Regina v Reyes

Court of Criminal Appeal (NSW)|2005-04-12|Before: Wood CJ, Grove J, Hoeben J

JUDGMENT OF: Wood CJ at CL at 1; Grove J at 2; Hoeben J at 98

DECISION: Crown appeal allowed.; Respondent resentenced.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - MULTIPLE SEXUAL AND ASSOCIATED OFFENCES ON TWO VICTIMS - HIGH LEVEL OF CRIMINALITY DISCLOSED - FAILURE TO ADVERT TO PRESCRIBED STANDARD NON PAROLE PERIOD - REFUSAL OF OFFENDER TO ACKNOWLEDGE GUILT WITH POSSIBLE EFFECT ON GRANT OF PAROLE NOT A BASIS FOR MITIGATION OF ASSESSED SENTENCE - CROWN APPEAL - INADEQUACY OF SENTENCES DEMONSTRATED - RESPONDENT RESENTENCED

Crimes Act 1900 s5D Criminal Appeal Act 1912 LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999

Dinsdale v The Queen 2000 202 CLR 321 Ibbs v The Queen 1987 163 CLR 447 Pearce v The Queen 1998 194 CLR 610 R v Allpass 1993 72 A Crim R 561 CASES CITED: R v Bulut [2004] NSWCCA 325 R v Gabriel, unrep, NSWCCA 18 November 1994 R v Holder and Johnston 1983 3 NSWLR 245 R v Pellew [2004] NSWCCA 434 R v Way 2004 60 NSWLR 168

P. Barrett (Crown/Applicant) COUNSEL: A. Haesler SC (Respondent)

S. Kavanagh (DPP) SOLICITORS: S.E. O'Connor (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2005/217

WOOD CJ at CL GROVE J HOEBEN J

Thursday 16 June 2005 REGINA v MARK ANTHONY REYES Judgment

1 WOOD CJ at CL: I have read in draft form the judgment of Grove J. I agree with the orders proposed, and with the reasons of his Honour. 2 GROVE J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act seeking the increase in sentences imposed at Campbelltown District Court by Maguire DCJ following trial of the respondent before his Honour and a jury. The relevant indictment contained thirty one counts, to two of which the respondent pleaded guilty and on the remaining counts which were the subject of trial he was convicted on twenty counts; verdicts of not guilty were found by the jury on two counts; verdicts of not guilty found by direction of the presiding judge on a further five counts, and no verdict was taken on the remaining two counts upon which the jury were unable to agree. 3 The overall effect of the sentences imposed was a total term of 13 years imprisonment with 10 years to be served before the respondent will be eligible for consideration for parole. 4 There were convictions on seven different species of offence and there were two victims involved. In categories the offences were, using short descriptions, kidnapping contrary to Crimes Act 1900 s 86(1)(b) (one count numbered 1, prescribed maximum penalty 14 years imprisonment); indecent assault contrary to s 61L (three counts numbered 2, 4 and 28, prescribed maximum penalty 5 years imprisonment); administering a stupefying drug contrary to s 38 (four counts numbered 3, 10, 17 and 18, prescribed maximum penalty 25 years imprisonment); aggravated sexual assault contrary to s 61J(1)(b) (ten counts numbered 6, 13, 14, 15, 16, 19, 20, 23, 29 and 30, prescribed maximum penalty 20 years imprisonment); obtain benefit by deception contrary to s 178BA (two counts numbered 11 and 24, prescribed maximum penalty 5 years imprisonment); steal from person contrary to s 94 (one count numbered 25, prescribed maximum penalty 14 years imprisonment) and steal from dwelling contrary to s 148 (one count numbered 31, prescribed maximum penalty 7 years imprisonment). 5 The pleas of guilty entered by the respondent were to one count of obtaining benefit by deception (count 24) and the count of stealing from a dwelling (count 31). 6 A summary prepared by the Crown Prosecutor was expressly accepted by senior counsel for the respondent and the following recitation of facts and circumstances has been extracted from it. 7 Count 1: at about 8 pm on 29 April 2003 an eighteen year old girl (JA) was walking in Macquarie Street, Liverpool, talking to a friend on her mobile phone when the respondent commenced to follow her. She noticed this and hurried but he caught up with her and produced a knife, saying, "Don't scream or I'll stab you". As the events next to be described took place, JA was detained by the respondent for about twenty hours. It can be noted that after arrest, the knife described by JA was found in the respondent's car. 8 Count 25: JA said to her friend who was still connected to the telephone, "He's got a knife", and the respondent then took her telephone. 9 Thereafter the respondent took JA by the arm and directed her into his car which he drove to a house in Eagle Vale. During the journey he said that he had previously stabbed a girl who had not listened to him. At the house he took JA to his bedroom, commenced to display a pornographic film on a television set and forced JA to remove her own clothing and put on a see-through bodysuit and a pair of gold "hot pants". 10 Count 2: The respondent then kissed JA on the mouth and all over her body following which he cut the clothing from her. He then put handcuffs on her restraining her hands behind her back. He then put a blindfold on her and made her lie face down on the bed. While she was in this position he stroked her buttocks with a knife and said, "If you don't do everything I tell you, then I'm going to stab you". 11 Counts 3 and 4: The respondent then proceeded to shave JA's pubic hair and afterwards injected her with amphetamine. 12 Count 6: The respondent then inserted a large dildo in her vagina. This item was later found in the respondent's possession. 13 Count 10: Following the insertion of a dildo, the respondent again injected JA with amphetamine. 14 After restoration of some clothing, the respondent placed a knife in his bag and took JA to a nearby ATM. 15 Count 11: At the ATM he said, "Give me your PIN or I'll stab you". JA complied and the respondent was then able to withdraw $300 from her account. 16 He then took JA to an abandoned house in Liverpool which was described as a place frequented by drug users. 17 Counts 13, 14, 15 and 16: At this abandoned house the respondent applied his tongue to JA's vagina, put his penis into her mouth and told her he was not going to let her go until he ejaculated, he put his penis into her vagina and afterwards placed his fingers there. 18 Count 17: Before taking her from the house the respondent injected JA with amphetamine for the third time. 19 They travelled from the house and went to a truck stop where the respondent took JA into the male showers where he forced her to join him in showering, and whilst this happened he used his hands to rub all over her body. He then went to Liverpool Hospital where he obtained some needles and then went to a shop where he bought a female school uniform. He then drove JA to a block of flats at a nearby construction site and made JA put on this school uniform. 20 Counts 19 and 20: At this site the respondent successively inserted his fingers and his penis into her vagina. 21 Count 18: Whilst there he injected JA with amphetamine for a fourth time. 22 After departure from this site they went to some bushland and the respondent ordered JA to remove her pants. She did so, but complained about sitting on wet grass, as a result of which he supplied a piece of cardboard for her to sit on. 23 Count 23: He inserted his fingers into her vagina whilst she, at his insistence, applied her hand to his penis. This activity stopped when mosquitoes began to bother the respondent. 24 Thereafter the respondent drove JA to another ATM. 25 Count 24: At this ATM the respondent withdrew a further $200 from JA's account. 26 Thereafter the respondent, having written some details of the victim's address on a piece of paper (later found in his possession), drove her near to the home of a friend and released her. As previously indicated she was forcibly detained for about twenty hours. 27 On the following Tuesday evening, the respondent approached a sixteen year old girl (BA) in the vicinity of Liverpool Railway Station. He told her that he was an undercover police officer and that he would handcuff her if she did not accompany him. She did so and he drove her to a flat in Liverpool where he both handcuffed and blindfolded her with a tie, and whilst she was in this state he drew a knife across her neck. After this he took her back to a car and handcuffed her to a seat telling her that if she screamed he would slit her throat. They drove around for some time and then he drove her to her own flat. 28 Count 28: At the flat the respondent tied BA to a table with bandages and whilst she was there he shaved her pubic hair. This activity caused two lacerations which were later confirmed by medical examination. 29 Counts 29 and 30: Whilst BA was disabled the respondent licked her vagina, after which he inserted his fingers into it. 30 Count 31: Thereafter the respondent exclaimed, "I can't do this", and he left the flat but took with him a number of items of her property including a television, video recorder, mobile phone and her purse. 31 After his departure BA was able to contact her mother and police. In a drawer in the kitchen police discovered a knife which BA said did not belong to her. The respondent later admitted that this knife belonged to him. 32 Each sentence and specified non parole period for the offences in which JA was the victim was directed to commence on 10 May 2003, the date on which the respondent was taken into custody. They were as follows: (a) Count 1 (kidnap), imprisonment for 3 years 6 months with a non parole period of 2 years 8 months. (b) Counts 2 and 4 (indecent assault), and counts 11 and 24 (obtain benefit by deception), imprisonment for 3 years with a non parole period of 2 years 3 months. As noted the respondent had pleaded guilty to count 24. (c) Count 3, 10, 17 and 18 (administer stupefying drug) and counts 6, 13, 14, 15, 16, 19, 20 and 23 (aggravated sexual assault), imprisonment for 12 years with a non parole period of 9 years. (d) Count 25 (stealing from person), imprisonment for 6 years with a non parole period of 4 years 6 months. 33 Each sentence and specified non parole period for the offences in which BA was the victim was directed to commence on 10 May 2004. They were as follows: (a) Count 28 (indecent assault) and count 31 (steal from dwelling), imprisonment for 3 years with a non parole period of 2 years 3 months. As noted the respondent had pleaded guilty to count 31. (b) Counts 29 and 30 (aggravated sexual assault), imprisonment for 12 years with a non parole period of 9 years. 34 It is convenient at this point to summarize some subjective features relating to the respondent. Again, the statement of these features in a Crown submission was accepted on behalf of the respondent. "The respondent was 40 years old at the time of the offences and 41 years old at the time of sentencing. He was born in Chile and migrated to Australia with his family when he was aged 7. He had difficulty adjusting as he could not speak English, and was often assaulted and ridiculed at school. This led to a lack of self-confidence. The respondent commenced using marijuana and alcohol at the age of 13. He began to use amphetamines when he was 16 and soon became addicted. He also occasionally used cocaine and heroin. Since 1987 he has attempted rehabilitation treatments with varying degrees of success. In late 2002 to early 2003 he was undergoing treatment with the Salvation Army Ridge (sic - Bridge) Program, where he progressed well but left after six months, against advice. The respondent's use of amphetamines increased after the breakdown of his second relationship, and he reported that in the two months prior to the offences he was using it on a daily basis. Gambling also became a problem for him during periods of heavy drug usage. He was in a relationship with his partner for eleven years, which ended in 1995, due to financial hardships and the respondent's drug addiction problems. He has three children, who were aged 15, 13 and 10 at the time of sentencing. A second 6-year relationship ended in 2001. He has the support of his parents and siblings. The respondent achieved his School Certificate and (was) accepted into the Australian Army, but was discharged within two years when his services were no longer required. Since then he was primarily employed as a truck driver, until diagnosed with Parkinson's disease in early 2002, after which he was on a disability pension. A report by Associate Professor Zagami was tendered in relation to the respondent's Parkinson's disease. He noted that he 'did not believe that a long custodial sentence per se would have any significant impact on respondent's Parkinsonian condition. However, he would need access to regular and timely medical review periodically …. He is likely to encounter significant complications as time goes on … [and] most likely need periodic changes in his medication regime and may need to dose more frequently. He will clearly need to have regular access to his medication in a timely fashion, because if it is delayed, then he will be exposed to being relatively immobile'. A report by Dr Christopher Lennings, consultant psychiatrist, was also tendered. His Honour found that opinions by the respondent expressed in the report were suggestive of the 'greed and self indulgence which underlie these offences'."

(He also found that "the report proceeds on the basis of the facts asserted by the offender and has no regard for the effect of the jury's verdicts. That defect renders it largely useless"). "The respondent has a prior criminal record, which contains drug and dishonesty offences, but no offences of violence or sexual assault." 35 The offences of aggravated sexual assault contrary to s 61J of the Crimes Act have attached to them pursuant to Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) a standard non parole period of ten years. For each of these ten offences (eight committed against JA and two against BA) his Honour set a non parole period of nine years. The prescription of the ten year non parole period was expressly drawn to attention by counsel (25 June 2004 T3), again somewhat cryptically in a written submission and yet again in relation to the decision in R v Way 2004 60 NSWLR 168 in which judgment had been delivered on 11 May 2004 (22 October 2004 T11-12). 36 Regrettably, the statutory prescription appears to have been overlooked when the judge came to pass sentence and there is no reference to it in his remarks and, of course, he made no record of any reason for reducing the standard non parole period as obliged by the Sentencing Act s 54B(4). 37 The occurrence of error in this regard is not in dispute but it is disputed that a consequence of the error should be intervention by this Court and increase in any practical sense of the term to be served by the respondent. 38 The contention of the Crown that the sentences were manifestly inadequate is sought to be supported by a series of compounding considerations in addition to the explicit submission of error by failure to comply with the abovementioned statutory directive. 39 These considerations can be summarized as:

(a) insufficient weight having been given to general deterrence; (b) the individual sentences for kidnap (count 1) and aggravated sexual assault (counts 6, 13, 14, 15, 16, 19, 20, 23, 29 and 30) were inadequate; (c) the sentences were not structured to allow for their separate criminality and (d) the structure of the sentences did not allow for totality. 40 Given the conceded omission, an initial issue arises as to whether at least the standard non parole period should have been set for the offences of aggravated sexual assault. It is applicable for an offence in the middle of the range of objective seriousness of that particular offence: Sentencing Act s 54A(2). I reject the submission of the respondent that the paraphrase of the statutory language as a "mid range offence" demonstrates an error of approach in Way and R v Pellew [2004] NSWCCA 434 by adverting to a range rather than to a notional point in the middle of the range. Where that language has been adopted it is clear that it is not being suggested that the statute be other than faithfully implemented. 41 Although the learned sentencing judge did not advert to the statute, he considered where "the sexual offences" lay "on the scale of seriousness". He found: "…….they all lie toward the top of the scale. The offender must be regarded as a calculating sexual predator who chooses young women as his victims and employs weapons and drugs to enable him to have his way with them". 42 As I have already said, at the time of the offences JA was aged eighteen, BA was aged sixteen. 43 The question arises whether, in applying the statute, individual offences are assessed for the purpose of designating where they fall within the range of seriousness by reference to only the factual ingredients or by reference of the context of the case. In a case such as the present, where the context includes multiple offences, the Crown submission that "context" includes multiple offences should be rejected. The statute speaks only of "an" offence and its location in the middle of the range of seriousness. That does not mean that consideration of the immediately surrounding circumstances to the commission of an offence is to be excluded. In the present case there is significance in how each victim came to be where the assault took place, as well as the particular forms of sexual assault in each case, and the particular facts giving rise to the circumstance of aggravation. The table of standard non parole periods in s 54D of the Sentencing Act sets the one term for any offence contrary to s 61J, but there are seven different defined circumstances pursuant to s 61J(2) and it is obvious that those could be contributors to different levels of seriousness to an offence which is still charged within the ambit of the section. Senior counsel for the respondent did not submit that none of these offences was to be assessed as mid range. He did submit that some were more serious than others and, although he submitted that some should be assessed as falling below that point of range, he accepted that this did not prevent different penalties so as to reflect the escalating seriousness of repeated offence. He submitted that there should not be a global assessment of the seriousness of the total offences and I agree with that contention. 44 Had his Honour adverted to the statute, the first step ought to have been to assess whether the individual offences lay in the middle of the range of seriousness. 45 In each case of offence in which JA was the victim, the circumstance of aggravation was a threat to inflict actual bodily harm. A significant element of the ongoing threat to which she was subject was delivered whilst she was blindfolded, thrown on a bed and stroked on her buttocks by a knife. The oral threat was in terms "if you don't do everything I tell you, then I'm going to stab you". Thereafter, omitting reference to what was separately charged as counts 2, 3 and 4 (indecent assault prior to the activity that I have just described, amphetamine injection and pubic hair shaving) the first aggravated sexual assault offence in sequence was the insertion of a large dildo into the vagina (count 6). That offence falls at least in the middle of the range of objective seriousness. 46 After events leading to the arrival at the abandoned house, JA was subjected to cunnilingus (count 13), fellatio (count 14), penile penetration to the vagina (count 15) and digital penetration (count 16). Those offences should also be assessed at least as falling in the middle of the range of objective seriousness. It could be argued that the act of digital penetration constituting count 16 fell below that level and, if it were considered in isolation, there might be substance in that view. However, it was the fifth sequential assault and the factor of escalation deriving therefrom was correctly recognized and that, taken with the immediate circumstances and the nature of the threat, places this offence on this occasion, at least in the middle of the range of seriousness. 47 Counts 19 and 20 involved successively inserting fingers and penis into the victim's vagina after the shower at the truck stop and the acquisition of the school uniform described. Individually viewed, these offences fall at least into the middle of the range of seriousness in the particular circumstances. 48 The final aggravated sexual assault on JA (count 23) occurred in bushland and again involved digital penetration whilst JA was forced to apply her hand to the respondent's penis. This culminating offence, recognizing the escalation derived from repetition, also meets the criterion for the application of the standard non parole period. 49 Once the initial requisite for the application of that non parole period exists, it arises for determination whether, for any offence against JA, a non parole period longer than the standard ten years should be set. Available reasons for this are limited to factors referred to in s 21A of the Sentencing Act. See s 54B(3). It is convenient to defer this matter. 50 I turn to the offences charged under the same section (s 61J(1)(b)) in which BA was the victim. Two offences occurred at her own flat and involved cunnilingus (count 29) and digital penetration (count 30). It is important to bear in mind that the jury failed to agree and the respondent is unconvicted in respect of offences of kidnap of (count 26) and administering a stupefying drug to BA (count 27). In his remarks Maguire DCJ said that he would pay little attention to the fact that these offences occurred in BA's home which was not "invaded". He added: "The jury's verdicts suggest that she took him there voluntarily". 51 The basis for this remark is not clear but it may refer to the absence of agreement on the count charging kidnap. It was an ingredient, upon which the jury must be taken to have been satisfied of both counts 29 and 30, that the sexual assaults on BA were accompanied by a threat to do actual bodily harm to her. Although I have recited the unchallenged facts, what is said must be viewed as not constituting the offence of detaining for advantage, upon which charge no finding of guilt was made, and I draw from the stated facts that the threat was in terms that, if BA screamed, her throat would be cut. It was not open to finding that this threat was uttered in circumstances of BA's detention. I am conscious that the recitation of facts did not segregate those which described elements of kidnap, but undertaking the requisite severance and, of course, viewing the offences independently of those in which JA was victim, I would not conclude that the sentencing judge ought to have assessed these offences or either of them as falling in the middle of the range of seriousness of such offences 52 If such assessment had been made, a consequence would be that departure from the standard non parole period (as his Honour did) is permitted: Way; Pellew supra. 53 The Crown contention of error such as to attract the intervention of this Court by reason of the sentencing judge's failure to assess the offences of aggravated sexual assault as falling within the middle of the range of seriousness for such offences, thus rendering the standard non parole period applicable, should be sustained in respect of the eight offences involving JA.

DETERRENCE 54 His Honour limited his remarks on the subject of deterrence to observing: "Sentences are required that will deter other potential offences (sic) and this offender himself". 55 That statement is not, and could not be challenged, but the Crown submits that his Honour failed to implement his expressed intention. An offence of administering a stupefying drug as I have mentioned, carries a maximum penalty of twenty five years imprisonment, and an offence of aggravated sexual assault a prescribed maximum penalty of twenty years imprisonment. 56 The respondent is guilty of four offences of the former category and ten offences of the latter. The implied rhetorical question posed by the Crown is how an effective sentence of thirteen years imprisonment with a non parole period of ten years could operate as an effective deterrent to a person contemplating a like offence. The answer is that it is inadequate for that purpose and the Crown submission is made good. STRUCTURE OF THE SENTENCES AND SEPARATE CRIMINALITY 57 In a written submission it was conceded by the respondent that the structure of the sentences did not recognize their separate criminality, but it was not conceded that this demanded intervention by this Court. 58 As already noted in respect of the offences against JA, his Honour imposed individual sentences of nine years non parole period and total term of twelve years on all of the counts for administering a stupefying drug and the same sentences on the counts of aggravated sexual assault, with the result that twelve sentences for offences of two different natures were to be served concurrently. A different sentence was imposed for the offence of kidnap but the service of it was entirely subsumed within the twelve concurrent sentences abovementioned. 59 When dealing with the offences in which BA was the victim, his Honour again imposed a sentence identical to the twelve sentences imposed in respect of JA for the two offences of aggravated sexual assault. However, he ordered that these sentences commence one year after those imposed for the offences in which JA was the victim.

TOTALITY 60 It is received doctrine that where a judge sentences an offender for more than one offence the judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as questions of totality: Pearce v The Queen 1998 194 CLR 610. 61 In this case it does not appear that this process was followed and it is difficult to identify how the pattern of sentences determined by his Honour could have derived from adherence to the required process. 62 The Crown contention was that, in whatever fashion his Honour approached his task, the resultant effective sentence was manifestly inadequate in all the circumstances. I regard this contention as made out but some express matters raised on behalf of the respondent should be addressed.

SUBMISSIONS AT FIRST INSTANCE 63 An outline of submissions by the Crown was tendered to the sentencing judge. In this Court it was argued that "defence counsel did not disagree with what was said in those submissions. There is no requirement that his Honour had to recite in his remarks as if by rote, matters which were not in dispute before him". 64 There is no such requirement but the present submission does not proceed to indicate how anything favourable to the respondent can be derived from what was presented to the trial judge in that written outline. In that it might be assumed that his Honour took the matters into account, the question remains whether appropriate weight was given. It is instructive to recapitulate the outline presented to his Honour. 65 The various maximum prescribed penalties were tabulated and, in relation to the aggravated sexual assault offences, an addendum "SNP ten years" was apparently designed as a reminder of the existence of the standard non parole period. 66 The submission continued to note matters such as the commencement of the respondent's custody and some sentencing principles which are scarcely in doubt. The statutory prescription of maximum penalty is a first step in gauging seriousness; it was open to find that the jury accepted the evidence of both victims; that there were two victims on separate dates is relevant for rebutting any claim to mitigation based upon an assertion that crime was an isolated instance of offending; sentence should reflect the totality of criminality and the aggregation of sentences appropriate to each offence must be a just and appropriate measure of that totality. 67 Reference was made to the prescription of aggravating and mitigating factors set out in s 21A of the Sentencing Act. The Crown drew attention to aggravating factors (using subparagraphs in the statutory provision); (b) the offence involved the actual or threatened use of violence (noting that this was an ingredient of the aggravated sexual assault charges); (c) the offence involved the threatened use of a knife; (d) the respondent's record of previous convictions (limited to denying leniency); (g) the injury, emotional harm, loss or damage caused by the offence was substantial; (i) offence was committed without regard for public safety in those offences which involved the forcible injection of stupefying drug; (l) the victims were vulnerable given their respective young ages; (m) offences involved multiple victims or a series of criminal acts (bearing in mind that the separate acts are the subject of individual charges) and (n) the offence was part of a planned criminal activity in that the respondent was armed with items such as police identification, handcuffs, bandages, knife, lingerie and the dildo, all of which show a degree of planning. 68 His Honour was reminded that he should assess where a particular offence lay on the scale of seriousness, particularly in respect of the aggravated sexual assault charges: R v Gabriel, unreported, NSWCCA 18 November 1994; of the seriousness of committing a sexual offence when the victim is in her own home; insofar as the respondent may claim to have a problem with alcohol or drugs, that it would have no mitigating effect particularly as the respondent had admitted that the consumption of amphetamines increased his sexual desire. 69 Reference was made to the absence of any manifestation of remorse and the gloomy prognostication in the pre sentence report. 70 As matters of mitigation the Crown document recorded the pleas of guilty to two charges and that ill health may be a mitigating factor if there is evidence to establish that undergoing imprisonment will be more burdensome upon the offender for that reason.

PROPORTIONALITY 71 Further submissions on behalf of the respondent articulated that a sentence cannot be increased "to send a message". It is not perceived that his Honour did so, nor would this Court do so in any resentence. It is, of course, increase beyond proportionate sentence which would become otiose, but that is not to say that sentence should not include an element of general deterrence.

THE RISK OF SERVICE OF FULL TERM 72 The respondent seeks to rely upon information presented to the Court in the affidavit of Mr Hutchison, the solicitor in charge of the Prisoners Legal Service of the Legal Aid Commission of New South Wales. In summary, Mr Hutchison testifies that the Parole Board exercising its function with regard in particular to s 135 of the Crimes (Administration of Sentences) Act 1999 takes the view that it is not in the public interest to grant parole to an untreated sex offender and that the risk of reoffending is high. Alternatively the Parole Board may grant parole only towards the end of sentence (six months is suggested) so that there is only a brief period of parole supervision and monitoring before the sentence expires. 73 He claimed that this means in practical terms that an offender must undergo therapy programmes of various sorts which are available under the umbrella title CUBIT (Custody Based Intensive Treatment). An offender who wishes to participate in such programmes, but denies offences, is not accepted into the programmes. 74 The submission that this should be taken into account as a reduction factor in the assessment of sentence should be rejected. The core of jurisdiction to impose any sentence is guilt of the offender. It is an election of the offender not to accept guilt but it would be inconsistent with the task of the sentencer to make an assessment other than on the basis that guilt has been proved beyond reasonable doubt. 75 Counsel referred to no authority for the proposition that this particular risk of service of full sentence could be a factor in assessment. The absence of authority is not surprising. It requires little imagination to postulate a situation that, if a persistent claim of innocence after conviction were maintained and this attracted a reduction in sentence, an offender could adopt that position but, after receiving the discounted sentence, alter his stance, undertake a CUBIT programme and earn release from the shortened sentence. Once sentence is passed (absent express legislation such as applies to persons who renege on offers to assist law enforcement authority) there is no facility for cancelling a discount received by a manipulative offender. COMPENSATING ERROR 76 The ultimate submission of the respondent was that, accepting that error can be identified in the process of formulating the sentences, those favouring the respondent and those contrary to his interests "cancelled each other out" and the final effective sentence of thirteen years total term with a ten year non parole period was not so inadequate as to justify intervention. Alternatively, the respondent sought implementation of the residual discretion of this Court to dismiss a Crown appeal, particularly on the basis that if regard be paid to "double jeopardy" and the principles of restraint in resentence after a successful Crown appeal, a greater sentence would not be warranted. 77 In my opinion the Crown submission that the sentence, in the sense of its overall effective term and non parole period, was manifestly inadequate is made out. The most convenient way to deal with that outcome is to undertake the task of resentence. In assessing the various terms for this purpose there must be implemented the restraint appropriate when increased sentence is imposed following successful Crown appeal: R v Allpass 1993 72 A Crim R 561 with the result that they will generally be less than what ought to have been imposed at first instance: R v Holder and Johnston 1983 3 NSWLR 245; Dinsdale v The Queen 2000 202 CLR 321 (per Kirby J).

RESENTENCE 78 It is submitted by the respondent that the sentence of three years six months with a non parole period of two years eight months was "well within" the range generally imposed for an offence of kidnap. The detention of the victim JA was for the respondent's sexual gratification. She was captive for approximately twenty hours during which he pursued his purpose, although the criminality of the offences committed during captivity are to be separately assessed. 79 Against the statutory maximum of fourteen years imprisonment a total sentence of one quarter of that maximum fails to reflect the gravity of that particular offence and an appropriate sentence for this offence by this offender is a non parole period of four years six months with a total term of six years. 80 I repeat that in making that assessment and those following, there is taken into account the restraints applicable when resentencing after successful Crown appeal. 81 There are four counts of administering a stupefying drug to JA. Whilst conscious of the escalation of seriousness which derives from repetition of offending, in the immediate circumstances pertinent to these offences, the submission of the Crown that the sentences may be served concurrently can be adopted. Caution has to be taken against making an assessment on a global basis rather than focussing upon individual offences. Nevertheless, a gauge to the seriousness with which Parliament has regarded offences of this type can be found in the prescription of a maximum term of twenty five years imprisonment. Except where life sentence is available this is the equivalent of the highest available determinate sentence to be found in the Crimes Act. For these offences it is of great importance to pay heed to general deterrence and significant weight should be given to it: R v Bulut [2004] NSWCCA 325. 82 I would assess a sentence of twelve years non parole period with a total term of sixteen years for each of counts 3, 10, 17 and 18. 83 I turn to the counts of aggravated sexual assault committed on JA. Section 61J of the Crimes Act includes a variety of categories of sexual attack and there is no implication that each is as heinous as another if done without consent: Ibbs v The Queen 1987 163 CLR 447. I have already observed the available different matters which might provide the element of aggravation although in the present cases it is the same. 84 For reasons along the lines I have mentioned in relation to the multiple offences of administering a stupefying drug, I would assess sentences to be served concurrently for the offences of aggravated sexual assault on JA. My conclusion that these offences fell at least in the middle of the range of objective seriousness has been earlier discussed. I am unpersuaded that any basis is shown departing from the standard non parole period. In the circumstances of these offences, I consider that an appropriate sentence would have a higher non parole period than the prescribed standard but resentencing after Crown appeal, I would apply no more than the standard non parole period. Section 44 of the Sentencing Act requires the setting of a non parole period first and (absent special circumstances) a balance of term not exceeding one third of that period. For these offences I would set a non parole period of ten years with a total term of thirteen years. The two counts of indecent assault committed against JA attracted sentences at first instance of a non parole period of two years three months and a total term of three years to be served concurrently. Senior counsel for the respondent submitted that these sentences were appropriate and neither excessive nor inadequate. I agree and would not alter them. 85 Sentences of the same length were imposed for the offences against s 178BA of the Crimes Act which amounted in essence to forcing JA to disgorge money by using automatic teller machines. These were charged as counts 11 and 24. The respondent pleaded guilty to count 24. Utilitarian value of that plea was nugatory given that it was made in the context of requiring trial on twenty nine other counts. Nor does the plea of guilty impress in this case as an indication of contrition or remorse. The respondent submits that these sentences were in fact excessive. The threat to stab accompanying the withdrawal from the ATM charged in count 11 is recounted in the Facts summary and there is no detail concerning count 24. 86 Counsel appearing for the Crown in appeal stated that he was not concerned that those sentences be served wholly concurrently with others. The respondent has not appealed against any of the sentences and the course suggested by the Crown would extinguish any practical effect and the approach can be adopted. In so doing I do not overlook the submission of the respondent that, although appeal asserting excessiveness of sentence is not brought, it is relevant to look at possible compensating errors. 87 I turn to the offences committed against BA. For the reasons given above it was open to the sentencing judge to depart from the standard non parole period. I would not intervene to alter the assessments made by him of nine years non parole period with a total term of twelve years. 88 I would reject the submission of the respondent that the imposition of a non parole period of two years three months and a total term of three years for the indecent assault (pubic shaving of BA) is excessive. 89 Count 31 charging stealing goods from BA's dwelling was the other count to which the respondent pleaded guilty. The utilitarian value of such plea does not rise above infinitesimal. The available maximum sentence was seven years imprisonment. His Honour also sentenced the respondent to a non parole period of two years and three months and a total term of three years for this offence. The Crown does not seek accumulation in respect of this sentence and I would not intervene. I would reject the submission that it was excessive in the circumstances.

CUMULATION, TOTALITY AND SPECIAL CIRCUMSTANCES ON RESENTENCE 90 Setting to one side those sentences in respect of which the Crown does not seek intervention and is content for concurrent service, a tabulation of sentences assessed as abovementioned can be created. 91 The table is as follows:

Non parole period Total term (a) Kidnap (JA) 4 years 6 months 6 years (b)Administering stupefying drug (JA) 12 years 16 years (c) Aggravated sexual assault (JA) 10 years 13 years (d) Aggravated sexual assault (BA) 9 years 12 years Total: 35 years 6 months 47 years

92 Whilst the criminality of the respondent is grave and I would endorse the finding of the trial judge that he is a calculating sexual predator upon young women, adherence to the approach articulated in Pearce would contra-indicate accumulation in whole of the tabulated sentences and non parole periods. 93 I would set an initial sentence for the kidnap commencing upon the date in which the respondent was first taken into custody, commence sentences for administering a stupefying drug two years after the commencement of that sentence, commence sentences for aggravated sexual assault three years after the commencement of those sentences and sentence for aggravated sexual assault on BA one year after the commencement of those sentences. 94 The sentencing judge did not find special circumstances. I also see no reason to find special circumstances so as to alter the proportion between the non parole period and balance of sentence specified in the statute. 95 As indicated, I would propose variation of sentence and orders in respect of the offences of kidnap, administering a stupefying drug and aggravated sexual assault against JA and aggravated sexual assault against BA. It will be convenient and allow easier reference if I include reimposition of sentences on other matters in which intervention is not to occur. 96 I propose the following orders:

a. Crown appeal allowed. b. Sentences imposed in the District Court quashed and in lieu thereof the respondent sentenced as follows: (i) Count 1 (kidnap JA). Imprisonment consisting of a non parole period of four years six months commencing on 10 May 2003 and expiring on 9 November 2007 and a total term of six years commencing on 10 May 2003. (ii) Counts 2 and 4 (indecent assault JA). Imprisonment consisting of a non parole period of two years three months commencing on 10 May 2003 and expiring on 9 August 2005 and a total term of three years commencing on 10 May 2003. The sentences on these counts to be served concurrently with each other. (iii) Counts 3, 10, 17 and 18 (administer stupefying drug JA). Imprisonment consisting of a non parole period of twelve years commencing on 10 May 2005 and expiring on 9 May 2017 and a total term of sixteen years commencing on 10 May 2005. The sentences on these counts to be served concurrently with each other. (iv) Counts 6, 13, 14, 15, 16, 19, 20 and 23 (aggravated sexual assault JA). Imprisonment consisting of a non parole period of ten years commencing on 10 May 2008 and expiring on 9 May 2018 and a total term of thirteen years commencing on 10 May 2008. The sentences on these counts to be served concurrently with each other. (v) Counts 11 and 24 (obtain benefit by deception JA). Imprisonment consisting of a non parole period of two years three months commencing on 10 May 2003 and expiring on 9 August 2005 with a total term of three years commencing on 10 May 2003. The sentences on these counts to be served concurrently with each other. (vi) Count 25 (steal from person JA). Imprisonment consisting of a non parole period of four years six months commencing on 10 May 2003 and expiring on 9 November 2007 and a total term of six years commencing on 10 May 2003. (vii) Count 28 (indecent assault BA). Imprisonment consisting of a non parole period of two years three months commencing on 10 May 2004 and expiring on 9 August 2006 with a total term of three years commencing on 10 May 2004. (viii) Counts 29 and 30 (aggravated sexual assault BA). Imprisonment consisting of a non parole period of nine years commencing on 10 May 2009 and expiring on 9 May 2018 with a total term of twelve years commencing on 10 May 2009. The sentences on these counts to be served concurrently with each other. (ix) Count 31 (steal from dwelling BA). Imprisonment consisting of a non parole period of two years three months commencing on 10 May 2004 and expiring on 9 August 2006 and a total term of six years commencing on 10 May 2004.

c. The earliest date of eligibility for parole is specified as 9 May 2018. 97 It is noted that the effective overall sentence amounts to non parole periods extending over fifteen years and a total sentence of eighteen years. 98 HOEBEN J: I agree with Grove J.

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