R v TL

Facts - trial matter - file 2017/343357

1. Consistent with my findings given at the Wagga Wagga District Court on 22 February 2019, for the purposes of proceeding to sentence I find the following established beyond reasonable doubt.
2. The complainant and the offender had been in an intimate domestic relationship for a number of years. As I observed in my reasons on 22 February 2019 the bulk of the evidence in chief of the complainant was given by DVEC (Domestic Violence Evidence in Chief) video. The complainant gave her account of counts 4, 5 and 6 then 7 and 8 and then counts 1, 2 and 3 towards the end of the interview. The date was fixed by reference to the complainant giving birth to twins on 23 October 2017.
3. In respect of count 1 the offender arrived home from a party at about 2am and woke the complainant. There was an argument over what the offender had been doing as the complainant had seen pictures distributed by social media. During the course of the argument the offender picked up a bum bag containing a bottle of perfume and his wallet and struck the complainant over the side of the head causing bleeding and what the complainant described as a burst ear drum. There was no medical evidence and I cannot deal with the matter on the basis that the ear drum was burst. However, the complainant said that she had difficulty hearing out of that ear for some time. The complainant who was heavily pregnant with twins was admitted to hospital the next day. She complained about the injury to her ear but not the means by which the injury was inflicted.
4. The offending was spontaneous but involved the use of a makeshift weapon. The victim was pregnant. I cannot be satisfied other than that the complainant made a full recovery. The injuries were not trifling but they were certainly not substantial. The offender was subject to a Domestic Violence Order. Counsel for the offender in the outline of submissions (MFI 1 on sentence) puts that "the offence is informed by the context of the offence (during an argument), the level of violence (swinging of a bag containing items, done in one act) and the extent of the injury (bleeding of the ear and difficulty in hearing)." Counsel for the offender omitted that the victim was heavily pregnant. Even so in all the circumstances the matter is moderately below mid-range.
5. Count 2 is an offence of Intimidation constituted by the offender conducting himself in a manner not allowing or permitting the victim to go to sleep. He would spend the nights with the complainant in the hospital room. He would constantly grab and poke at her and pull her hair which went on for hours. Although an unusual example of Intimidation, the offence is made out. The conduct went on over a significant period of time. As counsel for the offender submitted, there was physical conduct but no threat. Given the period of time over which the conduct occurred and the pregnancy the matter is within mid-range.
6. While the victim was in hospital the offender pushed the victim's own hand onto her mouth in order to stop her making any noise, which is the conduct to which count 3, a charge of Common Assault, relates. The matter is an unremarkable example of a Common Assault. The victim maintained that she suffered swollen and red lips, but for the purpose of sentence I am obliged to ignore the injuries - see R v Abboud [2005] NSWCCA 251 per Rothman J at [19].
7. Counts 4, 5 and 6 arise out of the one incident in the early hours of the morning of 5 November 2017. The offender came home at about 12.40am after having been at his mother's house. He woke the victim and started arguing about the past. The victim wanted to go to sleep. The offender grabbed her head, pushed her to wake her up and threatened to tip cold water on her. He grabbed her by the hair and the mouth and pushed her hand over her mouth. The conduct was ongoing. Counsel for the offender submits that the level of violence is low. The violence taken in isolation is not particularly significant. Given the ongoing nature of the conduct, count 4 is a mid-range common assault.
8. Following the conduct to which count 4 relates the victim said something back to the offender and he "booted", meaning kicked her, in the head. The victim suffers from epilepsy and she suffered a fit as a result. The offender refused a request from the victim to call an ambulance. The offender tormented the victim all night and said to her a number of times, "you're not going to sleep". The tormenting included - but as I understood the Crown was not limited to - the throwing of a lizard at the victim. The victim had a fear of lizards. The offender at one stage kept lizards in the house. Part of the circumstances is of course that the victim gave birth to twins on 23 October 2017 and she had the care of those infants. It is the tormenting specifically to which count 5 relates. Counsel for the offender submits that the objective seriousness is low. The matter is below mid-range but not significantly so.
9. Count 6 is a charge of common assault. At about 7am the victim and the offender went outside to have a smoke. They went back inside. The victim was on a mattress. The offender was standing over her wearing shoes and he "booted", meaning kicked. It is the second kick and the one to which count 6 relates. Kicking another person in the head is a very serious example of a Common Assault and is towards the upper end of the range. Counsel for the offender in MFI 1 on sentence refers to the seizure relating to count 6. I was of the opinion that it related to the earlier kick. However, whichever kick to which it did relate the seizure cannot be taken into account because that would be taking an injury into account contrary to the principles in Abboud.
10. Counts 7 and 8 occurred at the occasion of a party to celebrate the birthday of another child of the victim and the offender. The party was held at the home of the offender's mother. Both the offender and victim were drinking alcohol. Some people including two boys walked part. The offender maintained that the victim had been staring at the boys and called her a slut. Despite the offender's mother telling him to stop this conduct, the offender continued. The offender continued for some hours calling her a slut, pushing her in the head and not allowing the victim to go inside to see the children. The victim in the DVEC interview in answer to question 57 said that she would have done anything to get to sleep. Count 7 is a charge of intimidation. Counsel for the offender in MFI 1 on sentence puts that the conduct is limited to the push to the head and calling the victim a "slut". However, as I understood the Crown case the matter also included the ongoing conduct as I have set out. Given the conduct and the ongoing nature of the conduct the matter is within the mid-range.
11. Rather than attempt to summarise the victim's account I will set out part of answer to question 58 in the DVEC video, MFI 2 at the trial. I accepted the version of the complainant beyond reasonable doubt. The victim said: "…and he then he's like no fuck you, as soon as I said just do it, he just started going on about it. And them, um I ended up doing it and after, and after because I wanted to go to sleep he just punched me in the mouth and said I'm a slut…it was not like a big punch he just like from, like say that was my face he just pushed real hard on my face, that's when I started cryin' he got the shits with me and he just went with me for half an hour and he was just callin' me a slut…"
12. The victim acquiesced in fellating the offender because of the threats uttered by the offender. Given the previous conduct of the offender which was led as relationship evidence at the trial to which the victim was subjected it is little wonder why the victim so acquiesced.
13. The conduct to which counts 1 to 7 relate was led as relationship evidence. As I said in my reasons for the findings of guilt on 22 February 2019 the ongoing course of domestic violence informs why the complainant acquiesced in the fellatio, the significance of the threat, "well watch when you try to get to sleep", why she did not complain earlier and why count 8 did not come "out of the blue" as it were.
14. There was no actual physical violence before or during the offence, nor was there any force applied. There was violence after the sexual act, although as counsel for the offender submitted this was part of the relationship evidence.
15. The intercourse involved fellatio. However as Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]: "It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness".
16. In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]: "…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).
17. The court was in both of those decisions concerned with very different offending to the matter presently under consideration. However the general principles are applicable. The threat was not minor given the previous conduct.
18. Counsel for the offender in MFI 1 on sentence addresses the various issues relative to the assessment of the seriousness of the conduct in count 8 although does not make a submission as to where the matter falls. I have no note or memory of any oral submission being made in this regard at the sentence hearing on 17 May 2019. In all of the circumstances I am of the opinion that the matter is below mid-range, but not significantly so.

Facts - plea - file 2018/24012

1. The facts are before the Court by way of agreed facts signed by the offender and the Crown Prosecutor. In the matter where the plea of guilty was entered for the purpose of proceeding to sentence I am satisfied beyond reasonable doubt of the following.
2. The offender and the victim are cousins although they are not close and did not grow up together. The victim was 18 and the offender 21 at the time of the offence. On Wednesday 23 August 2017 the victim spent the evening socialising with friends, spending most of the evening at the home of a friend where she consumed a quantity of alcohol and a pill thought to be ecstasy. By midnight she was extremely intoxicated.
3. Around midnight the victim left the home where she had been with a friend, intending to go home. They passed the offender's home, saw a fire pit and a small group of people and decided to stop there a while. The victim has no memory of attending the offender's home.
4. The victim's friend attempted to walk the victim home, but the victim became upset with her friend so her friend left and went to her home by herself. Some ten minutes later the friend received a text from the offender's partner asking if she knew where the offender was and she replied that she did not.
5. Sometime later the victim left the offender's home and she has a recollection of being in the laneway between Adams and Callaghan Streets in Ashmont although she does not remember getting there. The victim thought she saw two men, one of whom she thought was the offender.
6. The victim was on the ground on the front lawn of a house in Adams Street. It was dark. The facts recite that her pants were pulled down but the facts are silent as to by whom or how the pants were pulled down. She was scared that if she screamed the offender would assault her so she said nothing. The offender forced his penis into her vagina. The victim cannot recall whether he wore a condom or whether he ejaculated. However, as semen was found in the sexual assault investigation kit (SIAK) examination he obviously did ejaculate. The penetration did not last long before the offender ran off.
7. The victim found her own way home and called 000 between 3.00 and 4am. Neighbours offered assistance but she wished to be left alone. The victim was frantic and crying hysterically in the course of the 000 call. The victim was taken to hospital and the SAIK completed.
8. Later in the morning when light improved, the laneway was canvassed by police. A black strapless bra and a thong were found in the laneway, which items were identified as belonging to the victim. The matching thong was found on the lawn of a house in Adams Street which is adjacent to the entry to the laneway. A Jim Beam bottle and a Jim Beam can were found near those items.
9. Semen detected in the course of the SAIK examination was found to have a DNA profile that matched that of the offender. A fingerprint of the offender's right ring finger was found on the Jim Beam bottle.
10. Blood and urine collected from the victim was found to contain an amount of Temazepam, a common ingredient of sleeping tablets and may have been what the victim took thinking it was an ecstasy tablet. The agreed facts recite that Temazepam when mixed with alcohol leads to amnesia and fragmented memory loss.
11. The offender was brought from custody to Wagga Wagga Police Station on 23 January 2018 where he declined to be interviewed but after receiving legal advice consented to the taking of a buccal swab.

Assessment - plea - file 2018/24012

1. Ms Mendes submitted that the matter involved the offender opportunistically taking advantage of an intoxicated victim. Further it was submitted that there was no physical or verbal resistance and that the offending occurred over a short period of time. Counsel submitted that the matter was at the low end of the mid-range. The Crown made no particular submission on this issue.
2. It was also submitted on this aspect that the offender himself was also intoxicated as there was the offender's fingerprint on the Jim Beam bottle. That is so, but there is no evidence from which I am able to draw an inference that the offender was himself intoxicated.
3. The intercourse was penile/vaginal intercourse and given that semen was found in the SAIK examination it can be inferred that the offender was not wearing a condom and exposed the victim to the possibility of pregnancy. I remind myself of the decisions extracted at [23]-[24] of these reasons.
4. The offending was opportunistic but the offender took advantage of a victim who was intoxicated. Further, it must have been blatantly obvious that she was significantly intoxicated. In all of the circumstances the matter is within the mid-range of objective seriousness.

Issue of General Deterrence

1. The trial matters including count 8 need to be called out for what they are, namely a series of offences of domestic violence. It is no exaggeration to say that barely a day goes by where this court does not deal with matters of domestic violence either on appeal from the Local Court or on indictment. There are issues of general deterrence to be addressed in offences of domestic violence. Women are entitled to be treated with dignity and respect by their domestic partners rather than as some type of chattel.
2. Some of the decisions of the Court of Criminal Appeal relating to the need for deterrent sentences in matters of domestic violence are Hamid [2006] NSWCCA 302 at [86]; Vragovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at [32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86]. See also the remarks on sentence of Fagan J in R v Biles (No 2) [2017] NSWSC 525 at [60]. There is also the decisions of DPP v Darcy-Shillingsworth [2017] NSWCCA 224 and Cherry v R [2017] NSWCCA 150.
3. More recently there is the decision of the Court of Criminal Appeal in Quinn v R [2018] NSWCCA 297 and I note in particular that part of the decision at [242]-[248] inclusive.
4. There is also a need for general deterrence in respect of the sexual assault matter where the plea of guilty was entered. Young women are entitled to go on a night out and enjoy themselves without the expectation that they will be taken advantage of in the manner that this offender took advantage of the victim.

Criminal History

1. The offender was born on 22 June 1996 and accordingly was 21 years of age at the time of the offending and is almost 23 years of age at the time of sentence. He has a lengthy history as a juvenile including for serious matters such as Robbery and Aggravated Break Enter and Commit Serious Indictable offence as well as other matters including a number of matters relating to Take and Drive Conveyance without Consent of the Owner. He was sentenced to a number of Control Orders (s 33(1)(g) of the Children (Criminal Proceedings) Act 1987). He was dealt with by custodial sentence on 28 March 2018 for Drive Manner Dangerous in respect of which a custodial sentence was imposed.
2. The history of the offender does not entitle him to any particular leniency. This observation applies to all matters.

Subjective matters

1. The offender's mother gave evidence at the sentence hearing for the trial matters. As I observed at the sentence hearing that evidence was particularly powerful and speaks eloquently of the unfortunate life that the offender has had to date. Ms Mendes formally tendered that evidence in the sentence proceedings in respect of the matter where a plea of guilty was entered. The following is a summary of her evidence.
2. The offender was born in Orange and grew up in Griffith. His father is serving a lengthy sentence for manslaughter. He went into custody when the offender was quite young. He is not the father of TL's other siblings.
3. The offender was diagnosed with ADHD when he was six. He was also hyperactive and a child who hated to be confined or kept in small spaces. The offender was "trialled" on dexamphetamine, which had a lot of side effects. The offender was "just never himself" when he was taking the medication. Another medication, Catapres, was also used when it was felt that it was needed.
4. During the offender's upbringing in Griffith he was "flogged" by his uncles in a misguided attempt to toughen him. The offender clashed a lot with his brothers. They would hit him if he did something they did not like.
5. Another one of the partners of the offender's mother was heavily dependent on cannabis which was smoked on a daily basis at home.
6. During his childhood the offender would hang around with older boys, one in particular, and he got into a lot of trouble for example for stealing cars and breaking and entering premises. When the offender was 10 or 11 his mother had to collect him from the police station. The older boy had attempted to sexually assault the offender which was something that his mother did not find out about until the day of the sentence hearing.
7. The offender's mother decided to leave Griffith, essentially to end the relationship that she was in at the time and in an effort to give the children a fresh start. The offender did not handle the move from Griffith to Wagga Wagga well and he very much missed his grandparents who were in Griffith. He was easily led and again got into a lot of trouble. He was suspended from school a number of times. Most of the offender's friends were older than him. The offender wanted to be like them and he tried to fit in with the group.
8. The offender suffered a brain injury when he was 12 years and 9 months. He was supposed to be at the local swimming pool with friends. He was harassed by a cousin and tried to hide on a roof at a local school but he fell from that roof. At the hospital his mother was told that her son had been bashed. Police investigated. I was left with the impression that his mother was far from satisfied or impressed with the investigation. The offender missed a lot of school as a result of this incident.
9. After the injury the offender's mother noticed a lot of changes to her son. There was also an issue relating to the manner in which the offender was intubated while being treated for his injuries which led to significant damage being done to his throat. His voice was affected and this embarrassed the offender. The offender has developed an intense hatred of hospitals.
10. The offender was also placed on steroids which resulted in significant weight loss. Until the injury he had been proud of his athletic abilities. It is his mother's opinion that her son has never fully recovered.
11. The offender developed a habit of alcohol and drugs drinking on a daily basis. It was his mother's opinion that this was as a coping mechanism. The offender also became highly dependent on cannabis.
12. The offender returned to Griffith but found himself in trouble with the law and found himself in a juvenile institution. The offender resented his mother for taking him away from his grandparents. His grandmother passed away at a time the offender and his mother were not talking as his mother phoned the police and advised them that her son the offender was in a stolen car. He was told of his grandmother's death when he came on screen in an application for bail via AVL. He was very upset at his grandmother's death and when he got to the residence immediately went and lay beside his dead grandmother. He was not permitted to go to the viewing that was held before the funeral. He felt had he been there with his grandmother he could have obtained help and prevented her death.
13. The offender's nephew was diagnosed with cancer when he was six months old. He was taken to Sydney where he was placed on life support.
14. The offender's mother tries to take the offender's children to see him as often as she can, which when she can manage it is once per fortnight. She is aware that her son has a sweeper's job in custody, which earns him a little extra for phone calls and the like.
15. The offender had engaged with Life Without Barriers before going into custody. That had a positive effect on the offender. His mother does not like to phone her son too often as he gets upset on what he is missing out on and he knows that the children are fretting. They are a close family.
16. That evidence was tendered in the sentence hearing for the matter where the plea was entered. In addition a letter from the offender's mother was tendered and became exhibit 1 on sentence in those proceedings. She sets out that at the time of the offending the offender "was in a pretty bad way", using drugs and having relationship problems. She confirmed that her son does not like talking on the phone.
17. She goes on to say in the letter that her son has made "huge progress" in custody. The offender has expressed an interest in getting back into the shearing industry upon release. She later expands upon his experience in that industry and that he really enjoyed the work.
18. She goes on to say that when she was giving evidence she saw her son break down, which she has never seen before. Further, her son has never said "sorry" as many times as he has in the last few months.
19. The letter also emphasises the offender's sporting abilities and says that her son is getting fit in prison and assisting younger prisoners with their fitness regimes.
20. The offender's mother concludes the letter by saying that they are a close family and she believes that her son has changed his attitudes. Society can only hope this is the case, noting the extract of Dr Wearne's report later extracted in these reasons at [74].
21. When released the offender hopes to work in shearing sheds or other rural industries. He will continue to have family support.
22. In the matter where the plea of guilty was entered, exhibit 2 on sentence is a letter from the offender's sister. She too had never seen the offender break down as he did when his mother was giving evidence. She thought it was a relief to the offender. She goes on to say that on a visit soon after that appearance the offender appeared drained and emotionless but more recently he has been "in a much better headspace". She clearly indicates ongoing family support for the offender.
23. Given the issues that faced the offender in his formative years it is clear that the principles enunciated by the High Court in Bugmy v The Queen (2013) 249 CLR 571 are enlivened, reducing the offender's moral culpability. As counsel for the offender submits, the offender "had a fractured upbringing characterised by incarceration of family, exposure to domestic violence, broken periods of engagement in education…". There was some issue about this at the sentence hearing relating to the trial matter, but I am firmly of the opinion that the principles are invoked in this particular matter. They are also applicable in the matter where the plea was entered.
24. The other significant aspect of the subjective case is the neuro-psychological report prepared by Dr Travis Wearne, which is exhibit 1 on sentence in the trial matter. The same report was also tendered and became exhibit 3 on sentence in the matter where there was a plea of guilty. Curiously the report indicates at the first paragraph that the author of the report was told that the offender is appealing his sentences. A summary of previous assessments indicates that the offender's general intellectual functioning was in the "borderline" range, that there were difficulties with learning and memory, that there were cognitive difficulties as a result of an acquired brain impairment and that his overall functioning with adaptive skills was "extremely low".
25. Dr Wearne's own assessment is at p 8 of the report. The offender's overall level of intellectual functioning fell in the borderline range. He performed in the low average to average ranges in most tasks involving high-order thinking abilities including planning and organisation. At paragraph 23 Dr Wearne opines that, "Overall it can be said that [TL] has made an excellent recovery from a very serious traumatic brain injury. The findings of the offender's assessment, including his intellectual function and adaptive functioning also demonstrate that he does not have an intellectual disability as previously reported."
26. The report also includes background and family information, which has already been summarised when dealing with the offender's mother's evidence.
27. At paragraph 24 Dr Wearne sets out: "It is not yet clear if [TL]'s offending and other erratic behaviours are ingrained and due to personality factors, psychosocial issues (i.e. physical abuse and involvement with unscrupulous peers), neurological factors (i.e. brain injury, substance abuse during critical periods of brain development), the effects of emotional/psychiatric influences (i.e. diagnosis of ADHD and developmental trauma) or a combination of these factors. He will require further assessment over time to determine the factors underpinning his behaviour and to identify his precise treatment and management needs. Notwithstanding this uncertainty, there is little doubt that he is on his way to developing an antisocial personality disorder and progressing along a life-long criminal trajectory. He is presently at a crossroad in his life and whether he follows a prosocial or antisocial pathway will depend on whether he is prepared to take stock of his life and work hard to build a future for himself. The interventions and management he receives now will be critically important in shaping his social trajectory into the future".
28. Counsel for the offender in MFI 1 in the trial matter appropriately emphasises the offending being at a crossroad. There is nothing on which the court could find on balance the offender is remorseful in the trial matter. Likewise, despite the contents of the letters from the mother and sister of the offender there is insufficient to find on balance that the offender is remorseful in respect of the matter where a plea of guilty was entered. Given the age of the offender and the criminal history that the offender has accumulated the court could not find on balance that he is unlikely to re-offend.
29. The opinion of Dr Wearne offers a glimmer of hope so far as rehabilitation is concerned. Ms Mendes submitted in the matter where the plea of guilty was entered that the court could find on balance that there were good prospects of rehabilitation. The offender is working as a sweeper in gaol, he has not committed any disciplinary infractions in custody and he is working on his fitness taken with the family support he enjoys. There is also the issue of him proactively seeking employment as set out in his mother's letter. There certainly some very encouraging signs. However, having given the matter much consideration I am of the opinion that it is still too early to tell. I am not at this stage prepared to find on balance that there are good prospects of rehabilitation. Society can only hope that the offender makes the correct choices in life from now.
30. That essentially was the submission made by the Crown in both matters. In the sentence hearing in the trial matter the Crown emphasised that part of Dr Wearne's report that is extracted at [74] above.
31. On this aspect, it seems that it is to a significant extent up to the offender to determine which path he wants to take. Certainly, given the age of the offender and the contents of Dr Wearne's report there must be a reasonably generous finding of special circumstances. There is a need for a longer period of supervision to ensure that the interventions by the parole authorities can be effectively utilised. Further, the offender will need some assistance in the reintegration into the community. Indeed that assistance and supervision will need to be both intensive and extensive. The offender should be given every opportunity to ensure that he takes the path of prosocial rather than antisocial. This may well involve a course of intensive or even residential rehabilitation. Ms Mendes also appropriately submitted that there should be a finding of special circumstances in the matter in which she appeared.
32. The submission is made on behalf of the offender in the trial matter that he is in danger of institutionalisation. I agree that there is that danger. He is now almost 23 years of age and on the calculations by counsel for the offender in the trial matter and confirmed by Ms Mendes in the other matter he has spent only 20 months since he was 18 in the community rather than in custody. This point was also emphasised in the sentence hearing for the matter involving the plea of guilty. However, there is also the decision of Beale v The Queen [2015] NSWCCA 120, particularly at [68]-[69] per Beech-Jones J. Nevertheless there are a number of factors that justify a reasonably generous finding of special circumstances. These include the partial accumulation of sentence on a sentence imposed in the Local Court for driving offences.
33. The offender is almost 23. While he is a young offender he could not be described as a youthful offender. To an extent the offender is entitled to some consideration given his age. In particular I take into account the principles enunciated by Hulme J in Locke v R [2010] NSWCCA 296 in particular at [41]-[49] and the various authorities referred to by his Honour. Youth was one of the matters emphasised by Ms Mendes in her oral submissions in the matter where a plea of guilty was entered.
34. I will deal with the other submissions made on behalf of the offender in the matter where the plea of guilty was entered. I have already dealt with the issue of the discount for the plea of guilty. I have referred to the extensive family support that the offender enjoys. I have dealt with the issue of the objective seriousness of the offending. The issues relating to the offender's background and the "Bugmy" factors were emphasised by counsel.
35. Ms Mendes also addressed on the issue of totality citing the authorities of Postiglione v The Queen (1997) 189 CLR 295 and MAK & MSK v R (2006) 167 A Crim R 159. I also note the decision of Cahyadi v R [2007] NSWCCA 1 at 27 per Howie J. As I observed at the sentence hearing in the matter involving the plea of guilty the authorities go back to what was said by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260, namely, "The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
36. I had indicated in the sentence hearing in respect of the trial matter that I was proposing to impose an aggregate sentence. It would seem to be appropriate to include the matter in which the plea of guilty was entered as part of that aggregate sentence. However, appropriate regard will need to be given to the separate offending and the separate victim. If separate sentences were imposed there would need to be a meaningful degree of partial accumulation in respect of the matter where the plea of guilty was entered.

General Remarks

1. Counts 1 to 7 in the trial matter would ordinarily be dealt with to finality in the Local Court. However given count 8 and the manner in which the offences are connected, it is appropriate that all of the offences be dealt with on indictment in the District Court. However, I do not propose to exceed the jurisdictional limit of the Local Court in respect of any of the offences in counts 1 to 7 inclusive in the trial matter.
2. The offender has been in custody since his arrest on 13 November 2017. He was charged with the matter where the plea of guilty was entered after that date. A further complication is that he was sentenced to imprisonment for five months in respect of driving offences, which sentence commenced on 11 November 2017 and expired on 10 April 2018. I agree with counsel for the offender in the trial matter that in the interests of totality that the commencement date for the sentences to be imposed in respect of the present matters should be before 10 April 2018. An appropriate commencement date is 11 January 2018.
3. I remain of the opinion that this is an appropriate matter for the imposition of an aggregate sentence. As counsel for the offender correctly submits the offences in the trial matter occurred over a period of three weeks. Counts 2 and 3 relate to one ongoing episode and counts 4, 5 and 6 likewise relate to one ongoing episode. Counts 7 and 8 are close in time. Providing the principles enunciated by the Court of Criminal Appeal in Cahyadi [2007] NSWCCA 1 at [27] are properly applied the sentences in respect of counts 2 and 3 could be concurrent as could be the sentences in respect of counts 4, 5 and 6. However, if separate sentences were imposed there would need to be some partial accumulation in to recognise the different episodes of offending. I have already dealt with this issue relating to the matter where the plea of guilty was entered.
4. Proper regard and effect must be paid to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. Section 5(1) provides in effect that a court should not impose any sentence of imprisonment unless it comes to the conclusion that having all alternatives no other alternative is appropriate. Given the multiplicity of the offending, the fact that count 8 involves a sexual assault, the maximum penalties provided, the standard non-parole period in respect of count 8 and the need for general deterrence in matters of domestic violence I am firmly of the opinion that no other sentence is appropriate. It was not submitted otherwise in either matter.
5. Section 3A sets out the purposes of punishment, namely: 1. To ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
6. As I propose to impose an aggregate sentence it will be necessary to set out what sentences would have been imposed had separate sentences been imposed. These remarks have been reduced to writing and the parties will receive a copy immediately after the pronouncement of sentence.
7. The sentences that would have been imposed had separate sentences been imposed are as follows: Trial Matter: 2017/343357 A total sentence of 15 months imprisonment Count 1: Counts 2, 3, 4, 5 and 7: A total sentence of 12 months imprisonment Count 6, noting it involved a kick to the head: A total of 18 months imprisonment Count 8 A non-parole period of 2 years 3 months with a period of parole of 1 year 6 months making a total sentence of 3 years 9 months. Matter - plea - 2018/24012 Count 1 A non-parole period of 2 years and 9 months with a balance of term of 1 year and 9 months making a total sentence of 4 years 6 months with a starting point of 5 years.

Orders

1. I invoke section 53A of the Crimes (Sentencing Procedure) Act 1999 and impose an aggregate sentence.
2. In respect of counts 1 to 8 inclusive on the indictment on file 2017/343357 and the one matter on file number 2018/24012 the offender is convicted. The offender is sentenced to an aggregate sentence of 7 years with a non-parole period of 4 years 4 months. The non-parole period will commence on 11 January 2018 which will expire on 10 May 2022. There will be a period on parole of 2 years and 8 months from 11 May 2022 to 10 January 2025.
3. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
4. The sentence indicates a substantial finding of special circumstances the reasons for which have been enunciated in these reasons. The non-period is approximately 62.5% of the total sentence.

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