Regina v Johnson

CATCHWORDS: Sentencing - aggravating factors - elements of crime - double counting. Backdating commencement of sentence when there has been pre-sentence custody. Criminal Appeal Act s 6(3) - when another sentence in substitution for that imposed is warranted in law.

Crimes Act 1900 (NSW) Crimes Act 1914 (Cwth) Crimes (Administration of Sentences) Act 1999 Crimes Legislation Amendment (Sentencing) 1999 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure ) Amendment (Standard Minimum Sentencing) Act 2000 Criminal Appeal Act 1912 Interpretation Act 1987 Crimes (Administration of Sentences) Regulation 2001

Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Johnson v The Queen [2004] HCA 15 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 Regina v Astill (No 2) (1994) 64 A Crim R 289 Regina v Cocking [1999] NSWCCA 311 Regina v Fernando (1992) 78 A Crim R 58 Regina v Fernando [2002] NSWCCA 28 Regina v Gordon (1994) 71 A Crim R 459 CASES CITED: Regina v Hayes [1984] 1 NSWLR 740 Regina v Holder & Johnston [1983] 3 NSWLR 245 Regina v Howard [2001] NSWCCA 309 Regina v McHugh (1985) 1 NSWLR 588 Regina v Nykolyn [2003] NSWCCA 229 Regina v Oastler, Court of Criminal Appeal, 7 October 1992 (unreported) Regina v Phillips & Simpson [2002] NSWCCA 167 Regina v Simpson (2001) 53 NSWLR 704 Regina v SLD (2003) 58 NSWLR 589 Regina v Thomas (1992) 65 A Crim R 269 The Queen v De Simoni (1981) 147 CLR 383 Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES: Regina v David Frederick Johnson

Mr P G Ingram - Crown COUNSEL: Mr A Cook - Appellant

Mr K Sobb (DPP) - Crown SOLICITORS: Mr P Dwyer (SRAC) - Appellant

LOWER COURT FILE NUMBER(S): 04/11/0138; 04/11/0142

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

HUNT AJA HULME J JOHNSON J

Friday 20 May 2005 REGINA v David Frederick JOHNSON Judgment 1 HUNT AJA: The applicant, David Frederick Johnson, appeared for sentence before Judge Norrish QC in the District Court on three charges: · One charge of aggravated breaking and entering a dwelling house in circumstances of aggravation (knowing at the time that there was a person present in the premises) and whilst there committing a serious indictable offence, the offence of stealing (a mobile telephone and its charger and a wallet); · one charge of having sexual intercourse without consent on the same occasion with the person present in the premises; and · a second charge of aggravated breaking and entering a dwelling house on a second occasion (knowing at the time that there was a person present in the premises) and whilst there committing a serious indictable offence, another offence of sexual intercourse without consent, again with the person present in the premises. 2 In relation to the first and second charges, the applicant in February 2001 had broken into the victim's unit, stolen a mobile telephone and its charger and a wallet, and had sexual intercourse with the victim whilst she was asleep in bed. In relation to the third charge, the applicant had in March 2002 broken into the second victim's apartment and had sexual intercourse with the second victim without her consent. She had been asleep but was awakened by his presence when he undressed and then had sexual intercourse with her. The applicant was in each case identified as the offender after a DNA sample obtained from him a considerable time later was compared with various forensic samples retrieved from each of the two victims. 3 The applicant pleaded guilty to the first and third charges in the Local Court and was granted bail. He pleaded guilty to the second charge some three months later, a week before the trial of that charge was to commence. The judge allowed a utilitarian discount of 25% for the pleas in the Local Court and one of 10% for the plea one week before trial. 4 The basic facts of the first and second charges were that the victim had gone to sleep in her unit, leaving the front door ajar to allow her boyfriend access when he arrived home. She awoke some time after midnight, having become aware of the presence of a man (who was the applicant) in her room, and feeling wet from the semen he had left on her legs. The mobile telephone and its charger belonging to her boyfriend and her wallet were missing. Various items in the unit had been disturbed. 5 The basic facts of the third charge were that the victim had gone to sleep in her unit leaving the front door ajar but believing that she had shut the security grill. She awoke, having become aware (though still half asleep) of the presence of a man in her room. Again, it was the applicant. He undressed, lay on top of her and had sexual intercourse with her. She attempted to push him away, but he was too strong, and she screamed at him to get out. He remained on her for about five minutes and dressed before leaving. She saw the presence of semen when she showered. Her wallet and keys were missing, but the applicant was not charged in relation to their theft. 6 The judge commented that in each instance there had been "a violation not only of the victim's physical person, but also a gross violation of [her] sense of security". In each case the victim underwent what the judge fairly described as the "torment" of not knowing for a lengthy time whether she had contracted any sexually transmitted disease which could be potentially fatal. The first victim had the added torment of not knowing precisely what the applicant had done to her whilst she was asleep. In each case, the victim suffered considerable dislocation of her private and professional life, a destruction of personal relationships, continuing anxiety and gross feelings of insecurity. The second victim suffered the destruction of her capacity to maintain her career. Each victim has been hindered in her ability to return to any semblance of a normal lifestyle such as she had previously enjoyed. Each victim has required continuing counselling. 7 The applicant was twenty-three years of age at the time of the first offence in 2001. He had committed a variety of offences since the age of sixteen, including robbery, theft and taking a motor vehicle without authority. He had received various suspended sentences with and without accompanying good behaviour bonds. He had breached one of those bonds before these offences were committed. He was on a bond to be of good behaviour at the time of the third offence, as well as on bail in relation to an offence of aggravated break and enter and an indecent assault on a female. That offence was committed on 24 November 2001, between the two occasions with which this appeal is concerned. He was given a custodial sentence for this offence by Judge Norrish before being charged with the present offences, and this fact is relevant to the second of the specific complaints made by the applicant concerning the sentences for the present offences, a matter to which I will return. The non-parole period relating to that sentence had expired prior to the trial, but the applicant had remained in custody in circumstances which are also relevant to that complaint. 8 The judge correctly observed that the offences against the second victim in the matters with which this appeal is concerned had to be considered in the context of the offences against the first victim and the aggravated break and enter and an indecent assault on a female which occurred between these two occasions. He expressed the views that the applicant has been a continuing danger to the community and particularly to single women in the community, and that his conduct on these two occasions cannot therefore be described as uncharacteristic. He held that each of the offences with which this appeal is concerned was not opportunistic in nature, but rather a planned and calculated crime committed clearly without regard to the rights of the victim. He said that the similarities of the offences involving attacks on single women alone in their "pregnable premises" were "very disturbing indeed". 9 The judge reviewed the applicant's background with some care. The applicant is an Aboriginal man who lived his early years in rural New South Wales. There was considerable tension and dislocation in the family, particularly between his parents who separated when he was fifteen or sixteen years of age. The judge referred favourably to the applicant's intelligence, and said that there was little in his upbringing which could explain his conduct which led to these offences. There had been only occasional employment since his departure from school, a significant gambling addiction and considerable participation with "sub-cultural elements" involved in drug use and other offending behaviour. 10 The applicant's explanation for the first and second offences was that he was "searching around for money and free sex". He needed to support his drug and gambling lifestyle. The judge commented on the circular process by which, having obtain money for the goods he stole, the applicant spent all that money on gambling and drugs and then claimed that he needed to steal more goods to feed his gambling and drug habits. In relation to the sexual offences, the applicant said that for a period before the first of the two occasions he had had sexual fantasies about having sexual intercourse with women, particularly white women. He had felt "pleased and relieved" after the first occasion, pleased because of the opportunity to have sex with a white woman but also guilty for having cheated on his partner. He had no feelings of guilt about the offence itself. The judge said that the material before him indicated that the applicant had rationalised that, as the victim had not objected, she may even have enjoyed what he did. She was, of course, asleep throughout the sexual assault. 11 The applicant's explanation for the third offence is that he had just lost his money at the TAB and so was looking for a victim and some more money. He said that he wanted "to get sex first, it was the more dominant [motive]". He expressed feelings of guilt for cheating on his partner but no real feelings of guilt for what he had done to his victim. 12 The judge accepted that there had been some recognition by the applicant of these misconceptions during the residential treatment programme at the gaol for sexual offenders, but he doubted whether there had been any true resolution of the applicant's delusional beliefs in relation to the responses of these two women whom he had sexually assaulted. He was still unable to face up to the full extent of the offence he had committed against the first victim, an offence which the judge described as one of the most serious offences of its type which could be committed. He had also initially sought to downplay the extent to which he had interfered with the two victims. The applicant had, however, confirmed the predatory aspects of his conduct and the deliberation involved in choosing his victims. The report which was before the judge records the applicant as "hanging around" hotels at night where he might find intoxicated women walking alone, or watching women leave taxis to enter houses by themselves, following them to their homes and observing whether they lived alone, then waiting for the time when they have gone to bed or might be asleep, when he would enter the home and sexually assault them. His admission of such other offences was not taken into account by the judge other than as confirmation of the planning in the two occasions with which he was concerned. 13 The judge held that there were concerns that the applicant would offend again in the future. Various factors led the judge to this conclusion - the facts that his offending behaviour gave him a sense of invincibility and that he derived excitement from his conduct, his involvement in cannabis use, his dysfunctional relationship with his wife, the character of his sexual activities since his mid-teens, his interest in pornography, his other fantasies in relation to sexual activity, and matters relating to his own sexual functioning. The applicant is regarded as being in a high risk category in relation to future offences relevant to other adult male sexual offenders, although the judge recognised the notorious difficulty in making such assessments, and said that he would deal with this assessment only on the basis that there was a possibility of re-offending. He preferred the assessment by the manager of the gaol sexual offenders programme (a psychologist) that there was an "overall moderate to high" risk of sexual recidivism at this time. Such a finding that there is a risk of re-offending is sufficient for sentencing purposes: Regina v SLD (2003) 58 NSWLR 589 at [32], [40]. 14 The judge said that he would take into account in the sentences imposed the objective seriousness of the offences and the need to deter both the applicant and others from committing like offences and also to denounce the applicant's conduct. He accepted that the need for public deterrence may properly be tempered by considerations of compassion: Regina v Fernando [2002] NSWCCA 28; but he correctly observed that the present case was not one in which the applicant deserved too much sympathy. 15 The judge paid close attention to the relevance of the applicant's previous record as laid down by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465. There is no suggestion that he erred in relation to the applicant's prior record. The judge also referred to the principles relating to the sentencing of Aboriginal offenders identified by Wood J in Regina v Fernando (1992) 78 A Crim R 58 at 62-63, but he found that there appeared to be no direct relationship between the applicant's social conditions at the time he committed these offences and the conduct which led to them. The judge nevertheless considered that the applicant's background and the circumstances of his upbringing must have had some influence on both the attitudes he possessed and his reasons for offending. Again, there is no suggestion that the judge erred in that finding. 16 The judge gave careful attention to the authorities relevant to making sentences either wholly or partially concurrent in order to achieve an appropriate total sentence for all of the offences. He referred, for example, to Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen [2004] HCA 15. He determined that the better way to approach the present case was to make the sentences partially concurrent. 17 The judge referred to several matters in aggravation and a few in mitigation. The matters taken into account in aggravation were the fact that "the offences themselves involved violence of a sexual character", the applicant's previous convictions, the substantial injury and emotional harm to the victims, the fact he was on conditional liberty at the time, the number of victims, the series of criminal acts, the vulnerability of the victims and the planning involved. The inclusion of the first of those matters constitutes the principal complaint by the applicant in this application for leave to appeal. The matters taken into account in mitigation were the pleas of guilty and the applicant's expression of remorse, although the judge was unable to say how genuine that remorse was. He found special circumstances warranting a longer balance of term than the prescribed proportion of one-third of the non-parole period: Crimes (Sentencing Procedure) Act 1999, s 44(2). The reasons the judge gave in accordance with that sub-section were the structure of the sentences he was imposing, and the applicant's need for professional assistance on release in adjusting to community living. Both matters were appropriate to be taken into account. 18 The sentences imposed were as follows: On the first count , for aggravated break and enter and stealing, carrying a maximum sentence of imprisonment for twenty years - a fixed term of imprisonment for three years, commencing on 10 February 2004. On the second count , for sexual intercourse without consent on the same occasion, carrying a maximum sentence of imprisonment for fourteen years - a fixed term of imprisonment for eight years and one month, also commencing on 10 February 2004. On the third count , for aggravated break and enter and sexual intercourse without consent, carrying a maximum sentence of imprisonment for twenty years - a total term of imprisonment for nine years with a non-parole period of four years, commencing on 10 February 2009 (that is, five years after the sentence on the second count commenced). The effective total sentence is one of imprisonment for fourteen years with a combined non-parole period of nine years. 19 The applicant argued before this Court that the sentences were "too long" and were attended by two specific errors. Although the written submissions asserted that the sentences were "manifestly excessive", the only argument put in the written submission in support of that assertion was that, accepting the findings made by the judge, a lesser sentence should have been imposed in order to rehabilitate the applicant and yet protect society with a shorter non-parole period. In the light of all the circumstances of the case (including the judge's acceptance that the applicant's risk of sexual recidivism was overall moderate to high), I see no basis on which the submission that the sentences were manifestly excessive should succeed. Significantly, there was no oral argument put forward to support the assertion made. 20 The applicant's principal complaint is, as I say, that the judge took into account as a matter in aggravation the fact that "the offences themselves involved violence of a sexual character". This is the only complaint argued in relation to the length of the sentence. It is necessary to note the context in which this statement was made: Specifically, the aggravating factors in this matter to my mind include the factor that the offences themselves involved violence of a sexual character, notwithstanding the fact that the prisoner did not inflict other physical violence, such as blows to his victims. He had no need to in any event as he overpowered both women. One of the women of course was taken advantage of whilst she was asleep. 21 Section 21A(2) of the Crimes (Sentencing Procedure) Act provides that none of the aggravating factors it specifies may be taken into account in aggravation "if it is an element of the offence". The actual or threatened use of violence is one of those aggravating factors specified and, although violence of a sexual character is not specifically mentioned in the subsection, s 21A(1) provides that any other matter which is permitted to be taken into account under any statute or rule of law may still be taken into account. Section 21A was introduced in its present form by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2000, which commenced on 1 February 2003, but the new s 21A itself applies to any determination of a sentence after that date, whenever the offence was committed, unless the offender had been convicted before that date: Crimes (Sentencing Procedure) Act, Schedule 2, clause 45(2). In the present case, the offences took place in 2001 and 2002, but the applicant was not convicted until July 2004. Section 21A therefore applied. 22 In any event, the provision in s 21A(2) does no more than reflect the common law. A matter is taken into account by way of aggravation of sentence when, by reason of that matter, the judge imposes a sentence more severe than he or she would otherwise have imposed: The Queen v De Simoni (1981) 147 CLR 383 at 388. In my view, it is a fundamental principle of sentencing which needs no statute to support its existence that a matter may not be taken into account in aggravation of sentence if it is already an element of the crime, for that would necessarily amount to double counting of the same matter. The importance of the inclusion of that principle in s 21A(2) is to remind judges who inevitably use the provisions of the section as a "check list" applicable to all offences to ensure that any particular matter listed as an aggravating factor is not already an element of the offence. 23 When defining the offence of sexual intercourse without consent, s 61I of the Crimes Act 1900 makes no reference to violence, and its title "Sexual Assault" does not go beyond the common assault which is inherent in the "sexual connection" to which the definition of "sexual intercourse" in s 61H refers. It does not include any suggestion of either violence or (as violence is usually defined) the exercise of physical force. Many sexual assaults do involve violence, and that violence is appropriately taken into account by way of aggravation in a sexual assault charge under s 61I - provided that it does not involve the infliction of actual bodily harm, when the offender becomes exposed to a greater maximum sentence, one of imprisonment for twenty years (s 61J "Aggravated Sexual Assault"), in lieu of imprisonment for fourteen years (s 61I "Sexual Assault"). The principle laid down in The Queen v De Simoni (at 388-392), that a matter may be taken into account in aggravation of sentence only where it does not render the accused liable to a greater punishment, would otherwise be infringed. 24 In the present case, the judge accepted (in the passage I have quoted) that there was no physical violence beyond the violence of a sexual character involved in the offences themselves. He did find that the applicant had "overpowered both women". There was no overpowering in any sense of the first victim, who was asleep. The finding that the second victim was unable to push the applicant away because he was "too strong" would be an insecure basis for a finding that there was violence in the sense of the exercise of physical force. To interpret this finding in that way would be inconsistent with the judge's finding that there was no physical force used beyond what was involved in the offences themselves. It therefore appears that, by his finding that the offences themselves involved violence of a sexual character, the judge must have been referring only to what is inherent in the "sexual connection" involved in sexual intercourse. 25 The judge had earlier commented that the applicant's conduct in each instance had constituted "a violation … of the victim's physical person", which is how the common law crime of rape was often defined. It may be that the judge was intending only to repeat in the quoted passage that description of the applicant's conduct, but the problem lies in his identification of the violence of a sexual character as a matter of aggravation of sentence rather than as, perhaps, an explanation that the law treats the offence of sexual intercourse without consent as a very serious one because of the violation of the woman's person involved. The offence of sexual assault defined in s 61I has already factored in the sexual character of the assault as an element of the offence, making that character very relevant to the punishment of the offender for the crime - without reference to aggravation - by imposing a maximum sentence for sexual assault of imprisonment for fourteen years, compared with the maximum sentence of imprisonment for two years for common assault (s 61). 26 The judge's inclusion of the violence of a sexual character in the aggravating factors he took into account was therefore erroneous. Did that error have any effect on the sentence which he imposed for the two offences involving sexual intercourse without consent? The judge stated that he noted the terms of s 21A(5) in relation to both the aggravating and mitigating factors he took into account. That subsection states: The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

The note which the judge took of that subsection does not, however, suggest that he did not increase the sentences he imposed by reason of the violence of a sexual character which he identified. It was the first of a number of aggravating factors to which he referred, and thus appears to have been at the forefront of his mind in relation to aggravation. If the judge was not intending to increase the sentence by reference to this factor, expressed as it was in strong terms, I would have expected him to say so expressly. I am satisfied that he did increase the sentence because of what he erroneously saw to be an aggravating factor. 27 It was submitted by the applicant that, error having been established, and as the judge did not himself indicate how much he had added to the sentences as a result of the sexual character of the violence, this Court should assess for itself what was added on and deduct that amount from the sentences which were imposed. Sentencing judges should not be encouraged to identify the amounts by which they add for each individual aggravating factor or which they deduct for each individual mitigating factor. But, in any event, the course suggested is not within the terms of s 6(3) of the Criminal Appeal Act 1912: On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal. 28 In Regina v Simpson (2001) 53 NSWLR 704 at [74], decided by a bench of five judges, Spigelman CJ (with whose reasons three of the other judges agreed and the fourth judge expressed reasons to the same effect) said: The applicant's submissions to the Court proceeded on the assumption that if he could identify some kind of error - either a failure to give proper weight to the plea, or a failure to state reasons with respect to the issue of special circumstances or a failure to make a finding of special circumstances that ought to have been made - then this Court would proceed to allow the appeal and re-sentence the applicant. This assumption is not in accordance with the jurisdiction which this Court exercises.

Then, after quoting s 6(3) and referring to Dinsdale v The Queen (2000) 202 CLR 321, which had emphasised the existence of a similar provision in the equivalent statute in Western Australia, the Chief Justice continued: Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process". That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that "some other sentence … is warranted in law and should have been passed". Unless such an opinion is formed, the essential pre-condition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefor" is not satisfied. 29 When reference was made to Simpson during the argument in the present appeal, there was considerable discussion as to when another sentence in substitution for that which had been imposed was "warranted in law". The applicant argued that, according to the Simpson case, this Court would never intervene unless it formed the view that the sentence imposed was "manifestly excessive". That is not the correct approach. 30 Regina v Simpson was not the first time that this Court had reminded itself of the need to comply with the terms of s 6(3). In Regina v Wayne Ross Oastler, Court of Criminal Appeal, 7 October 1992 (unreported), the leading judgment was delivered by Lee AJ. After holding that the sentencing judge had made a number of errors in the construction of the sentencing provisions in the (Cwth) Crimes Act 1914, Lee AJ said (at p 9): However, that does not mean necessarily that the appeal should be upheld on the ground that the sentence is excessive. The question which remains for the Court under s 6(3) of the Criminal Appeal Act 1912 is whether the sentence in fact left by the sentencing judge is excessive or, to use the words of the section, whether another sentence is "warranted in law". In my view, having regard to the seriousness of the crime with which the applicant was charged, his criminal history involving a heavy sentence and only a comparatively few short years ago - a factor which inhibits leniency - and notwithstanding the subjective features including the extensive and significant assistance which he has given to the authorities, the sentence cannot be regarded as excessive.

Gleeson CJ added: I agree with the orders proposed by Lee AJ, and in particular I agree that, although the applicant has succeeded in demonstrating that some of the steps involved in the process of reasoning of the learned sentencing judge involved some misapprehension on his Honour's part as to the effect of the relevant legislation, nevertheless the sentence ultimately imposed was not excessive.

Clarke JA agreed with the comments made by both judges. 31 In Regina v Astill (No 2) (1994) 64 A Crim R 289 at 304, Lee AJ said: When an appeal is brought to the court under s.5(1) it may well be that the court will consider the sentence passed to be "warranted in law'" even though the court may not be in agreement with the weight assigned by the sentencing judge to particular features or his selection of the substantial matters which guide him to his conclusions. In such a case the appeal fails. Even when the court concludes that the judge has made a mistake of law the court may still hold that the sentence is not excessive and should stand.

Lee AJ then referred to what he had said in Oastler . The other members of the Court did not refer to s 6(3). 32 In Regina v Cocking [1999] NSWCCA 311, Sully J quoted with approval (at [22] - [23]) what had been said in relation to s 6(3) in Oastler and Astill (No 2). Spigelman CJ stated (at [26]) that he wished to associate himself with the remarks by Sully J "on the proper construction of s 6(3) of the Criminal Appeal Act 1912". 33 What all of these cases emphasise is that the mere existence of error in the sentence imposed does not permit this Court to substitute another sentence for it unless such substituted sentence is warranted in law. Section 5(1)(c) of the Criminal Appeal Act permits a person convicted to appeal with leave against the sentence imposed. Section 6(3) permits the Court to impose another sentence in substitution for that sentence only if it is of opinion that such other sentence is warranted in law and should have been imposed. Neither provision requires this Court to identify any particular error before exercising that power. Indeed, as House v The King (1936) 55 CLR 499 at 504-505 says, even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the sentencing discretion. 34 In such a situation where the precise nature of the error is not apparent, the Court will inevitably have concluded that the sentence imposed was outside the appropriate range for the circumstances of the particular case, and it must determine for itself what sentence is warranted in law in relation to those circumstances. In cases where the error is apparent, the Court must first consider whether the sentence imposed is outside the appropriate range for the circumstances of the particular case unaffected by that error and, if it is, determine for itself what sentence is warranted in law in substitution for that sentence. 35 In the present case, the judge's identification of the offences themselves as involving violence of a sexual character must be disregarded as amounting to an aggravating factor. In giving the sentences imposed the consideration I have described, I believe there is one matter in relation to the second victim which does need explanation. 36 I accept the approach of the sentencing judge that the circumstances of the sexual assault on the first victim deserved greater punishment than did the circumstances of the sexual assault on the second victim, when taken completely in isolation. I have already referred to a number of statements by the judge which indicate that this was his approach. The sentence of nine years imposed on the third count (dealing with the second victim) therefore gives a misleading appearance of being high by comparison with the sentence of eight years and one month imposed on the second count (dealing with the first victim). It is, however, important to emphasise that the higher sentence was not just for a sexual assault on the second victim, but for a sexual assault committed on her in the course of an aggravated breaking and entering. The maximum sentence for this offence against the second victim is twenty years (Crimes Act, s 112(2)), rather than fourteen years for the sexual assault on the first victim (s 61I). The message from the Legislature conveyed by that increase is that a sexual assault is rendered all the more serious when it is committed during the course of an aggravated breaking and entering the victim's home, knowing that there is a person present. That message must be taken into consideration. (For some reason, which is not readily apparent, the Crown formulated the charges against the applicant for the sexual assault on the first victim in an entirely different way, but the applicant is entitled to the benefit which this different formulation gave him in relation to the sexual assault of the first victim). 37 Since the hearing of the appeal, the Crown has supplied the statistics available from the Judicial Commission in relation to offences under s 112(2) of the Crimes Act, the aggravated break and enter a dwelling house in circumstances of aggravation and commit any serious indictable offence therein which is the subject of the first and third counts. Section 112(2) covers an extremely wide field - both as to the terms "circumstances of aggravation" and, more particularly, "any serious indictable offence". Prior to the abolition of the distinction between felonies and misdemeanours by s 580E of the Crimes Act, inserted by the Crimes Legislation Amendment (Sentencing) Act 1999, s 112(2) referred to felony rather than serious indictable offence. The phrase "serious indictable offence" is defined in the Interpretation Act 1987 by s 21 (Meaning of commonly used words and expressions) as an indictable offence that is punishable by imprisonment for life or for a term of five years or more. 38 Just as there were many and varied felonies, so also are there many and varied serious indictable offences, some making the offender liable to very heavy punishment and others to very much less punishment. The serious indictable offence charged in the first count was based on s 112(2), the serious indictable offence being stealing. In the third count, the serious offence is sexual intercourse without consent. That is a good illustration of the width of s 112(2), as demonstrated by the different total sentences imposed in the present case - three years for the first count and nine years for the third count. The sentencing statistics supplied do show that 73% of offenders were given custodial sentences, that the terms of the sentences imposed varied between one and twenty years, and that, of the three offenders between the ages of twenty-six and thirty years who pleaded guilty to multiple counts (which includes the present case, even though the serious indictable offences were very different), one received a three year term, one a four year term and one a five year term. For all that is known, the serious indictable offence in each of those three cases may have been merely stealing. I therefore obtain little assistance from the statistics. 39 Considering all of the relevant material in the case for myself in the way I have outlined, I am not satisfied that the sentences imposed were outside the appropriate range for the circumstances of this case. Adequate allowance was made by way of partial concurrency of the individual sentences to ensure that the effective total length of those sentences did not exceed the overall culpability of the applicant: Regina v Holder & Johnston [1983] 3 NSWLR 245 at 261; Regina v Hayes [1984] 1 NSWLR 740 at 742; Mill v The Queen (1988) 166 CLR 59 at 62-63; Regina v Thomas (1992) 65 A Crim R 269 at 275; Regina v Gordon (1994) 71 A Crim R 459 at 466; Postiglione v The Queen (1997) 189 CLR 295 at 308-309, 340. I therefore would not quash the sentences and impose other sentences in substitution for them. 40 The second specific complaint made by the applicant in relation to the sentences imposed is that the judge erred in determining that the sentences for the first and second counts (those relating to the first victim) were to commence on 10 February 2004. The judge said that he had selected that date because it was the date on which the applicant pleaded guilty in the Local Court to the first and third counts. At the time the applicant was first charged with these offences, he was in custody serving the non-parole period set by the same judge for the aggravated break and enter and indecent assault on a female committed in November 2001. As the term of the sentence imposed for that offence was less than three years (it was imprisonment for two years and five months), the judge had made an order directing that the applicant be released after the expiration of his non-parole period on 20 November 2003: Crimes (Sentencing Procedure) Act, s 50. Such a release is automatic unless an order is made revoking the parole order. 41 Section 47(3) of the Crimes (Sentencing Procedure) Act requires a sentencing judge to take into account any time during which the offender has already been held in custody for the offence for which he is being sentenced. Where the custody has been continuous, it is usual to backdate the commencement of the sentence to the commencement of that custody. Where the custody has not been continuous, it is preferable for the judge to backdate the commencement of the sentence to a date which takes up the discrete period or periods actually served in custody for the offence for which he is being sentenced. In that second situation, it is preferable to backdate rather than reduce the sentence imposed for two reasons: it promotes the accuracy of the record, preventing an otherwise unknown factor affecting the length of the sentence from being hidden, and it demonstrably reflects the fact that the pre-sentence custody has been taken into account: Regina v McHugh (1985) 1 NSWLR 588 at 590-591; Regina v Howard [2001] NSWCCA 309 at [25]; Regina v Phillips & Simpson [2002] NSWCCA 167 at [58] - [59]; Regina v Nykolyn [2003] NSWCCA 229 at [28] - [31]. In the present case, the applicant had remained in custody from 20 November 2003. 42 It is submitted by the applicant that the judge did not backdate the sentences to the expiration of the previous non-parole period because he intended to increase the sentence which he had previously imposed on the applicant because of what he had learnt in these proceedings. In his remarks on sentence in the present case, the judge did express concern in relation to a finding he had made in favour of the applicant in that case which had been shown by the evidence in this case to be wrong. He had, he said, given the applicant the benefit of the doubt in that case as to whether his purpose in breaking and entering that victim's premises was to sexually assault her, and had found that the sexual assault was opportunistic. That finding, he said, "clearly must be called into question" by the similar offences in relation to the first victim in this case some nine months earlier and in relation to the second victim some time later than the offence in the previous case, and by the evidence given in these proceedings as to the applicant's "attitudes towards women and other matters since that period of time". 43 When imposing the sentences, the judge stated that he did not think it appropriate to commence the current sentences from the expiration of the earlier non-parole period "for the reasons discussed". The only discussion in the remarks on sentence in relation to the previous sentence is as I have outlined in the previous paragraph. The judge had no power to extend the previous non-parole period which he had imposed and, if that was his intention (as it appears it may have been), that was not an appropriate basis for declining to backdate the commencement of these sentences to the expiration of the previous non-parole period. 44 The Crown's first response to this complaint was that the judge was entitled to decline to backdate the sentences to the expiration of the previous non-parole period because of the pre-planned sexual offending the evidence in the present case had revealed. But that factor was taken into account in determining the sentences in this case, and it formed no justification for extending those sentences so determined by not complying with the provisions of s 47(3). 45 The Crown's second response was that, if the sentences had been backdated to the expiration of the previous non-parole period, it would have rendered nugatory the revocation of the applicant's parole in relation to the previous sentence. Pursuant to s 130 of the Crimes (Administration of Sentences) Act 1999, the Parole Board has power to revoke any parole order prior to a prisoner's release "in such circumstances as may be prescribed by the regulations". Regulation 219 of the Crimes (Administration of Sentences) Regulation 2001 prescribes the relevant circumstances in which the Parole Board may revoke a parole order as a decision by the Board, made before the offender's release, that he requests that the parole order be revoked or he is "unable to adapt to normal lawful community life". The latter was the basis for the revocation in this case. 46 The Crown has belatedly produced the report on which the revocation was based. It appears that the applicant wished to continue attending a CUBIT treatment programme he was undertaking which he had not yet completed and would not complete until after the expiration of his non-parole period. He had by that stage been refused bail on the charges relevant to the present appeal, for which he was expecting a further custodial sentence. According to the report, he had not been guilty of any misconduct in custody, he had been quiet and polite in his conduct and he had made some significant progress in his attitudes. A signed consent to decline his parole is attached to the report. 47 The parole order could not have been based on a request by the applicant to revoke his parole order within reg 219, as he had done no more than consent to declining parole. The revocation clearly could have related only to the charges against the applicant for the offences (the subject of this appeal) which took place before the commencement of that non-parole period. The more usual reason for a finding pursuant to reg 219 that a prisoner is "unable to adapt to normal community life" would appear to relate to conduct during the non-parole period, not to conduct before entering custody to serve that non-parole period which, if known to the sentencing judge, would already have been taken into account in setting the length of the non-parole period. It would not usually be appropriate for the Parole Board to act in a way which extends the non-parole period in order to take into account the matters of which the sentencing judge was unaware, unless there is a secure foundation for anticipating that the prisoner would act in the same way upon release from custody. It has not been suggested by the Crown that this was the justification for the revocation. 48 In my opinion, the judge's discretion as to when the sentences should commence miscarried, for the reasons stated in pars 42-43 supra, and it therefore becomes the duty of this Court to exercise that discretion for itself. As the applicant's release on parole would otherwise have been automatic some six days after it was revoked (see par 40 supra), I would treat the time spent by the applicant in custody since the expiration of his non-parole period as having been effectively for the present offences for which he was being sentenced. The applicant's consent to declining parole was understandable from his point of view, but it would be wholly wrong to exercise the discretion in a way which punished him by treating his continuing custody as having been effectively for other than the present offences. I would therefore backdate the sentences on the first and second counts to commence on 20 November 2003, and correct the commencement of the sentence on the third count accordingly.

49 I propose that the following orders be made: 1. Leave is granted to appeal against the sentences imposed on 9 July 2004. 2. The appeal is upheld, and the sentences are varied in relation to their commencing dates, so that they are now in the following terms: · On the first count, for aggravated break and enter and stealing - a fixed term of imprisonment for three years, commencing on 20 November 2003 and expiring on 19 November 2006. · On the second count, for sexual intercourse without consent - a fixed term of imprisonment for eight years and one month, commencing on 20 November 2003 and expiring on 19 December 2011. · On the third count, for aggravated break and enter and sexual intercourse without consent - a total term of imprisonment for nine years, commencing on 20 November 2008 and expiring on 19 November 2017, with a non-parole period of four years, commencing on 20 November 2008 and expiring on 19 November 2012, on which date the applicant will be eligible for release on parole. The effective total sentence remains unchanged as one of imprisonment for fourteen years with a combined non-parole period of nine years. 50 HULME J: Save and except for the starting dates of the sentences, I agree with the orders proposed by Hunt AJA and with paragraphs [1] to [45] of his Honour's Reasons. However, in the circumstances of this case I favour the date selected by Judge Norrish QC, viz 10 February 2004 as the date upon which the sentences imposed on counts 1 and 2 should commence (with consequent adjustment of the commencing date for the sentence on the third count) rather than 20 November 2003 as Hunt AJA proposes. 51 The Applicant had been sentenced in August 2002 for an offence of aggravated break and enter committed on 24 November 2001. The sentence imposed was imprisonment for a period of 2 years and 5 months including a non-parole period of 15 months both periods commencing on 21 August 2002. The non-parole period thus expired on 20 November 2003 when, absent an adverse determination of the Parole Board, the Applicant would have been entitled to be released on parole for some 14 months. However, having received an adverse determination he remained in custody pursuant to the earlier sentence and as part of the punishment for the offence for which it was imposed. 52 I accept that it is clearly to be inferred that the charges the subject of the present application were, at least in large part, the inspiration for the revocation of the Applicant's parole but that does not change the fact that the time spent in custody in consequence of the revocation of parole was part of the sentence thought proper for the November 2001 offence. He remained in custody because he was regarded by the authority charged with considering the matter as someone not fit or appropriate for the leniency and benefits of parole. 53 It is to be acknowledged that the effect of the Parole Board's determination was to make the sentence for the November 2001 harsher than it would otherwise have been and no doubt as contemplated by Judge Norrish when he originally imposed it. However, that such might occur was inherent in the sentence imposed and, particularly in circumstances where it is clear from the remarks of his Honour in determining the sentences under appeal that his Honour would not seem to have been earlier in full possession of the relevant facts, does not persuade me that this Court should confine the effective custodial portion of the earlier sentence to the non-parole period fixed when that sentence was imposed. 54 It may be accepted that such confinement almost invariably occurs whenever an offender is sentenced at the one time for more than one offence although it must also be recognised that there is no practical way in which it could be otherwise. Here there is an effective way of reducing the diminution of the earlier sentence. 55 Having regard to the terms of s47 of the Crimes (Sentencing Procedure) Act and the practicalities of the situation, the possible commencing dates available to Judge Norrish for the first of the sentences under appeal ranged from 20 November 2003 when the Applicant would, but for the determination of the Parole Board have been eligible for parole, to 9 July 2004 when his Honour sentenced the Applicant. His Honour chose 10 February 2004, thus making 2 of the current sentences concurrent to the extent of approximately 11 months with that earlier imposed for the November 2001 offence. As Hunt AJA has demonstrated, his Honour erred in his reasons for so doing and it falls to this Court to determine the matter for itself. Considerations of totality have to be borne in mind but so does the fact that the selection of any date within the parole period of that earlier sentence will have the effect, pro tanto, of diminishing the effective punishment imposed by that sentence. I see no reason to give the Applicant the benefit of greater concurrency than did Judge Norrish and it is for that reason I favour fixing the commencement of the sentences as I have indicated in the first paragraph of these reasons. 56 For completeness I should add that I do not regard the Applicant's consent to the revocation of his parole, or the other further information belatedly received and to which Hunt AJA has referred as arguing for any postponement of the commencing dates of the Applicant's sentences. 57 JOHNSON J: I agree with Hunt AJA. 58 HUNT AJA: The orders of the Court are, by majority, as I have proposed.

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