Rajendran v R

THE FACTS 6The following summary is taken from her Honour's remarks on sentence. 7In or about early March 2009 the appellant, using the pseudonym "James Carter", began to communicate with AB via "My Space". They subsequently communicated with each other by email. AB was apparently wishing to enter the modelling industry and the appellant falsely portrayed himself as an agent working for the "La Perla" lingerie company, and thus someone who could assist AB with her chosen career. 8In the course of their correspondence the appellant and AB discussed meeting in the city. AB then made arrangements to meet the appellant for what she thought was an interview for prospective work as a model. The appellant, in a continuation of his deception of AB, asked her to send him a resume for his records. 9On the evening of 10 March 2009 AB went into the city and met the appellant. At his instigation, they went to a bar where AB consumed champagne and became well affected by alcohol. 10The appellant then invited AB to go with him to discuss how she would undertake modelling assignments for La Perla. That was obviously not the case. They arrived at premises which were in fact the appellant's place of employment, to which he had 24 hour access 11After they went inside the premises the appellant left the room twice, once to get a glass of water and once to turn off a light switch. When he came back on the second occasion he lent over and tried to kiss AB. AB's response was to say to the appellant: "I really didn't come here for this". 12 AB then told the jury: "And I got quite frightened because I knew that I wasn't meant to even be there. And then he apologised and told me to sit back down...the next thing I remember he tried to, he tried to change the subject and put the pictures back on the table again for me to look at. But then I can't remember anything except that the next thing I remember I was sitting on the desk and he was leaning over the top of me, trying to kiss me...That is only a quick flash that I can remember so I don't really remember how I responded...I was leaning back and my feet were off the ground and he was leaning over the top of me". 13AB described in her evidence how the appellant leant across her chest towards her face, and that the next thing she remembered was laying on the ground crying. She described feeling "really really scared and frightened" as she lay on the floor, and thinking that she did not wish to be there. She described that at that point she could "hardly breathe". 14As she lay on the floor crying, she had no clothes on, with the exception of her skirt which was around her waist. She described the appellant standing above her, naked from the waist down, placing a condom on his penis. 15The appellant's crying increased to the point where she described it as "fairly loud". She said that she had "tears all over her face". She explained that she "sort of knew what was going to happen...and (she) couldn't really do anything because (she) was so out of it at the time". She then said: "He leant down and started having sex with me. He put his body directly on top of mine and his arms either side of my body...I was hysterical, loudly crying, it hurt...I couldn't breathe properly because I was so upset". 16AB said that the appellant asked her more than once during intercourse why she was crying, and told her to stop. She said that by the time that she could remember that intercourse had ceased the appellant was already dressed, although she remained on the ground crying. She recalled rolling over, seeing her clothes and trying to put them back on. She described herself at that point as "still crying ... really hysterical ... frightened (and) ... short of breath". She said: "...he did say to me then that that was between me and him and not to tell anybody about it, that he would make me into a big model if I didn't tell anybody".

A PRELIMINARY ISSUE 17I have already noted that this matter came before this Court pursuant to an order of Johnson J, which was made consequent the appellant's application under the Review Act. It is apparent from the reasons of Johnson J (at [17] - [18]) that his Honour made that order solely on the basis that it was open to conclude that the sentencing judge had, contrary to the decision in Muldrock, engaged in a two-stage approach to sentencing the appellant. That issue forms the basis of Ground 1 of the present appeal. 18However, the appellant sought to rely upon three additional grounds in which he asserted other errors on the part of the sentencing judge. Those errors formed no part of his application under the Review Act. As a consequence, they were not matters considered by Johnson J and they formed no part of the basis upon which his Honour ordered the referral of the matter to this Court. 19In written submissions the Crown argued that in order to rely upon Grounds 2, 3 and 4 the appellant required both an extension of time and the leave of the Court. In opposing both, the Crown relied upon previous submissions made to this Court in R v Luizos in which the same issue arose. That appeal was heard by a differently constituted bench of this Court, and judgment is presently reserved. 20In response to the Crown's position, and in the course of careful and comprehensive oral submissions, counsel for the appellant submitted that there was no requirement for either a grant of leave or an order extending time in respect of Grounds 2, 3 and 4. In summary, counsel for the appellant submitted that the reference in s. 79(2) of the Review Act to "the whole case", as well as the use of the word "appealed" in s. 86 of the same Act, supported the conclusion that a referral of a matter to this Court following an application under s. 79 of the Review Act encompassed a referral of the entirety of the case and encompassed all relevant issues. In further support of that submission, counsel referred the Court to a number of authorities including Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259; Mallard v R [2005] HCA 68; (2005) 224 CLR 125; JJT v R [2006] NSWCCA 83; and Kearns v R [2011] NSWCCA 103; (2011) 213 A Crim R 150. 21In the alternative, counsel for the appellant submitted that if the Court found that Ground 1 was made out, it would be open to consider the matters raised in Grounds 2, 3 and 4 in the course of determining, in accordance with s. 6(3) of the Criminal Appeal Act 1912, whether some other sentence was warranted in law and should have been passed. 22For the reasons more fully set out below, I have concluded that the error asserted in Ground 1 is made out. That being so, the provisions of s. 6(3) of the Criminal Appeal Act 1912 are enlivened. In those circumstances it is not necessary for this Court, in order to determine the appeal, to reach a conclusion as to whether the appellant requires an extension of time, or leave of the Court, to rely upon Grounds 2, 3 and 4. The matters raised in those grounds will be considered in the context of the exercise of the Court's function under s. 6(3). Ground 1 - The sentencing judge erred in adopting a two-stage approach to the sentencing task and gave the standard non-parole period determinative significance

The findings of the sentencing judge 23In the course of the sentence proceedings, her Honour said the following in an exchange with counsel (commencing at T13 L22): "But what are the matters that go towards not imposing the standard non-parole period? The standard non-parole period is seven years against the maximum penalty of fourteen. You've got to give me specifically the reasons why you would not - matters aggravating, well, you say one of the features is you say it's moderately below but the standard non-parole period, even if you were of that view, and I'm not saying I am, is still a guide post, even if its not within the middle range and its still necessary for the judge to say where it falls and the reason for not imposing the standard non-parole period, mitigating and aggravating." 24Subsequently, at T21 L39 her Honour asked Counsel then appearing for the Crown: ".... what, if any, features do you say may call for some moderation of the standard non-parole period? 25Later, when considering some of the authorities to which she had been referred by the Crown her Honour said (at T22 L21): "But where's the reasons why they didn't impose the standard non-parole period? I don't see them, where are they?" 26Against this background, when imposing sentence her Honour said (at ROS 9): "In my view the objective seriousness of the offence falls within the middle range but in the band - if you see it as a band, which one must, being the middle range and the lower band of the middle range - towards the top of the lower band of the middle range". 27Her Honour continued (at ROS 11): "The Crown said there were no aggravating factors in this case and the defence agreed with that. He has said he is prepared to seek assistance in respect of his offending behaviour." Section 54A(2) provides as follows: For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division. I have already said that this is a table (sic) offence. Section 54B provides (2) When determining the sentence for the offence, the court is to set the standard non-parole as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s. 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account. Within s. 21A there are the specific factors or features found within that section but in addition s. 21A(1)(c) is "any other objective or subjective factor that affects the relative seriousness of the offence." In my view, given the features that I have stated, that is to say his prior good character, he is a person with no prior record, he has worked and because of his age has a reasonable stock of good character, it is those factors which in my view allow some modification in his favour of the standard non-parole period." 28Her Honour then said (at ROS 12): "I remind myself that the maximum penalty is fourteen years and the standard non-parole period is seven years. Another reason for there being some modification of the standard non-parole period in this case is that I am of the view that there are special circumstances..."

Submissions of the appellant 29It was submitted on behalf of the appellant that the sentencing judge had engaged in an impermissible two-stage process of sentencing, firstly by giving primary (or perhaps determinative) significance to the standard non-parole period, and then by making an enquiry as to whether there were matters which justified the imposition of a non-parole period which was longer or shorter than that which was prescribed. This, it was submitted, was contrary to the decision in Muldrock (supra). 30Reference was also made to the earlier judgment of this Court which determined the appellant's earlier appeal, and to the observations of Simpson J (at [70]) which, it was submitted, reflected the adoption of the same approach as that of the sentencing judge. Submissions of the Crown 31The Crown submitted that the sentencing judge had made findings as to the objective gravity of the offence and had then turned to consider the entirety of the appellant's subjective circumstances. It was submitted that when the sentencing remarks were read as a whole, it was clear that the sentencing judge had taken all relevant matters into account and had used the standard non-parole period not in a determinative way, but rather as a guide to the exercise of her sentencing discretion. It was submitted that such an approach was perfectly permissible and did not contravene the principles set out in Muldrock (supra) (as to which see Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 per Johnson J at [43] (with whom McClellan CJ at CL and Rothman J agreed)).

Determination 32In Muldrock (supra) the High Court concluded (at [25]) that it was an error to regard the terms of s. 54B(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") as requiring a court to use the standard non-parole period as the starting point for determining whether an offence was appropriately assessed as being in the middle of the range. The High Court concluded (at [26]) that it was an error to give primary, let alone determinative, significance to the standard non-parole period, and that the correct approach was to identify all the relevant factors (including any prescribed standard non-parole period) before making a value judgment as to the appropriate sentence. 33Importantly (at [28]) the High Court specifically rejected the adoption of a two-stage approach to sentencing, commencing with an assessment of whether the offence falls in the middle of the range of objective seriousness, followed by an inquiry as to whether there are matters justifying the imposition of a non-parole period which is longer or shorter than that which is prescribed. In arriving at these conclusions, the Court held that R v Way (2004) 60 NSWLR 168 had been wrongly decided. 34This Court has observed on a number of occasions that in determining whether or not a Muldrock-type error has been established, it is necessary to review the reasons for sentence as a whole and not confine examination to one particular passage or sentence which is said to reflect error (see for example Essex v R [2013] NSWCCA 11 at [30], citing Aldous v R [2012] NSWCCA 153 at [2] and Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [43]). What must be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error so as to enliven the court's discretion to intervene. 35With these matters in mind, I am satisfied that the error for which the appellant contended in Ground 1 has been made out. 36Although the sentencing judge made reference to the relevant objective and subjective factors, it is evident from what her Honour said in the sentence proceedings, as well as from her remarks on sentence, that her Honour regarded herself as being tied to the standard non-parole period. In my view, it is clear that having assessed where the offending fell in terms of a range of objective seriousness, her Honour embarked upon a determination of whether or not there were features which justified a departure from the standard non-parole period. In doing so, her Honour applied the two-stage process to sentencing which the High Court concluded in Muldrock was erroneous. 37In these circumstances, error having been found, the matters raised in Grounds 2, 3 and 4 will be considered in determining whether some other sentence is warranted in law and should have been passed. In this regard it should be emphasised that the appellant has not asserted, and it is not necessary for the appellant to establish, that the sentence imposed was manifestly excessive.

Ground 2 - The sentencing judge erred in failing to sentence the appellant on the basis that he was unreasonably mistaken as to AB's consent.

The relevant legislative provisions 38In order to place the issue raised by this ground in its proper context some brief reference to the relevant legislative provisions is necessary. 39Section 61I(1) of the Crimes Act, under which the appellant was charged is in the following terms: 61I Sexual assault Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. 40Section 61HA(3) of the same Act is in the following terms: 61HA Consent in relation to sexual assault offences Knowledge about consent ...... (3) A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. 41In the context of the present case, the effect of s. 61HA(3) was that in order to prove the element of knowledge the Crown was required to establish beyond reasonable doubt that the appellant: (i)knew that AB did not consent to the sexual intercourse; or (ii)was reckless as to whether AB consented; or (iii)had no reasonable grounds for believing that AB consented.

The sentence proceedings 42 On the basis of the evidence of AB (set out at [11]-[16] above) the Crown made the following submission to the sentencing judge (at T3 L8 and following): "...your Honour's discussion with me was the necessity of leading the different states of mind that the Crown insisted upon, that is whether there was a knowledge of lack of consent or whether there was recklessness or whether the offender did not reasonably believe that she was consenting. In our submission, your Honour, should sentence the offender on the basis that he knew she was not consenting because of what she said to him, "I didn't come here for this", because she was crying - - ...visibly. Although, of course, our case was that really she had in a sense surrendered but there's sufficient detail there for the offender to have known she was not consenting" (emphasis added). 43Her Honour then inquired (commencing at T3 L31) whether, in the Crown's submission, actual knowledge of a lack of consent, as opposed to recklessness in that regard, would render the offending more serious. The Crown responded by submitting that there was no "blanket" proposition which rendered one more serious than the other. 44Subsequently the following exchange took place between the Crown and her Honour (at T4 L49 and following): CROWN: But its at that point that he is - either has direct knowledge or he is reckless or his belief is unreasonable, whichever way you look at it that she -- HER HONOUR He always planned to take advantage of her didn't he? CROWN: He always did. He always did. ...... 45It was conceded that counsel for the appellant on sentence made no submission whatsoever in relation to this issue. The findings of the sentencing judge 46The sentencing judge reached the following findings (commencing at ROS 13): "In relation to this matter being a case in respect of which the more recent provisions concerning consent applied, a number of directions were given in that connection. The jury of course had to be of the view that she did not consent and that there was relevant knowledge of lack of consent. Actual knowledge and recklessness were left to the jury. Also the direction was given concerning reasonable grounds. In my view it is difficult to be satisfied beyond reasonable doubt as to the precise basis of his knowledge of lack of consent. In my view, and consistent the jury's verdict, it is clear she did not consent. To my mind it does not really matter in this case in terms of the seriousness of the offending whether it be actual knowledge or recklessness - or to put it another way, it does not really matter which phrase was (sic) upon which the jury found he had relevant knowledge. What is clear though is that they accepted that he did have relevant knowledge in terms of her lack of consent."

Submissions of the appellant 47Counsel for the appellant submitted that her Honour had erred in failing to consider the appellant's knowledge in the context of s. 61HA(3)(c). Counsel submitted that it was incumbent upon the sentencing judge to give consideration to that issue, even in the absence of any submission having been made in relation to it by counsel who appeared for the appellant on sentence. 48Counsel took particular issue with her Honour's observation that "it did not really matter" whether a finding was reached as to whether the appellant had actual knowledge on the one hand, or was reckless on the other. It was submitted that if a conclusion had been reached that the appellant was unreasonably mistaken about the fact that AB did not consent (as opposed to knowing that she did not consent or being reckless as to that issue) such a conclusion would have had the effect of decreasing the seriousness of the offending and the associated need for the imposition of condign punishment (see Sabapathy v R [2008] NSWCCA 82 at [70]). 49It was further submitted that if it were the case that her Honour was not able to be satisfied beyond reasonable doubt of the basis of the appellant's knowledge, the appellant ought to have been sentenced on the most favourable basis, namely that he had no reasonable grounds for believing that AB consented (s. 61AH(3)(c)). Submissions of the Crown 50The Crown submitted that the evidence supported a conclusion that the appellant knew that AB was not consenting to sexual intercourse and that any reference to recklessness on the part of the sentencing judge was a generous one. It was submitted that in circumstances where the sole issue before the jury was that of consent, the jury had obviously accepted the account of AB. In this regard the Crown pointed, in particular, to the evidence of AB set out in [11]-[16] above and submitted that it must have been clear to the appellant that AB did not consent.

Determination 51As set out in [42] above, the Crown specifically submitted that the sentencing judge should find that the appellant knew that AB did not consent. The Crown's subsequent reference to alternative bases upon which knowledge may have been found (at [44] above) was made in the context of an exchange with her Honour as to the issue of planning. Those references did not qualify, or in any way derogate from, the Crown's clearly stated position that her Honour should find that the appellant knew that AB did not consent. 52The Crown having put that position, counsel then appearing for the appellant did not respond to it. It was submitted on behalf of the appellant in this Court that notwithstanding the absence of any submission in response to that of the Crown, the sentencing judge was nevertheless required to sentence the appellant on the basis of s. 61AH(3)(c) because that was the most favourable basis upon which to do so. In this regard counsel for the appellant relied upon the decision in R v Isaacs (1997) 41 NSWLR 374. 53I am unable to accept that submission. As a general proposition, a party will be bound by counsel's conduct of proceedings at first instance (see generally Zreika (supra) at [79]-[80] per Johnson J (McClellan CJ at CL and Rothman J agreeing); see also Beldon v R [2012] NSWCCA 194 per Johnson J (at [36]) (McClellan CJ at CL and Hammerschlag J agreeing)). In the present case counsel for the appellant on sentence took no issue with the Crown's stated position. In my view, the matter not having been put in issue, the sentencing judge was not required to consider it. 54In Poniris v R [2014] NSWCCA 100 this Court recently considered the issue of whether a trial judge was required to consider the exclusion of evidence under s. 137 of the Evidence Act 1995 in circumstances where no reliance was placed upon the provisions of that section by counsel who appeared for the appellant at trial. Macfarlan JA (with whom the other members of the Court agreed) concluded (at [50]) that the trial judge had not erred in not considering the matter. In my view, the reasoning which led the Court to that conclusion is equally applicable in the present circumstances. The parties define the issues in proceedings. In the present case, counsel for the appellant on sentence took no issue with the Crown's position as to what her Honour should find in respect of the appellant's knowledge. 55The decision of this Court in Isaacs (supra) is not authority for the proposition that there is a general requirement that a sentencing judge must sentence an offender on the most favourable factual basis which is available. This Court (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ) said (at 378): "4. ...... findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of a view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris. However, the practical effect of 4 above, in a given case, may be that because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. When that occurs, it will be because of the application of the principles referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency: R v Lupoi (1984) 15 A Crim R 183 at 184. 56It was not put to her Honour that she should entertain any reasonable doubt about the Crown's proposition that the appellant knew that AB did not consent. In these circumstances, contrary to the submission advanced on behalf of the appellant before this Court, the decision in Isaacs did not compel her Honour to sentence the appellant on the basis which was most favourable to him. 57For these reasons Ground 2 is not made out.

Ground 3 - The sentencing judge erred in finding that the mitigating factor of remorse was not present.

The evidence 58A Pre-sentence report was tendered before the sentencing judge. Under the heading "Attitude to the offence" the following was stated: "The offender agreed with the police facts. He stated that although he feels the sex was consensual he acknowledged that he has caused the victim a great deal of pain and was very sorry for that. He said that he is ashamed of what has happened and is willing to accept punishment and treatment accordingly. He stated that he is keen to address his offending behaviour to minimise his risk of re-offence and was adamant that he wanted to express his sincere regret to the victim" (emphasis added). 59The appellant's statements led the author of the Pre-sentence report to make the following observation: "It is concerning that he appears to have failed to recognise that the victim was not a willing participant in what he believed was a casual sexual encounter". 60The appellant also wrote a letter to the sentencing judge which was tendered on sentence and which stated (inter alia) as follows: "Your Honour, first and foremost, I would like to apologise to (AB) for the pain and distress I brought to her. I lied about who I was and what I could do in organising the meeting. This is a cross I still carry and apologise from the bottom heart. If I had felt even in the slightest that (AB) was not consenting or was not in a state of mind to make that decision, the events as they happened that evening would not have. Still your Honour I have caused grief to (AB) for which I am deeply sorry" (emphasis added). 61The letter then continued: "Your Honour this letter is by no means meant to undo my mistake but only the start of a new journey for me" (emphasis added). The findings of the sentencing judge 62Against the above background her Honour said (commencing at ROS 17): "He wrote a letter to the court which became Exhibit 1. I have taken into account the contents of that. Further, he apologised to the victim in the pre-sentence report and indicated he was sorry for his behaviour. However, as the Crown pointed out, he still has not taken responsibility for his offending behaviour. In his mind he did not commit any offence." 63Section 21A(3)(i) of the Sentencing Act provides that remorse shown by an offender is a mitigating factor if: (i)the offender has provided evidence that he or she has accepted responsibility for his or her actions; and (ii)has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury loss or damage (or both). 64Having referred to those provisions her Honour continued (at ROS 18): "It could not be said that he has accepted responsibility for his actions. Having said that, I do give some small weight to his statement concerning - in terms of his apology and show of remorse for the offence but that is some very limited, small weight so the mitigating factor of remorse is not present in this case."

Submissions of the appellant 65The essence of what was put on the appellant's behalf in support of this ground appears at paragraph (42) of the written submissions: "However, if the appellant was sentenced on the basis that his state of mind was unreasonably mistaken (as submits he should have been, if ground 2 succeeds, and should be if he is re-sentenced by this Court), remorse was present. He accepted responsibility for his mistake. Her Honour's finding that remorse was not present is thus both indicative of the fact that she sentenced the appellant on the basis of the more serious of the contested facts, which she did not find proved beyond reasonable doubt, and that this error likely increased the term of the appellant's sentence, if for no other reason than that he was denied the full benefit of his remorse."

Submissions of the Crown 66The Crown submitted that there was no error arising from her Honour's findings. It was submitted that those findings were amply supported by the evidence and that statements made by the appellant supported the conclusion that he was not remorseful.

Determination 67It will be apparent from paragraph [65] above that the appellant's position on this ground was predicated, to some extent, on the basis that Ground 2 would be upheld. For the reasons I have already expressed Ground 2 cannot succeed. However, there are difficulties faced by the appellant in respect of the present Ground which are independent of Ground 2. 68It is apparent from the contents of the Pre-sentence report that even after the jury's verdict the appellant continued to assert that the intercourse was consensual. Further, in his letter to the sentencing judge the appellant asserted, in effect, that there had been no indication given by AB that she was not consenting. In my view, those assertions are contrary to the evidence of AB, and at odds with acceptance, by the appellant, of responsibility for his actions. They are equally at odds with an acceptance, by the appellant, of the jury's verdict. 69In my view, her Honour's conclusion that there was no remorse on the part of the appellant was correct. For these reasons, Ground 3 is not made out.

Ground 4 - The sentencing judge erred in failing to find that the appellant was unlikely to re-offend.

The findings of the sentencing judge 70The Pre-sentence report, under the heading "Treatment Options" stated the following: "Mr Rajendran's static actuarial risk of sexually reoffending, as assessed by the Static-99, is low (Static-99 score of 1). However due to the presence of a number of dynamic risk factors existing around the time of the sex offence that may not have been fully addressed to date. Mr Rajendran's overall risk (Static risk and Dynamic risk) of sexual reoffending as (sic) moderate-low." 71Her Honour was obviously aware of the Pre-sentence report, having expressly referred to it in her sentencing remarks (at ROS 9). She did not refer specifically to the passage set out above but did reach the following finding (at ROS 19): "...... In my view he has fair to reasonable prospects of rehabilitation..."

Submissions of the appellant 72It was submitted on behalf of the appellant that her Honour did not refer, at any point, to the conclusion expressed in the Pre-sentence report that the appellant was a low to moderate risk of sexual re-offending. It was submitted that this was a mitigating factor which should have been taken into account in the appellant's favour having regard to s. 21A(3)(g) of the Sentencing Act, and that her Honour's failure to do so amounted to a material error. Submissions of the Crown 73The Crown submitted that there was no obligation upon the sentencing judge to reach a finding that the appellant was unlikely to re-offend. It was submitted, in effect, that her Honour had addressed this issue when expressing her findings in relation to the appellant's prospects of rehabilitation and that no error had been established.

Determination 74In the present case, her Honour gave ex tempore reasons immediately following hearing submissions. This Court has said on a number of occasions that ex tempore reasons given by Judges of the District Court in the conduct of a busy list should not be overly scrutinised (see for example Rose v R [2013] NSWCCA 71 at [41] (per Bellew J, Hoeben CJ at CL and Slattery J agreeing) citing Gommesen v R (2012) 62 MVR 196; [2012] NSWCCA 226 at [37]-[38] and Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10 at [33]). 75Her Honour did not expressly refer to the appellant's assessed risk of sexual re-offending which was recorded in the Pre-sentence report. However, the absence of any reference to that matter does not automatically lead to the conclusion that it was not taken into account (see for example Delaney v R [2013] NSWCCA 150 at [85]-[88] per Hoeben CJ at CL, Harrison and Beech-Jones JJ agreeing). 76Her Honour was obviously aware of the Pre-sentence report and its contents. She made a specific finding as to the appellant's prospects of rehabilitation, an issue to which the risk of further offending was obviously relevant. It was clear from her overall approach that she had regard to the relevant principles. 77For these reasons, Ground 4 is not made out.

Is some other sentence warranted in law? 78Notwithstanding my determination of Grounds 2, 3 and 4 it remains necessary to consider whether some other sentence is warranted in law and should have been passed. In this regard, and aside from reliance upon the matters agitated in support of Grounds 2, 3 and 4, counsel for the appellant relied upon: (i)sentencing statistics; (ii)sentences imposed in other cases of similar offending which were said to provide "useful guidance" to the determination of an appropriate sentence; and (iii)the appellant's affidavit evidence. 79As to the first of those matters, counsel for the appellant relied upon the fact that the relevant statistics demonstrated that of all relevant offenders, the sentence imposed upon the appellant was the longest by 1.5 years. 80As to reliance upon sentences imposed in other cases it was expressly conceded on behalf of the appellant that none of the cases to which this Court was referred were "precisely analogous". However with that qualification, this Court was referred to four particular cases for comparative purposes, namely R v JRB [2006] NSWCCA 371; Salmond v R [2010] NSWCCA 141; Sabapathy v R [2008] NSWCCA 82; and McCartney v R [2009] NSWCCA 244. 81It was further submitted that the affidavit evidence established (inter alia) that the appellant: (i)was remorseful; (ii)had completed a sexual offender's course; (iii)had attempted to enrol in other courses but (through no fault of his own) had not been successful in doing so; and (iv)had been denied a C3 classification which had rendered his conditions of custody more onerous. Submissions of the Crown 82The Crown submitted that in light of the wide range of conduct embraced by the definition of "sexual intercourse" for the purposes of s. 61I, it was necessary to adopt a cautious approach when considering sentencing statistics (see R v Hibberd [2009] NSWCCA 20; (2011) 194 A Crim R 1). 83The Crown analysed some of the cases relied upon by the appellant for comparative purposes and submitted that each was distinguishable from the case of the appellant in various material respects. The Crown submitted that consistency in sentencing necessarily involves consistency in the application of relevant legal principles, as opposed to numerical equivalence (see Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 at [40]). 84As to the affidavit evidence, the Crown submitted that it did not place the appellant in any different position to that in which he found himself when originally sentenced. 85Finally, the Crown submitted that the sentence imposed by her Honour was entirely warranted on the facts.

Consideration and conclusion 86The necessity to take a generally cautious approach to the use of sentencing statistics has been emphasised by this Court on a number of occasions (see for example Jolly v R [2013] NSWCCA 76 at [53], citing R v Nikolovska [2010] NSWCCA 153). This is because statistics, of themselves, may be of limited use. 87Moreover, the fact that a particular sentence, by reference to statistics, is established as being the longest ever imposed for particular offending is, by itself, of limited assistance in determining whether some other sentence is warranted. In Jolly (supra) with the concurrence of Hoeben CJ at CL and Slattery J, I made the following observations (at [75]): "As to ground 5, the first observation to be made is that simply because a particular sentence is the highest which has ever been imposed for a particular offence does not, without more, establish manifest excess. Such a bald proposition necessarily fails to take into account the circumstances of the particular offending, and the circumstances of the offender, which resulted in the particular sentence being imposed. There is also considerable merit in the Crown's submission that, as a matter of common sense, there will always be a sentence which constitutes the longest sentence imposed for a particular type of offending." 88Those observations were made in the context of determining a ground of appeal which asserted that the sentence imposed was manifestly excessive. As I have noted, the appellant makes no such complaint in the present case and is not required, for the purposes of s. 6(3), to prove manifest excess. However, such observations remain apposite in light of the submission made on the appellant's behalf. 89Sentences imposed in other cases of similar offending may be used as a yardstick to determine whether some other sentence ought to have been imposed. Again however, it is necessary to approach any such exercise with caution. In Director of Public Prosecutions (Cth) v Blackman; Director of Public Prosecutions (Cth) v Jomaa [2014] NSWCCA 90 I made reference (with the concurrence of Beazley P and R A Hulme J) to the observations of Grove J in R v Todoroski [2010] NSWCCA 75. In that case, his Honour (with the concurrence of Allsop P (as his Honour then was) and Hislop J) said at [26]: "...Every offence and every offender is different and the essential aim of all sentencing is to render individual justice. Comparable cases and statistics can be useful guides and departure from established sentencing patterns would require justification, but the exercise of sentencing discretion must be directed to fulfilment of the stated aim". 90In the same case I also observed (at [64]) that in order to render the individual justice to which his Honour referred, care must be taken when the Court is asked to compare the sentence imposed in one case with the sentence imposed in another (as to which see RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing; see also R v Nguyen and Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238). 91It is not necessary in the present circumstances to undertake an analysis of each of the cases to which the Court was referred for comparative purposes. It is sufficient for me to note that there are various features which distinguish such cases from that of the appellant. They are, in my view, of limited assistance in determining whether some other sentence is warranted. 92I have had regard to the appellant's subjective circumstances. He is an obviously intelligent and well educated person of otherwise good character. His first marriage broke down as a result of his offending, and as a consequence he has been separated from his daughter since being taken into custody. Those circumstances, as well as the conditions of his incarceration set out in his affidavit, have rendered his sentence more onerous. As the sentencing judge found, his prospects of rehabilitation appear favourable and I am satisfied that the prospects of him re-offending are generally low. He has apparently formed a new relationship which will obviously assist his rehabilitation, as will the support that he enjoys from his family. 93The appellant's affidavit demonstrates that he has been a generally responsible inmate against whom no disciplinary findings have been made. It also evident that he has taken every step possible in terms of rehabilitation by seeking to enrol in appropriate treatment programs. Unfortunately, through no fault of his own, some of those programs have not been made available to him. 94It is necessary however to balance all of those matters against the offending. 95It was not the Crown case that the offending was planned. To the extent that there was a plan, it was one to have consensual intercourse with AB. However, even in the absence of any planning the offending was obviously serious. Having effectively adopted a false identity, the appellant lured AB to meet with him under a false pretence, and then brought her back to his office where he forced sexual intercourse upon her. The evidence of AB, in my view, overwhelmingly supported the conclusion that the appellant knew that she did not consent. 96On the basis of AB's evidence the appellant continued to exploit her even after intercourse had taken place by telling her, in effect, that her ambition would be realised providing she did not divulge what had occurred. In doing so, the appellant continued to falsely represent to her that he was someone who could assist her career. 97Moreover in my view, the appellant continues to demonstrate no remorse for his offending. In his affidavit of 8 May 2014, consistent with the tone of his letter to the sentencing judge, he continued to classify his conduct as a "mistake", explaining that he had "missed what the victim was communicating" when there were "cues that (he) should have picked up on". Those statements, in my view, significantly understate the true nature of the offending. Perhaps even more importantly, they reflect a continuing inability, or perhaps a refusal, on the part of the appellant to accept responsibility for his actions. 98AB told the appellant, within a very short time of arriving at his office, that she had not gone there to have sex. That statement, and her subsequent distressed state, were not simply "cues". They were clear and unequivocal statements that she did not consent to sexual intercourse. In my view, it was not a matter of the appellant failing to "pick up" on them. Rather, it was a matter of the appellant making a conscious decision to ignore them, and to force penile/vaginal intercourse on AB. 99For all of these reasons I am not satisfied that any other sentence is warranted in law and should have been passed. 100I propose the following order: (1)The appeal is dismissed. 101HAMILL J: I have had the considerable benefit of reading the judgment in draft of his Honour Bellew J and I respectfully adopt his outline of the facts and analysis of the issues which arise on the appeal. For the most part I agree with his Honour's reasons and conclusions. However, I have come to a different conclusion as to the ultimate outcome of the appeal because I am of the opinion that a different, less severe, sentence is warranted and ought to have been imposed. 102For the reasons that Bellew J has given I agree that ground (1) should be upheld. 103I agree with Bellew J that the result of upholding ground 1 is that it is not strictly necessary to consider grounds to 2-4 and, for that reason, I also agree that it is not necessary for the Court to concern itself on this appeal with the controversy surrounding whether, on a referral under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), it is necessary for an appellant to obtain leave to argue grounds that go beyond the scope of the referral. Full arguments in relation to that controversy are being considered by the Court, differently constituted, in the case of R v Luizos. In the circumstance where anything that the Court would say in this appeal would be obiter it seems to me to be inappropriate to express any conclusions in relation to the matter. 104Bellew J indicated that he would consider the matters raised under grounds 2-4 "in the context of the exercise of the Court's function under s 6(3)." In undertaking that exercise, his Honour rejected those grounds. I am not inclined to come to conclusions as to whether the sentencing Judge fell into error in the manner alleged by grounds 2, 3 and 4. I do not think that it is necessary to do so. I would consider the factual questions underpinning those grounds in the context of re-sentencing and in considering the operation of s 6(3) Criminal Appeal Act. In other words, I would consider for myself whether I should come to a different factual conclusion as to the appellant's intention (ground 2), his remorse (ground 3) and the likelihood that he will re-offend (ground 4) taking into account the findings of Judge Payne SC, the evidence at first instance and the additional evidence tendered on "the usual basis" at the hearing of the appeal: cf Douar v The Queen [2005] NSWCCA 455 159 A Crim R 154 at [124]. 105However, even though we take a slightly different route, I agree with Bellew J in relation to the outcome with respect to the matters raised in grounds (2) and (3). In particular, I am not persuaded that the applicant should necessarily be sentenced on the basis that the intention established was no more than holding an unreasonable belief that the complainant was consenting in accordance with s 61HA(3)(c) of the Crimes Act 1900 (NSW). Similarly I am not persuaded that the evidence, even the evidence tendered on the appeal, establishes the mitigating factor of remorse as that concept is defined or restricted in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. 106In relation to the matter raised by ground (4), I agree with Bellew J that it was open to Payne DCJ to come to the conclusion as to the appellant's prospects of rehabilitation that she did. While it is arguable that her Honour did not take relevant material into account (that is, the opinion in the pre-sentence report) I am not persuaded that her Honour erred in that way. 107However, in considering the question of sentence afresh, based on the evidence before this Court, I am satisfied on the balance of the probabilities that the appellant has good prospects of rehabilitation and is unlikely to re-offend. The affidavit of the appellant sworn 8 May 2014 and the annexures to the affidavit of his solicitor show that he has made every effort to complete relevant rehabilitation programmes and has been a model prisoner. He has no previous convictions and the imposition of a substantial full time gaol sentence is likely to have had a salutary impact in terms of personal deterrence. Accordingly in assessing the appropriate sentence I take the view that the mitigating features in s 21A(3)(g) and (h) have been established. 108Sentencing has been described as an intuitive exercise. It is necessary to synthesise a diverse number of factors in order to settle upon a sentence which is considered by the sentencing judge or court to be just, proportionate, reasonable and appropriate. In many, if not most, cases the principles that guide the exercise of the sentencing discretion pull in different directions. Those principles find statutory form in s 3A of the Crimes (Sentencing Procedure) Act. However those principles have existed for centuries in the criminal law of sentencing. 109It has been said many times that there is no single correct sentence: see, for example, R v Markarian [(2005] HCA 25; 228 CLR 357. It is inevitable that judicial minds will differ as to the appropriate sentence in any given case. When this Court is considering questions of manifest excess or manifest inadequacy, considerable deference is paid to the sentence settled upon by the sentencing judge. This is in recognition of both the advantage that the primary judge may have had in considering the material at first instance and the function within the judicial hierarchy of the sentencing judge: see, for example, Mulato v R [2006] NSWCCA 282 per Simpson J at [46]. Sentencing involves the exercise of a wide discretion. 110However, this is not a case where the applicant asserts manifest excess. Rather it is a case where the applicant has established an error in the sentencing process such that this Court has held that the sentencing discretion miscarried. 111In my opinion the matters identified by Bellew J at [23]-[28] establish that that the sentencing judge approached the case on the basis of the law as it had been articulated in the case of R v Way (2004) 60 NSWLR 168. In Muldrock v The Queen [2011] HCA 391, 244 CLR 120, the High Court held (at [25]) that R v Way was wrongly decided and that "it was an error to characterise s 54B(2) as framed in mandatory terms". A sentencing judge is not required to commence by asking "whether there are reasons for not imposing the standard non parole period". The High Court held (at [26]) that the introduction of the standard non-parole period did not involve a departure from accepted sentencing principles whereby: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." See Markarian v The Queen (supra) per McHugh J at 378 [51]. 112The comments of the sentencing Judge set out by Bellew J at [23]-[28] establish that Judge Payne approached the standard non-parole period as framed in mandatory terms, made findings as to whether the case fell into the mid-range of objective seriousness and then started from the 7 year standard non-parole period before reducing the non-parole period to 5 years based on certain factors in the case - presumably, his prior good character and the finding of special circumstances. 113This means that rather than taking into account all of the relevant considerations going to an assessment of an appropriate and just sentence, the sentencing judge commenced with a consideration of the standard non-parole period of 7 years and then looked for reasons to impose either a lesser or greater sentence. In light of the decision in Muldrock v R, that is an error of a fundamental nature. In fairness to Judge Payne SC, she was applying the law as it was then understood to be. 114In considering the application of s 6(3) of the Criminal Appeal Act this Court must consider afresh the question of what is an appropriate sentence without particular reference to the sentence imposed at first instance. Having undertaken that task it is then necessary to consider whether the sentence considered to be appropriate is the same as, or more than, the sentence imposed by the sentencing judge. If it is, the appeal will be dismissed. If it is not, the appeal will be upheld and the sentence considered appropriate by this Court will be imposed. 115That is at least my understanding of the operation of s 6(3) once error in the sentencing process has been established. 116The applicant has provided a significant body of material concerning the sentences imposed in other cases in an attempt to make good the submission that a less severe sentence is warranted and ought to have been imposed. The proper approach to such material, as well as to statistics in other cases, was described by the High Court in the following passage from the case of Hili and Jones v The Queen [2010] HCA 45; 242 CLR 520 at [54]-[55] in which comments of Simpson J in DPP (Cth) v De La Rosa [2010] NSWCCA 194 were approved: "54. In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned. 55. As the plurality said in Wong: '[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.'" 117I accept the caution with which material such as past sentencing outcomes and statistics must be taken and I agree generally with the observations of Bellew J in [86]-[90] of his judgement. 118However, such caution should not be taken too far. When, as here, the objective criminality of an offence does not appear to be at the top of the range and where, as here, the Court is dealing with a first offender with good prospects of rehabilitation, it is at least surprising and worthy of closer examination that the sentence imposed falls statistically and on the available case law in the higher echelons of the overall spectrum of sentences imposed for similar offences. 119I have taken into account the objective gravity of the offence and agree with Bellew J that it is a very serious offence. I accept that general deterrence must play an important role in the exercise. 120However, it is far from the most serious offence of its kind and whilst the applicant's initial motivation was wicked (he hoped to trick the victim into having sex with him by pretending he was somebody he was not), the fact that he had no plan to sexually assault the complainant is a significant matter in an assessment of the objective gravity of the crime. 121The applicant was a first offender and, as I have concluded, he is unlikely to offend again. The evidence adduced on the appeal shows that he has made every effort towards rehabilitation in the course of the period that he has been in custody. The provision in s 21A(3)(i) made the availability of remorse and/or contrition as a mitigating feature more restrictive. I do not think that the evidence adduced on behalf of the applicant establishes the matter. 122I have considered the body of material that was relied on by the applicant as establishing some kind of pattern of sentencing. Each case will turn on its own facts and this case is an unusual one. Accordingly, the outcomes in other cases must be treated with circumspection. With the same degree of caution, I have considered the cases upon which the applicant places particular reliance: R v JRB [2006] NSWCCA 371, Salmond v R [2010] NSWCCA 141, Sabapathy v R [2008] NSWCCA 82 and McCartney v R [2009] NSWCCA 244. 123I have considered the purposes of sentencing in s. 3A Crimes (Sentencing Procedure) Act, the relevant aggravating and mitigating features that exist under s. 21A, the maximum penalty of 14 years and the standard non-parole period of 7 years. 124I have come to the conclusion that a sentence significantly less than that imposed at first instance is warranted and ought to have been imposed. I have reached this conclusion not as a result of the outcome in any particular case, or even the outcome in any group of cases, but rather on my own assessment of the objective gravity of this offence set against the relevant mitigating features and noting at all stages that the personal circumstances of the applicant cannot be given such weight as to allow the applicant to escape the appropriately stern punishment that his offending unquestionably deserves. 125I would impose a sentence of 6 years. I would make a finding of special circumstances based around the fact that the applicant is a person who has not previously been in custody and will require considerable supervision upon his release from gaol. This finding, pursuant to the provisions of s 44 of the Crimes (Sentencing Procedure) Act, allows me to reduce what would otherwise be a non-parole period of 4½ years to a non-parole period of 4 years. There would then be a balance of term of two years which is ample time to allow the applicant to readjust to life in the community. 126I am aware that this approach means that the non-parole period has already expired although the applicant's release to parole is a decision for the NSW Parole Authority. 127Accordingly, the orders that I would favour are as follows: (2)Appeal allowed (3)Quash the sentence imposed by Judge Payne SC and in lieu thereof the applicant be sentenced to a non-parole period of four years commencing on 11 October 2009 and expiring on 10 October 2013 with a balance of term of 2 years commencing on 11 October 2013 and expiring on 10 October 2015. (4)The applicant became eligible for consideration for release on parole on 11 October 2013 and I recommend that his release to parole be given urgent consideration.

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: 24 June 2014