His Honour also had regard to the delay in bringing the matter to finality (at [20]). The respondent had been charged on 29 March 2014 and was granted bail the following day. He was committed for trial in February 2015 and the earlier aborted trial took place in November 2015. The matter was listed for retrial on 20 October 2016 but was not reached. The retrial was conducted in June 2017. The sentence proceedings began on 1 September 2017 and resumed on 20 October 2017. Sentence was passed that day. His Honour found that none of this delay was attributable to the respondent, and noted that over that period he had not committed any further offence and had complied with the conditions of his bail.
7. Other aspects of the subjective case will be referred to when considering the submissions in the appeal.

The appeal

1. The Crown brings the appeal on the single ground that the sentences imposed are manifestly inadequate. However, in support of that ground the Crown relies on what are said to be seven errors to be found in his Honour's reasons for sentence. They were articulated in written submissions prepared by a Crown prosecutor but a different Crown prosecutor appeared at the hearing of the appeal and, in one respect, refined them. I shall deal with these in turn.

(i) Whether his Honour's findings of fact were consistent with the evidence and with the jury's verdicts

1. Put shortly, the Crown's complaint in written submissions is that his Honour's findings of fact, set out at [51] above, convey that he did not accept important details of the complainant's account which the jury must be taken to have accepted and made no finding as to the respondent's state of mind in relation to the issue of the complainant's consent. The effect of s 61HA(3) of the Crimes Act is that the respondent's knowledge that she was not consenting would be established if he knew that she did not consent, or was reckless as to whether she did consent, or had no reasonable grounds for believing that she consented. At the trial recklessness was not left to the jury as a basis, but the other two bases were. The Crown's written submissions assert that his Honour's findings left open an inference that the respondent's state of mind was no more than reckless.
2. Fleshing that submission out, the written submissions referred to some of the matters set out in the Crown's summary of the complainant's evidence at [48] above, which were not mentioned in his Honour's factual findings.
3. As to count 1, this was her evidence that the respondent grabbed her around the waist, she slapped his face because she didn't want him to touch her, she dropped to the floor with her knees up, he grabbed her ankles and partly removed her clothing, he climbed on top of her and he told her to be quiet when she made a noise, and that after penetrating her he inserted two of his fingers into her vagina before penetrating her again.
4. As to count 2, it was her evidence that she tried to keep her mouth closed but the respondent kept pushing his penis into her mouth. As to count 3, it was her evidence that she had gone to the sink in the laundry to wash her face when he came up behind her, pushed her shoulders so as to bend her over, then pulled her hips back and penetrated her vaginally more than once.
5. The Crown referred to the familiar principles governing fact finding by a trial judge for the purpose of sentencing enunciated in R v Isaacs (1997) 41 NSWLR 374 at 377-8. These include the requirement that facts found for the purpose of sentencing must be consistent with the jury's verdict, that findings of fact adverse to an offender must be established beyond reasonable doubt, but also that there is no "general requirement" that an offender should be sentenced upon a view of the facts, consistent with the verdict, which is most favourable to the offender.
6. Reference was also made to the joint judgment of Gleeson CJ, Gummow and Hayne JJ in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, where, in examining the duties of a sentencing judge, their Honours said at 5: The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace.
7. His Honour noted (at [5]) that the facts he found had to be consistent with the verdicts, adding that they must be established beyond a reasonable doubt unless they were factors in favour of the offender, which needed to be established "on a different standard". The effect of those observations, of course, was consistent with principle.
8. In oral argument the Crown prosecutor referred to the elements of lack of consent and knowledge of lack of consent, saying that those two elements of the offence were critical matters in respect of which his Honour expressed no finding. However, lack of consent and the respondent's knowledge of it, on one or other of the bases left to the jury, were inherent in the verdicts and hardly needed to be spelled out in the reasons for sentence. For the same reason, I would reject the Crown's written submission that his Honour's factual findings left open the inference that the respondent's state of mind might have been no more than reckless. As I have said, his Honour did not leave that issue to the jury.
9. That said, what his Honour did not determine was which of the bases of knowledge of lack of consent left to the jury should be found for the purpose of sentence: actual knowledge or the absence of reasonable grounds for believing that the complainant did consent. As developed in oral argument, the Crown's position was that this was a "foundational error". It was argued that his Honour's bare account of the sexual activity without reference to the surrounding detail failed to disclose the gravity of the respondent's conduct but, more importantly, it was that surrounding detail which provided the basis for determining the respondent's state of mind. Indeed, the Crown prosecutor argued that in the light of the surrounding detail the proper conclusion was that the respondent well knew that the complainant was not consenting.
10. Reliance was placed upon R v Alcazar [2017] NSWCCA 51, a successful Crown appeal against a sentence in respect of three counts of aggravated sexual intercourse without consent (s 61J(1) of the Crimes Act), to which the respondent had pleaded guilty. In that case also the Crown's complaint was manifest inadequacy, argued by reference to several asserted errors which were described as "particulars". One of those related to the issue of knowledge of consent, the complaint being that the sentencing judge had made no finding about the respondent's knowledge of lack of consent by reference to s 61HA(3). It was held that his Honour was in error in failing to do so and that, on the facts of that case, the inevitable finding was actual knowledge. Such a finding would have established a moral culpability for the offences considerably greater than that which the sentencing judge had determined: see the judgment of Schmidt J, with whom Hoeben CJ at CL and Wilson J agreed, at [41]-[71].
11. It is apparent from her Honour's judgment that in Alcazar the question of the respondent's knowledge of lack of consent had been an important issue in sentencing submissions at first instance. The Crown's complaint appears to have been in the context of what were said to be inadequate reasons generally for the sentencing judge's assessment of the objective seriousness of the offences: Schmidt J at [44]. As counsel for the respondent in the present case, Mr Barrow, pointed out, his Honour did give reasons for his assessment of the objective gravity of the offences (although, as will be seen, those reasons are also challenged by the Crown).
12. In the present case, the issue of knowledge of lack of consent had been raised at first instance by the Crown's representative in oral submissions. She referred to the complainant's evidence that the respondent kissed her and she "thought she kissed him back". She relied upon the complainant's evidence, however, that she slapped the respondent before he pulled her clothes off and engaged in the sexual acts.
13. As noted, the complainant's evidence-in-chief had been that she slapped the respondent immediately upon his grabbing her, but in cross-examination she agreed that she had given the police a different account. That account was that initially the respondent had kissed her and she "thought" that she kissed him back. It was after she dropped to the floor and the respondent was in the process of removing her clothes that she slapped him.
14. As also noted, this was one of a number of inconsistencies in the complainant's evidence. Her evidence had been that the respondent had pulled her tights, stockings and underpants down, pulled her left leg out of her clothes and took off her left boot. However, she had told police that he had pulled her "bottoms off", which included her tights, stockings and underwear.
15. It had been her evidence that in the course of count 1 he had penetrated her vagina once, removed his penis and inserted his fingers into her vagina, then inserted his penis again. She said that this penetration was "brief", maybe seconds. In her account to police, however, she said that he had inserted his penis inside her and "started thrusting" for "a couple of minutes", but made no mention of his inserting his fingers. There was no count in the indictment relating to digital penetration.
16. Her evidence had been that after the intercourse the subject of count 1, the respondent pulled her on top of him so that she was sitting on him, but she moved off and crawled towards the toilet. She had told police, however, that at that point the respondent had told her to "ride" him, adding that she "couldn't, may have started but couldn't…." She gave evidence that it was before the fellatio the subject of count 2 that the respondent had said that "if I suck him off, he would do me harder". She had told police that he said this later, when he was "penetrating me from behind", the behaviour the subject of count 3.
17. There were also inconsistencies in her evidence about what occurred at the respondent's home before the incident in the laundry, as well as other evidence conflicting with her account. It is not necessary for present purposes to go to the detail of this, but one aspect of it is worth noting. She gave evidence that the respondent grabbed her outside the house and she attempted to call two of her friends on her mobile phone. This was inconsistent with phone records and call logs.
18. His Honour had to have regard to the unsatisfactory nature of some of the complainant's evidence in arriving at his findings of fact. He also had the benefit of observing her as a witness and being able to make an assessment of her reliability. The fact that the jury found the respondent guilty of the three counts by no means conveys that they accepted the surrounding detail of her account, including her assertion in relation to counts 1 and 3 that there were multiple acts of penetration. Nor was his Honour bound to do so. In my view, it was open to his Honour to confine his findings of fact, consistently with the jury's verdicts, in the manner he did.
19. Nevertheless, the fact remains that his Honour did not address the issue whether the respondent was aware that the complainant did not consent or had no reasonable grounds for believing that she did. That was a matter which needed to be determined.

(ii) His Honour's assessment of the objective seriousness of the offences

1. In his reasons, his Honour noted the Crown submission that the offending generally was towards the mid-range of objective gravity, but accepted the defence submission that it lay at the lower end of the range ([17]). His reasons for that assessment were the following ([19]): 1. The offending was of short duration, each act of penetration being over in a few seconds. 2. There was no significant age gap between the respondent and the complainant. 3. The respondent stopped after the event the subject of count 3 when the complainant said "Enough". 4. There was no evidence that the penetration of the vagina was anything other than slight. 5. There was no physical violence or coercion. 6. At one point of the offending, the complainant was described as being "on top, riding" the respondent. 7. The respondent was intoxicated. 8. There was no evidence of planning, the offending being opportunistic. 9. There was no evidence of degrading conduct.
2. The Crown submitted that there was error in his Honour's approach in relation to four of those factors. As to (a), the short duration of the offending, the Crown prosecutor relied on authority to the effect that the fact that each of the separate acts giving rise to the charges was of a relatively short duration does not necessarily reduce the seriousness of the offending. Reference was made to a number of cases, beginning with R v Daley [2010] NSWCCA 223.
3. That was a Crown appeal against a sentence passed for an offence of sexual intercourse without consent, an act of anal intercourse perpetrated by one prisoner upon another at a correctional facility. In response to a submission on behalf of the respondent that the offence was of short duration, Price J (with whom Hodgson JA and Fullerton J agreed) said at [48]: As the respondent has pointed to the short duration of the offence, I propose now to deal with this issue. In R v Hibberd (2009) 194 A Crim R 1 I said at [56] that the duration of the offence was a relevant consideration in the assessment of the seriousness of an offence contrary to s 61I Crimes Act. I wish to make it clear that the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased. The short duration of the present offence neither mitigated nor magnified the objective seriousness of the offence. The degree of violence, the form of forced intercourse and the circumstances of humiliation were all relevant considerations in determining where on the scale of objective seriousness the offence lay: R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) at [10-11] per Mahoney JA.
4. That passage was cited in the judgment of Leeming JA, with whom Hamill and Fagan JJ agreed, in Cowling v R [2015] NSWCCA 213 at [16]. It was also cited by R A Hulme J (with whom Beazley P and Walton J agreed) in R v Sharma [2017] NSWCCA 85. His Honour was dealing with a submission complaining that a sentencing judge had failed to give the short duration of a sexual offence the significance it deserved. After citing the passage from Daley, his Honour said at [56]: In the impugned passage of the sentencing remarks set out above (at [52]), I see the sentencing judge doing no more than identifying the "relatively short duration" of the offences as being a relevant matter but stating (correctly, with respect) that one must be careful not to make too much of it in the assessment of the objective seriousness because it is not an uncommon feature. As Leeming JA observed in Cowling v R [2015] NSWCCA 213 at [16], citing R v Daley, the short duration of a sexual assault "would not ordinarily be regarded as a factor which reduced its objective seriousness".
5. R v AA [2017] NSWCCA 84 was a Crown appeal against sentence in respect of five separate offences of sexual assaults upon children. Beech-Jones J, with whom Leeming JA and RA Hulme J agreed, dealt with a submission that the sentencing judge had erred in referring to the "relatively short duration" of the offending in respect of three of the offences. His Honour concluded that the finding was open, and added: While the short duration of a sexual assault "would not ordinarily be considered as a factor which reduces the objective seriousness" of such an offence (R v Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16]), it was open to His Honour to have some regard to it (see Russell v R [2010] NSWCCA 248 at [61]).
6. As it happens, the decision of Russell, to which Beech-Jones J referred, was one in which Price J delivered the leading judgment (Campbell JA and Latham J agreeing) and which was handed down about a month after Daley. The case involved five sexual offences committed during two episodes on the same day. In an application for leave to appeal against sentence, submissions were made on behalf of the applicant as to the objective seriousness of the offending, recorded by Price J at [59]. One of the matters raised was that the duration of each offence was very short, "a matter of seconds in each case". At [61], his Honour observed that "relevant matters in determining where on the scale of seriousness the offences lay included the degree of violence, the physical hurt inflicted, the circumstances of humiliation and the duration of the offence", and his Honour referred at that point to Hibberd and Gebrail, as he had done in Daley. However, at [67], his Honour concluded that the short duration of the sexual assaults under consideration did not mitigate their objective seriousness, citing the passage from [48] of Daley which I have set out above.
7. The course of this authority emphasises the generality of the proposition that the short duration of a sexual offence does not bear upon its objective seriousness. In the light of the decisions in Sharma and AA, it cannot be said that it never does (although, when it does, it may not be entitled to much weight). In the present case, as Mr Barrow pointed out, his Honour's observation about the duration of the offences was only one of a number of matters relied upon to determine the objective gravity of the offending. I am not persuaded that it was in error.
8. As to (b), the lack of a significant age gap between the respondent and the complainant, the Crown prosecutor questioned the relevance of this consideration, noting that at the time the complainant was 31 years old and the respondent was 25. This was a case of sexual assault committed by one adult upon another, and their relative ages do not appear to me to be a matter bearing upon the objective gravity of the offences.
9. That may well be a relevant matter in cases of sexual offences committed against children, but that is not this case. Mr Barrow referred to AA (supra) at [55], where Beech-Jones J observed that "the age difference between a sexual offender and their perpetrator can affect an assessment of the objective seriousness of the offending". However, as noted, AA was a case of child sexual assault and it is apparent from a reading of [55] as a whole that his Honour's observation was made in that context.
10. As to (e), the absence of physical violence or coercion, the Crown prosecutor submitted that this also was an irrelevant consideration. Reference was made to the judgment of R A Hulme J (with whom Beazley P and Johnson J agreed) in Bravo v R [2015] NSWCCA 302. This was a child sexual assault case and, with reference to counts involving penile penetration, his Honour said at [45]: … the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, "the offence is less serious because it could have been more serious". As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: "[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse."
11. The Crown prosecutor referred to two other cases in which Grove J's dictum had been applied: Mills v R [2017] NSWCCA 87 at [57]; and Faehringer v R [2017] NSWCCA 248 at [49]. To these might be added R v CTG [2017] NSWCCA 163 in the leading judgment of Hoeben CJ at CL at [60]-[63], where Bravo and Mills were referred to.
12. Saddler v R ([2009] NSWCCA 83; (2009) 194 A Crim R 452) was a child pornography case. The other three cases involved sexual offences against children. In Bravo, Faehringer and CTG the issue arose because of submissions asserting the lack of physical violence or coercion. However, two other cases, involving sexual assault of one adult by another, are worthy of note.
13. Greenwood v R [2014] NSWCCA 64 was a case of sexual intercourse without consent committed upon a young woman who was unconscious through an excess of alcohol. Hoeben CJ at CL, with whom Bathurst CJ and Adams J agreed, said at [31]: It is true that this offence did not involve the use of violence or the administration of some stupefying substance. Nevertheless the condition of the victim was such that she was completely helpless. While the absence of such aggravating features is relevant to the objective seriousness of the offence, his offending should be assessed by reference to what it did involve.
14. In Cowling (supra), Leeming JA said at [16]: The primary judge correctly regarded the objective gravity of the sexual assault as falling at the lower end of the range. It involved no violence or coercion or other threat or intimidation….
15. Of course, in neither Greenwood nor Cowling was the relevance of the absence of violence or coercion to the objective gravity of an offence a matter that arose for argument. Nevertheless, they are a reminder of the need to read general propositions such as that in Bravo in their context. Violence or coercion are rare in sexual offences committed against children, and for that reason their absence has little or no bearing upon the assessment of the gravity of offences of that kind. On the other hand, physical violence or intimidation are common enough in sexual offences committed by one adult upon another, and it seems to me that it is appropriate to have regard to the absence of them as one factor - not necessarily a determinative one - in assessing the gravity of that class of offences.
16. It is apparent that what Grove J said in Saddler arose in the context of a consideration of aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act: in particular, the aggravating factor in s 21A(2)(n) that an offence was part of a planned or organised activity, and the mitigating factor in subs (3)(b) that it was not: see his Honour's judgment at [4] and the leading judgment of Buddin J at [31]. Where aggravating or mitigating factors specified in s 21A arise in a case, a sentencing court must deal with them in conformity with that provision. Otherwise, it seems to me, determination of the objective gravity of an offence by reference to factors said to be aggravating or mitigating is unhelpful. In assessing the seriousness of an offence, it is not inappropriate to examine the extent to which it shares features commonly encountered in offences of that kind, bearing in mind that ultimately objective gravity turns on the features of the offence at hand. So much, it seems to me, is conveyed by the passage from the judgment of Hoeben CJ at CL in Greenwood quoted above.
17. Finally, as to (g), that the respondent was intoxicated, the Crown prosecutor referred to s 21A(5AA) of the Crimes (Sentencing Procedure) Act, providing that in determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time of the offence is not to be taken into account as a mitigating factor. At its highest, the Crown prosecutor argued, it was a matter relevant to the lack of planning and the opportunism of the offending, citing the judgment of Hoeben CJ at CL in Greenwood at [34].
18. Mr Barrow argued that the Greenwood approach is what his Honour intended, so that the finding of intoxication should be linked to finding (h), the absence of evidence of planning, the offending being opportunistic. Whether his Honour's reasons should be read that way is not clear. However that may be, the finding of intoxication was relevant only in the limited sense expressed by Hoeben CJ at CL in Greenwood.
19. It is well established that the assessment of the objective gravity of an offence is part of a sentencing judge's fact finding task, that this Court should be slow to determine such a matter for itself, and that it is reviewable only on the principles stated in House v The King (1936) 55 CLR 499: Mulato v R (2006) NSWCCA 282, per Spigelman CJ at [37] and Simpson J (as her Honour then was) at [46]. Mr Barrow submitted that, even if his Honour were found to be in error in some of the matters to which he had regard, his assessment that the offending was in the lower range of objective gravity was open to him.
20. In the event, I consider that the only factor which his Honour took into account erroneously was the relative ages of the complainant and the respondent, and the respondent's intoxication was relevant only to the spontaneity of the offences. Otherwise, there is force in Mr Barrow's submission that the incident may be seen to have begun with a consensual kiss, and that his Honour was justifiably restrained in making findings of fact as to surrounding detail adverse to the respondent. On the other hand, his Honour made no finding as to a factor germane to objective seriousness, that is, the respondent's state of mind as to the complainant's consent or lack of it. To this also I shall return.

(iii) Whether partly cumulative sentences should have been passed

1. In determining that the sentences should be concurrent, his Honour accepted a defence submission "that the offending represents one brief, continuous course of conduct and penalties should be fully concurrent given that there was a single victim on a single date and the discrete acts of offending occurred for only a few seconds, each one after the other" (at [23]).
2. The Crown prosecutor submitted that the concurrent sentences failed to reflect the totality of the criminality of the three separate acts for which the respondent was to be sentenced, contributing to an overall sentence which was inadequate. Reference was made to the well known passage in the judgment of Howie J (with whom Adams and Price JJ agreed) in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]: … there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.
3. The Crown prosecutor also referred to Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544, where the appellant had been found guilty of two counts of sexual intercourse without consent perpetrated upon an adult woman. Simpson J (with whom Basten JA and Davies J agreed) summarised the facts briefly at [44]. The complainant had been visiting a house, where she was drinking and became moderately affected by the alcohol. The appellant came to the home and, having tricked her into joining him in the bathroom, he pushed her head down and forced her to perform fellatio on him. She lost consciousness for a time. When she recovered, she was lying on the floor, partly undressed, and the appellant was behind her having penile / vaginal intercourse. Having been found guilty in a judge alone trial, he was sentenced to partly accumulative terms for the two offences.
4. In rejecting a submission that the sentences should have been concurrent because the two offences "were committed within seconds of each other upon the same complainant and at the same location" and were "part of the same criminal enterprise", Simpson J noted that the two offences "although committed in close proximity and time, and on the same victim, were separate and distinct offences, the second more brutal because it followed immediately on the first": [223]-[224]. That case turned upon its own facts and her Honour decided that there was no error in the sentencing judge's approach. However, it cannot be said to establish a general principle relating to totality in cases of this kind.
5. Clearly, it was open to his Honour to have passed partially cumulative sentences, taking the view that each of the counts merited punishment which could not be encompassed within the sentence passed for the others. Nevertheless, it was a discretionary matter. His Honour had presided over the trial and, in light of the view of the incident which he expressed in the passage from his reasons quoted above, it cannot be said that he was bound to do so. Whether the concurrence of the sentences has contributed to an overall sentence which is manifestly inadequate is another matter, to which I shall turn later.

(iv) His Honour's finding of "exceptional hardship"

1. In the light of the evidence I have summarised at [57] above, defence counsel had argued that the respondent's wife and children would suffer exceptional hardship if he were sentenced to full time custody, an argument which his Honour accepted. In his remarks (at [21]-[22]) his Honour said: 21 … As the Courts have said in cases such as R v Edwards (1996) 90 A Crim R 510, it is only where the circumstances are highly exceptional and where it would be inhumane to refuse to do so, that hardship to others in sentencing should be taken into account. If a custodial sentence is required, but there is evidence of extreme hardship a court may take into account the extraordinary features of a case by suspending the sentence of imprisonment, shortening the term of the sentence or reducing the non-parole period but each case must depend upon its own facts; the seriousness of the crime; whether there is a real need for deterrence and the nature and degree of the impact of the sentence upon third parties. 22 Given the evidence of the continuing mental health problems of his wife and the need to support and nurture a young family I am prepared to accept that a full-time custodial sentence would create exceptional hardship for those people, notwithstanding the frequent recognition that hardship to the family of an offender is an inevitable consequence of most terms of imprisonment.
2. There is no doubt that his Honour correctly stated the relevant principles on this issue, referring to the leading case of R v Edwards ((1996) 90 A Crim R 510). However, the Crown prosecutor submitted that he had failed to apply those principles properly and that, in the light of Edwards and other cases, the evidence was incapable of establishing the exceptional hardship necessary to permit his Honour to take into account the effect of the respondent's imprisonment upon his family.
3. It is useful to set out the passage from the judgment of Gleeson CJ (at 515) which provides the foundation for the consideration of this issue in numerous subsequent cases: There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment. Whilst so called floodgates arguments are often, and rightly, met with judicial scepticism, the practical consequences of an argument that a sentencing judge or magistrate should deal leniently with an offender because of the effect which punishment of the offender will have upon some third party are such that the courts have approached this subject with caution.
4. The proposition that hardship to third parties could be taken into account only where the circumstances were "highly exceptional, where it would be, in effect, inhuman to refuse to do so" was extracted by the Chief Justice from the judgment of Wells J in R v Wirth (1976) 14 SASR 291 at 295-296 (referred to by the Chief Justice at 516-7). Edwards was a Crown appeal, and the fact that the respondent was the carer for a 61 year old patient in an institution, who was difficult and dangerous but whom the respondent had been able to handle better than previous carers, was held not to meet the highly exceptional test.
5. In Dipangkear v R [2010] NSWCCA 156, Whealy J (with whom Hodgson JA and Buddin J agreed) upheld the finding of a sentencing judge that hardship caused to the applicant's wife, who suffered significant physical disabilities and a depressive illness, and was pregnant with his child at the time of sentence, did not meet the requisite test. His Honour dealt with the issue at [18]-[36], also referring briefly to some earlier authorities.
6. The Crown prosecutor referred to other cases in which this Court upheld a finding by a sentencing judge that hardship to family members did not satisfy the requisite test:

• Hopley v R [2008] NSWCCA 105, where the applicant, as a sole parent, had been receiving a Commonwealth benefit to tend to the needs of his 13 year old son. He had been raising the child since his relationship with his mother had broken down, there being only sporadic contact with her. There was psychological evidence that the boy was at a vulnerable stage of life where risks to his development and future adjustment were extremely serious. It was said to be critical to the boy's development that he remain in the care of his father for the next five years.
• Elmir v R [2009] NSWCCA 22, where the applicant and his wife had the care of four children of ages ranging between 11 and 21, as well as the care of his brother's four children, ranging in age from 17 to 21. His wife was undertaking a course at TAFE, and suffered significant health problems.
• Waugh (aka Willougby) v R [2010] NSWCCA 3, where the applicant and his partner had had the care of her son. Because of his incarceration and his inability to provide for them, his partner and the boy had been evicted from their home and were living "house by house" without stable support. It was noted that there was no evidence about the family's access to assistance through government or charitable sources.
• King v R [2010] NSWCCA 202, where the applicant had two young children who had been in her mother's care. Her mother was in poor health, suffering from cancer which was said to be terminal and being ill as a result of chemotherapy. However, the children had been in the care of her grandmother and, at the time of the sentence, of an aunt.
• R v Kertebani [2010] NSWCCA 221, where there was psychological evidence that the respondent's wife suffered major depression, as well as some indicia of post-traumatic stress disorder, which required treatment. Her reliance on the respondent for emotional and financial support was said to be "critical", as she had no close network of family or friends to rely upon. It was recommended that she seek ongoing psychological or psychiatric treatment, and that she be given access to family support agencies if the respondent should receive a custodial sentence. The court saw as implicit in those recommendations the availability of support of that kind.
• Flick v R [2012] NSWCCA 170, where there was evidence of significant disabilities suffered by the applicant's mother and his stepfather, for which he had previously provided physical support.
• FP v R [2012] NSWCCA 182, where the applicant and the father of her children were both incarcerated in relation to the same criminal enterprise. There was a psychological report to the effect that the children would be severely affected by their mother's imprisonment, particularly given that their father would be in the same situation. The children were living with their grandmother, who had also been affected by the proceedings, was not in good physical health and had suffered an exacerbation of pre-existing mental health problems.
• Ihemeje v R [2012] NSWCCA 269, where the applicant's wife suffered from hypotension and their young son had complex cardiac problems.

1. To this list the Crown prosecutor added the reasons for sentence of Adamson J in R v Macdonald; R v Maitland [2017] NSWSC 638, where Mr Macdonald had in recent times played a substantial role in the care of his disabled step daughter, and his wife and the step daughter would suffer hardship as a result of his incarceration (although her Honour took these matters into account as part of his subjective case and as being relevant to special circumstances).
2. For his part, Mr Barrow referred to Elshani v R [2015] NSWCCA 254, where this Court, after finding error warranting resentence, determined on the evidence before it that the test of exceptional hardship had been met. Elshani involved a Commonwealth offence and sentencing was governed by s 16A(2) of the Crimes Act 1914 (Cth). Section 16A(2)(p) required the Court to take into account the "probable effect" upon an offender's family or dependants of any sentence under consideration. The decision affirmed a line of authority that that provision should be approached applying the Edwards principles. Evidence relating to the impact of the applicant's sentence upon his family was summarised by Adams J (with whom Gleeson JA and Beech-Jones J agreed) at [23]-[29].
3. Put shortly, psychological material revealed that the applicant's wife met the criteria for adjustment disorder with mixed anxiety and depressed mood. The difficulties appeared to have occurred immediately in the aftermath of the applicant's incarceration and she was said to display "a pattern of protracted distress and psychological difficulties", for which she needed continuing medical and psychological help. The applicant's 19 year old daughter described "serious emotional dysfunction, including suicidal ideation" following her father's arrest and incarceration. The psychologist's provisional diagnosis was that she met the criteria for major depressive disorder, single, moderate, with anxious distress (moderate) and panic disorder (provisional). She experienced significant psychological and adjustment difficulties, most evident in her schooling, and the development of depressive and anxious symptoms.
4. Significant psychological problems were also noted in the applicant's eldest son, his younger daughter and his youngest son. The eldest son had an existing diagnosis of what is now known as autism spectrum disorder, the younger daughter met the criteria for severe anorexia (provisional) and the youngest son the criteria for unspecified trauma and stressor related disorder (provisional) and panic disorder (provisional). Generally, Adams J concluded that the adverse psychological consequences upon all the children were "substantially greater than those ordinarily to be associated with separations of this kind": [29].
5. It is apparent from these decisions that the requirement to demonstrate exceptional hardship sets a high bar. On the material relied upon in the present case, it is doubtful that the requirement has been met. Undoubtedly, the imprisonment of the respondent would be likely to have the unfortunate effects upon the family predicted in the evidence. However, they would enjoy the support of the extended family (while allowing that that may be limited by their own commitments). There is no evidence before his Honour about governmental or charitable assistance which might be available to them.

(v) His Honour erred in taking into account remorse

1. In his reasons (at [17]) his Honour referred generally to relevant mitigating factors, including an "expression of remorse" by the respondent. The Crown prosecutor submitted that he was not entitled to that finding. He had not pleaded guilty, he did not give oral evidence in the sentence proceedings and his affidavit contains no reference to any remorse on his part. The only reference to remorse was in the testimonial of his birth mother, Ms Donna Rerekura, who wrote that in their "many conversations Joseph has expressed great remorse, he shows genuine regret".
2. The Crown prosecutor argued that Ms Rerekura's observation was equivocal, querying whether his regret related to having been convicted or whether it was an acknowledgment of the wrongfulness of his actions. Defence counsel had made no submission about remorse to his Honour. On the other hand, the Crown prosecutor had argued that, the matter having gone to trial, a lack of remorse was demonstrated.
3. Mr Barrow relied upon Ms Rerekura's statement, which could fairly be read as an expression of remorse for acknowledged offences. Nevertheless, he accepted that the matter had not been raised on the respondent's behalf before his Honour. He argued that his Honour had referred to the matter only briefly and that there was nothing in his reasons to suggest that it had led to any reduction in penalty. In all the circumstances, it appears to me that the respondent's expression of remorse to his mother was entitled to very little weight, if any.
4. The sixth error asserted by the Crown is that his Honour erred in suspending the sentences. That is at the heart of this appeal and I shall return to it. It is convenient to deal firstly with the last asserted error, relating to deterrence.

(vii) His Honour failed to have proper regard to deterrence

1. At the outset of his reasons (at [2]), his Honour noted the need to take into account the purposes of sentence set out in s 3A of the Crimes (Sentencing Procedure) Act, observing that they included "preventing crime by deterring the offender and others from committing similar offences". Later (at [18]), his Honour noted a Crown submission that "for the purposes of sentencing, specific and general deterrence, denunciation, making the offender accountable for his actions and recognition of the harm done to the victim and the community should loom large in the sentencing exercise". His Honour also referred to comments concerning the need for deterrence in other cases which were cited to him.
2. However, at no point did his Honour set out the extent to which those principles applied in the case at hand. In this the Crown prosecutor submitted that he was in error, citing R v Van Ryn [2016] NSWCCA 1, per RA Hulme J at [186]. That was a Crown appeal in a child sexual assault case, in which there was psychiatric evidence relating to a medical condition of the respondent which might have contributed to his behaviour. One of the Crown's complaints was that the sentencing judge stated principles concerning deterrence, with reference to authority on the relevance of mental disorder in that respect, but did not express findings relating those principles to the case at hand.
3. R A Hulme J (with whom Leeming JA and Johnson J agreed) dealt with that complaint at [178]-[187]. His Honour recorded the submissions of the parties, including submissions on behalf of the respondent as to how the issue of deterrence might have been approached. It was in this context that his Honour said at [186]: The submissions of both parties convey a debate in a vacuum. It is all very well to argue about how deterrence and denunciation might have been taken into account. But it is impossible to know whether, and if so how, the sentencing judge dealt with these issues. He certainly referred to general principles but said nothing about how he applied them.
4. In Van Ryn determination of the issue of deterrence, general and personal, was of particular importance in the light of the psychiatric evidence. No psychiatric issue arises in the present case. The need for general deterrence is obvious and hardly needed to be spelled out. His Honour's reference to that consideration in general terms, and his recitation without comment of the Crown submission about that matter, convey sufficiently that it was not overlooked. As Mr Barrow pointed out, his Honour's reasons were given ex tempore on the second day of the sentence proceedings, and it has long been recognised that a measure of latitude should be allowed in examining reasons for sentence of District Court judges, given the heavy workload they bear.
5. For the same reasons, it should fairly be inferred that his Honour did not overlook the issue of personal deterrence. Indeed, he found that the respondent had good prospects of rehabilitation and was unlikely to reoffend (at [17]). Clearly, that finding was open in the light of the respondent's subjective case and the absence of any relevant prior convictions.
6. The Crown prosecutor submitted that the issue of personal deterrence is not necessarily removed from consideration because an offender has good prospects of rehabilitation or has been found to be unlikely to reoffend. That proposition, I suppose, is uncontroversial but the importance of personal deterrence falls to be considered in the light of the facts of the case at hand. The Crown prosecutor referred to Butler v R [2012] NSWCCA 23 and Church v R [2012] NSWCCA 149, but they are no more than cases which on their facts were seen to call for regard to personal deterrence despite good prospects of rehabilitation.
7. In effect, the Crown's submission is that the sentences in the present case do not reflect the need for deterrence, general or personal. General deterrence was obviously an important consideration. While his Honour did not address personal deterrence in terms, it is apparent from his assessment of the respondent's prospects of rehabilitation and the unlikelihood of his reoffending, that he did not consider it a significant issue.

(vi) His Honour erred in suspending the sentences

1. The Crown prosecutor submitted that the suspension of the sentence was inappropriate, demonstrating that his Honour had placed undue attention on subjective considerations and given inadequate weight to the objective circumstances of the case. Reference was made to the well known judgment on suspended sentences of Howie J (with whom Hodgson JA and Levine J agreed) in R v Zamagias [2002] NSWCCA 17. His Honour stated that where an offence calls for a term of imprisonment, it is necessary for a sentencing judge to determine the length of that term before considering alternatives to full time imprisonment. His Honour then said (at [28]): Once the term of the sentence has been determined the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, see for example s 77 of the Act with respect to home detention. But the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment….
2. The Crown prosecutor noted that Howie J's analysis has been cited with approval in many subsequent cases, most recently in Parente v R [2017] NSWCCA 284 at [115].
3. In the present case, his Honour expressly adopted Howie J's approach, observing (at [38]) that "the appropriateness of an alternative to full-time custody depends upon a number of factors including whether an alternative to full-time custody would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment". His Honour also referred to the judgment of Kirby J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, drawing upon Kirby J's summary at [88] of the approach of the primary judge in that case. His Honour said (at [39]): As Kirby J had said in Dinsdale v The Queen …, a (sic) judge imposing a suspended sentence was obviously influenced by the prospects of rehabilitation, which were regarded as promising, but also influenced by all the circumstances and information available including the nature of the particular offence, the low likelihood of reoffending and the impact which a prison sentence immediately served would have on the offender and his family, as well as the social stigma which necessarily followed conviction quite apart from the prison term and in his Honour's view, all of those were considerations available and proper to the decision of whether or not to suspend the term of imprisonment.
4. His Honour had before him statistics and extensive reference to cases involving sentence for sexual intercourse without consent. Some of this material was sought by his Honour and obtained by the parties before the second day of the proceedings on sentence. The Crown had relied on four decisions of the Court of Criminal Appeal, and supplemented these with a Public Defenders' schedule summarising a number of other decisions of this Court. The statistics conveyed that of the cases in the relevant class, some 11%, 26 cases, involved suspended sentences. The reasons for sentence of District Court judges in 10 of those cases, none of them the subject of appeal, were provided to his Honour.
5. I note that the four decisions of the Court of Criminal Appeal provided by the Crown involved facts bearing some broad similarity to the facts of the present case. In all four, there were full time sentences of imprisonment, either affirmed or substituted, ranging from 2 years and 4 months to 5 years. These were Day v R [2017] NSWCCA 192; Cowling v R (supra); McCartney v R [2009] NSWCCA 244 and Sabapathy v R [2008] NSWCCA 82.
6. In the present appeal neither party took us to those cases or to any of the other cases, schedules or statistics with which his Honour had been supplied. In his reasons (at [27]) his Honour referred to the judgment of Giles JA (with whom Adams and Latham JJ agreed) in Sabapathy. In rejecting an argument that a suspended sentence was appropriate, Giles JA observed at [71] that: … it was common ground that conviction for the offence of sexual intercourse without consent will ordinarily bring a custodial sentence. There may be unusual or exceptional circumstances in which a sentence other than a custodial sentence will be appropriate, but there is no litmus test for when that might be so. It is part of the exercise of the broadly based sentencing discretion in the light of all the facts in the particular case.
7. Otherwise, his Honour referred to the four cases briefly, noticing some features which distinguish them from the present case (at [52]-[53]). He also examined in varying degrees of detail the 10 District Court decisions to which he had been referred, sentences passed in some cases after pleas of guilty and in others after trial (at [33]-[51]).

Manifestly inadequate?

1. As I have said, the suspension of the sentences is at the heart of the Crown's submission that they are manifestly inadequate. The Crown accepts that that must be established whether or not I find any of the specific errors said to emerge in his Honour's reasons.
2. The principles governing Crown appeals against sentence are well established by a long line of authority. It is sufficient to refer to the judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1]-[2] (465-6), where their Honours said: 1. The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons" [Griffıths v The Queen (1977) 137 CLR 293 at 310]. That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the "residual discretion". 2. In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice…. As to the residual discretion, their Honours said at [36] (477): 36. A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, 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. (footnotes omitted)
3. In the present case his Honour faced a very difficult sentencing exercise. Indeed, he said (at [55]) that he had arrived at the ultimate outcome in the case after "lengthy and anxious consideration".
4. I do not understand the Crown to challenge the two year sentences passed for each offence. Rather, it is contended that the failure to accumulate those sentences to any degree, and the decision to suspend them, have led to an outcome which fails to recognise the gravity of the offences and the need to reflect considerations of denunciation and deterrence. That outcome is also said to have been contributed to by the particular errors which have been asserted.
5. The Crown prosecutor cited the following passage from the judgment of Kirby J in Dinsdale (supra) at [61] (340): In Everett v The Queen (...), McHugh J observed that the jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal "so that the court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing" which is "of great importance in maintaining confidence in the administration of justice in any jurisdiction". Inadequate sentences, as his Honour pointed out, are, as much as excessive sentences, "likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes" (...). In this sense, the power of courts of criminal appeal to set aside sentences judged to be obviously erroneous is an important attribute of the jurisdiction and powers of such courts. It permits them to discharge their statutory functions as Parliament contemplated.
6. I am mindful of his Honour's limited findings of fact about the offences which, in my view, have not been shown to be unduly favourable to the respondent. His Honour's assessment that the offending fell into the lower range of objective gravity may well have been open, although the question of the respondent's state of mind remained undetermined. The respondent presented a powerful subject case, demonstrating general good character, a productive and responsible lifestyle, and strong familial ties and support. On the other hand, he did not have the benefit of having pleaded guilty and there was no acceptable evidence of remorse.
7. I have given this matter anxious consideration. In my view, it was open to his Honour to have directed the sentences be served concurrently for the reasons he articulated. However, I am satisfied that the decision to suspend them has rendered the sentencing outcome manifestly inadequate. Making due allowance for the restraint his Honour had to exercise in finding the facts, and the brevity of the sexual conduct and of the episode as a whole, the respondent stood for sentence for one act of oral penetration and two acts of vaginal penetration which have left the complainant with enduring psychological problems. Considerations of denunciation and general deterrence called for a period of full time custody.

Residual discretion

1. The question remains, however, whether the Court should exercise its discretion not to intervene. The Crown prosecutor accepted that it was for the Crown to satisfy the Court that it should not exercise that discretion: CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9, per French CJ and Gageler J at [32]-[33].
2. In Green v The Queen (supra) the plurality, in the context of considering whether disparity in the sentence of co-offenders was a factor militating against allowing a Crown appeal, said at [43] (479-480): 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.
3. On this issue, and also in the event of resentence, further affidavits of the respondent and his wife were read. Also read was an affidavit of the respondent's solicitor, Mr Eccleshall, annexing a schedule of Ms Ryan's attendances upon the St John of God Raphael Services for counselling in relation to her anxiety. The affidavits of the respondent and Ms Ryan attest to their anxiety about the present appeal and their continuing concerns about their position should he be imprisoned. It also emerges that, fortunately, their daughter was born in good health and Ms Ryan has not experienced the mental health problems she had after the birth of their second child.
4. Mr Barrow argued that, apart from the anxiety expressed in those affidavits, the residual discretion should be exercised because of the delay in the progress of the proceedings and the prospect of the respondent's deportation. As to delay, it is not suggested that there was any unacceptable delay in the Crown instituting the appeal, or in its progress in this Court. It arose in the District Court because of the exigencies of bringing cases on for trial in that court. Nevertheless, Mr Barrow argued, the result is that the resolution of the appeal will finally terminate proceedings which began with the respondent being charged almost 4 years ago.
5. I consider that that delay has some bearing on the exercise of the discretion but, of course, it could not be of determinative significance. What persuades me that the original discretion should be exercised is the very real prospect of the respondent's deportation. While there was evidence of his fear of that prospect, his Honour was not taken to the relevant provisions of the Migration Act examined by Davies J in Hull (supra). As I have said, those provisions bear not only upon the respondent's concern for his own position but also upon the hardship his family would suffer in the event of his incarceration.
6. That his Honour was not referred to Hull is readily explicable. It can be inferred that neither party knew of it. It was the reasons for sentence of a single judge in which, as far I am aware, Davies J's approach to the issue of deportation was novel. (In so saying, I do not resile from my respectful view that his Honour's approach was sound in law.)
7. The Crown prosecutor submitted that the evidence on this issue in the present case is inadequate, in particular, as to any practice of the responsible Minister in considering revocation of the cancellation of a visa under s 501CA of the Migration Act. In my view, however, the evidence here was sufficient to engage Davies J's process of reasoning, founded upon the certainty of revocation of the visa and the fact that the Minister's power to revoke that revocation is not reviewable. Moreover, similarly to Davies J's observation at [130] in Hull, what is relevant is the prospect of deportation and the certainty of cancellation of the respondent's visa, whatever may subsequently happen about his status in Australia.
8. I do not understand the observations of the plurality in Green at [43], quoted above, to limit the variety of circumstances which might engage the residual discretion. The touchstone, as their Honours said, is whether allowing the appeal "should not come at too high a cost in terms of justice to the individual."
9. In all the circumstances, it seems to me, the purpose of the Crown appeal in providing guidance to sentencing courts would be served by the pronouncement that the sentences are manifestly inadequate, but justice does not demand the imprisonment of the respondent.
10. I would dismiss the appeal. However, accepting that I am in the minority and that the appeal will be allowed, the orders of the Court should be those proposed by Basten JA.

Endnotes

1. Sentencing Procedure Act, s 54A(2).
2. Sentencing Procedure Act, s 54B(2).
3. Sentencing Procedure Act, s 54B(3).
4. Crimes Act, s 61H(1).
5. Crimes Act, s 61HA.
6. Sentencing judgment at [27].
7. [2008] NSWCCA 82.
8. Sentencing judgment at [17].
9. Tcpt, 01/09/17, p 8(45).
10. Respondent's written submissions on appeal, par 45.
11. Director's written submissions on appeal, par 61.
12. Respondent's written submissions, par 46.
13. Sentencing judgment at [19].
14. Sentencing judgment at [6].
15. Tcpt, 24/11/15, p 35(20)-(25).
16. Sentencing judgment at [5].
17. Sentencing judgment at [16].
18. Sentencing judgment at [7].
19. (1996) 90 A Crim R 510; sentencing judgment at [21].
20. [2017] NSWCCA 42 at [54]-[56].
21. Sentencing judgment at [21].
22. Sentencing at [20].
23. (2011) 244 CLR 462; [2011] HCA 49 at [1] (French CJ, Crennan and Kiefel JJ), quoting Griffiths v The Queen (1977) 137 CLR 293 at 310 (Barwick CJ); [1977] HCA 44.
24. Green at [43].
25. Sentencing judgment at [24].
26. It is not clear whether Criminal Appeal Act, s 21A applies; if it does the result is the same. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2018