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.