Regina v RM - [2015] NSWCCA 4 - NSWCCA 2014 case summary — Zoe

NSWNSWCCA

Regina v RM

[2015] NSWCCA 4

Court of Criminal Appeal (NSW)|2014-12-09|Before: Ward JA, Wilson J, Hulme J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2014-12-09

Before

Ward JA, Wilson J, Hulme J

Catchwords

(2009) 193 A Crim R 23 Cahyadi v R [2007] NSWCCA 1
(2011) 244 CLR 462 Hili v The Queen [2010] HCA 45, (2010) 242 CLR 520 IE v R [2008] NSWCCA 70
(2008) 183 A Crim R 150 JL v R [2014] NSWCCA 130 JM v R [2014] NSWCCA 297 KT v R [2008] NSWCCA 51
(2008) 182 A Crim R 571 Markarian v The Queen [2005] HCA 25

Source

Original judgment source is linked above.

Catchwords

(2009) 193 A Crim R 23 Cahyadi v R [2007] NSWCCA 1(2011) 244 CLR 462 Hili v The Queen [2010] HCA 45, (2010) 242 CLR 520 IE v R [2008] NSWCCA 70(2008) 183 A Crim R 150 JL v R [2014] NSWCCA 130 JM v R [2014] NSWCCA 297 KT v R [2008] NSWCCA 51(2008) 182 A Crim R 571 Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357 Martin v R [2014] NSWCCA 124 MJ v RCPD v R [2010] NSWCCA 52 MLP v R [2006] NSWCCA 271(1998) 194 CLR 610 R v AJP [2004] NSWCCA 434(2004) 150 A Crim R 575 R v Blackman and Walters [2001] NSWCCA 121 R v Borkowski [2009] NSWCCA 102(2000) 202 CLR 321 R v Egan [2013] NSWCCA 196 R v GroverGrover v R [2013] NSWCCA 149 R v Holyoak (1995) 82 A Crim R 502 R v MAKR v MSK [2006] NSWCCA 381(2006) 167 A Crim R 159 R v Nykolyn [2012] NSWCCA 219 R v PGM [2008] NSWCCA 172R v LeNguyen v R

Judgment (14 paragraphs)

[1]

Background

The agreed facts in relation to each of the offences may be summarised as follows.
The respondent and the complainant lived next door to each other in a cul de sac. They frequently played in the street with other children from the neighbourhood. The age difference between the two boys was eight years and three months.
The conduct the subject of the first two counts occurred when the complainant was about five or six years old. He and the respondent walked into the front yard of the complainant's home to an area where there was a fern shrubbery and they were shielded from view. The respondent pulled down his pants and underwear exposing his penis and requested the complainant to do the same. The complainant did so. The respondent then touched and fondled the complainant's penis for about 10 - 15 minutes. While masturbating the respondent's penis, the offender's penis was exposed to the complainant and the complainant observed it to be erect. The respondent told the complainant not to tell anyone and made the complainant promise not to do so.
The offences the subject of counts 3 and 4 took place a couple of weeks to a month after the first two offences. The respondent said to the complainant "let's do that thing again" and led the complainant to the fern shrubbery; he asked the complainant to remove his pants; the complainant did so and the respondent removed his own pants. The respondent fondled the complainant's penis (count 3). The respondent's penis became erect while he was fondling the complainant's penis. He asked the complainant to masturbate him and explained how to do so (count 4). The complainant had never touched another person's penis. The respondent did not ejaculate. The respondent again masturbated for 10-15 minutes.
It was agreed that the incidents described in offences 3 and 4 continued regularly thereafter, occurring once a month and sometimes as frequently as every two weeks, in the same secluded spot of the complainant's front garden.
Offence 5 took place during the same period referred to in the first four charges but this time in the main bathroom of the complainant's house. The respondent removed his pants, stood over the toilet and masturbated himself until ejaculation. This was the first time that the complainant had seen the respondent ejaculate. Following that incident, the respondent regularly ejaculated in front of the complainant. He did this outside in the garden and would typically wipe the semen from himself and onto the shrubs. During this period, he also masturbated the complainant, asking the complainant to do the same to him. Although the complainant became physically aroused during this conduct, he did not ever ejaculate. Behaviour of this nature continued for about 1-1½ years after the incident the subject of count 5, until the incident charged by count 6 occurred.
The offence the subject of count 6 took place after the complainant turned seven. The respondent was about 15-16 years old. The respondent asked the complainant to perform oral sex upon him. The incident occurred again in the hidden area of the fern shrubbery. The respondent removed his pants, asked the complainant to masturbate him and then explained that the complainant had to suck his penis. The respondent placed his penis in the complainant's mouth and the complainant did as he had been directed. The complainant complained about the "weird" taste but the respondent told him to keep going. At some stage the respondent removed his penis from the complainant's mouth and then masturbated until ejaculation. He told the complainant this was 'really good' for him.
After this, the respondent regularly asked the complainant to perform oral sex upon him. The acts took place in the fern shrubbery. On most occasions, the respondent would ejaculate by masturbating himself. It was agreed that the complainant could not recall if the respondent ever ejaculated inside his mouth but that the complainant thought he may have done. (The respondent denied this and the sentencing judge did not find beyond reasonable doubt that such an event occurred.)
The conduct in offence 7 was attempted sexual intercourse with the complainant. The sentencing judge was satisfied from all the evidence that this occurred when the respondent was 17 years of age. The complainant and the respondent were swimming in a pool at the complainant's house; the respondent swam up to the complainant and asked him to remove his swimming costume. The complainant did so. He then felt the erect penis of the respondent behind him as the respondent attempted to place his penis into the complainant's anus. The respondent continued to thrust towards the complainant's anus for some time but was unable to achieve penetration. After a while the respondent moved away from the complainant and then got out of the pool and went home. At the time, the complainant was eight or nine years of age.
That was the last occasion the respondent sexually interfered with the complainant, the respondent voluntarily ceasing his offending conduct at that time. He went overseas for a period of time and then left the neighbourhood when his family later moved house.
Due to his infancy, the complainant did not understand the nature of what was happening to him at the respondent's hands. However, by the time of the last offence he realised that the conduct was not normal. The complainant had started to say "I don't want to" when the respondent urged "let's do that thing"; however, the respondent encouraged him to continue and the complainant felt pressured into doing so. During each of the offences the respondent told the complainant that he should not tell anyone. The complainant was not aware that what the respondent was doing was wrong but he felt uncomfortable about it.
On 8 May 2013, more than eight years after the last offence, the complainant disclosed the sexual abuse to his mother. In the years leading up to that disclosure, the complainant had experienced symptoms of depression. The complainant had not told his mother before then about what had happened because he did not want to overburden her. The complainant had had an elder sister who was severely disabled and who had required 24 hour care from their mother. That sibling died in July 2009. The complainant's father had a breakdown early in 2010 and the complainant's parents separated and divorced in 2012. The stress of these events was such that the complainant was unwilling to add to them with a disclosure at an earlier time.
The complainant made a statement to police on 17 May 2013 detailing the offences. The police subsequently applied for and were granted a surveillance device warrant authorising the use of listening devices to record telephone conversations between the respondent and the complainant. On 7 August 2013, the complainant made a telephone call to the respondent, which was recorded, in which the respondent acknowledged that what he had done was wrong and apologised to the complainant. There was a subsequent recorded telephone conversation on 8 August 2013 during which the respondent made further admissions in relation to the commission of the offences.
Three days later, the respondent posted a message to the complainant on Facebook apologising "with the utmost sincerity and from the bottom of my heart for the utterly foolish and wrong things I did". In that message, he acknowledged that he had taken advantage of his friendship with the complainant and that it had been wrong to do so. (The sentencing judge accepted that the message, written at a time when the respondent was not aware of any investigation and could not have written it as mitigating conduct, showed profound remorse.)
On 13 August 2013, the respondent was arrested. He agreed that he had admitted to the commission of offences during the telephone calls and agreed that the complainant had trusted him, which made it easier for him to undertake the behaviour in which he had engaged.
The evidence before the sentencing judge revealed that, in the period between the commission of the offences and his arrest, the respondent had completed a degree course at university and, since 2011 had been employed as a graphic designer. The respondent denies any particular interest in minors and any interest in paedophilia. He describes himself as heterosexual and is in a de facto heterosexual relationship.

[2]

Sentence hearing

A pre-sentence report dated 2 May 2014 was tendered at the sentencing hearing. That report assessed the respondent at a medium/high risk of re-offending based, it appears, on the pre-sentence psychological assessment tendered as an annexure to the pre-sentence report. That assessment, carried out without the benefit of an interview with the respondent, placed the respondent in a moderate to high risk category relative to other male sex offenders. The author of that assessment noted that it was not a comprehensive risk assessment.
Character evidence was tendered, including from: the respondent's de facto partner (who was cross-examined by the Crown); a family friend; a business college lecturer; and the respondent's former housemate.
The respondent gave evidence before the sentencing judge. His Honour broadly accepted that evidence although he formed the view that the respondent was engaging in some degree of re-construction when the respondent asserted in evidence that all the children that had played together from the cul de sac had acted as if they were the same age. His Honour accepted that there was a close camaraderie in the street amongst the children that lived there but was not satisfied that when the respondent was 13 years of age he considered the five year old complainant as his equal. His Honour noted that there was no suggestion that any threats were made to the complainant. The sentencing judge accepted that the evidence was overwhelmingly that the complainant was the victim of the offences and bore no responsibility for them. His Honour accepted without qualification the evidence given by the respondent's de facto partner.
Also tendered before his Honour was a report from a clinical psychologist, Dr Champion, who said that while the nature of the offences potentially suggested some form of paraphilia (intense sexual arousal to atypical individuals) or sexual deviation, he did not elicit a report from the respondent suggesting the presence of attitudes and values or thought processes that would normally accompany such a form of deviance ([40]).
Dr Champion had some difficulty with the respondent's stated explanation of "sexual exploration" having regard to the age of the offender towards the end of the offending behaviour and wondered whether the offender might have some underlying issues or personal doubts in relation to his sexuality which he could not then and cannot now readily articulate ([40]). Dr Champion was inclined to the view that the risk of offending was at the lower end of the scale but expressed concern at the age discrepancy between the respondent and the complainant. He recommended that the respondent undertake psychological counselling. Dr Champion also expressed the view that the respondent might struggle to cope with the prison system ([43]).
There was also a treatment update report from a clinical psychologist (Ms Wyzenbeek) who concluded that the respondent did not present with a sexual interest in children, and reported that he had engaged well with psychological treatment and would shortly finish a programme of regular psychological sessions with her, and enter a maintenance phase, by way of transition.
In relation to the pre-sentence report, the sentencing judge observed that the psychologist's report had noted there were very few people with similar offending circumstances to that of the respondent's conduct. His Honour was satisfied on the balance of probabilities that the respondent had good prospects of not re-offending and excellent prospects of rehabilitation. The Crown does not cavil with that assessment.
His Honour was satisfied that regret and remorse had been clearly established by the respondent's actions both in relation to the telephone calls and the Facebook message, in which he clearly admitted engaging in improper behaviour and expressed his sorrow for it.
His Honour was also satisfied that the respondent knew what he was doing was very wrong but was not satisfied that the respondent knew at his age that what he was doing in counts 1-5 amounted to criminal behaviour. The respondent said that his conduct was initially exploration but became gratification. His Honour accepted that the early offences may well have reflected the offender engaging in some early adolescent sexual discovery as he was going through puberty but was not satisfied that such a characterisation could be attached to the two major offences.
His Honour accepted that the respondent's rehabilitation to a law abiding citizen was impressive; that he is highly regarded by those who know him and is considered a person of great capacity.
His Honour made it clear that he had found this a difficult sentencing exercise to carry out. His Honour accepted that the facts disclosed serious criminal conduct, noted the Crown's acknowledgement that the first five offences could have been dealt with summarily; and noted that each of charges 6 and 7 was a serious children's indictable offence within the meaning of the Children (Criminal Proceedings) Act 1987 (NSW), and, even if charged at a time when the respondent was able to be prosecuted as a child, such offences were dealt with at law.
As to the approach to the sentencing of offenders for conduct occurring when they were juveniles, his Honour had express regard to the principles set out in KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571.
His Honour took into account various matters: that the complainant had suffered an emotional reaction or psychological reaction to what had occurred to him (although not such as to go beyond the harm that might ordinarily be expected in such a case), that the course of the conduct was over a number of years, and that the complainant was genuinely a victim.
His Honour noted the Crown's acceptance that the respondent was very remorseful and that his remorse was not influenced by a belief that it could mitigate his sentence; and that he was of good character. His Honour considered there was force to the respondent's submission that the voluntary cessation of the conduct was a positive factor in the determination of the index sentences. His Honour noted that the main effect of delay in the reporting of the offences was the exceptional rehabilitation of the respondent in that time.
An important matter that his Honour took into account was the lack of violence, threats, aggression or intimidation during the commission of the offences.
As to the objective seriousness of the offences, his Honour accepted that the first five matters could have been dealt with summarily and that they did not demand a period of imprisonment. His Honour accepted that there was an element of adolescent sexual discovery motivating the respondent (in the earlier counts) but said that this could not explain all of the offending behaviour in the sixth and seventh charges, which did require a period of imprisonment.
His Honour concluded that the criminality of the sixth charge (fellatio) was "at the lower end of the range taking into account all of the circumstances". His Honour accepted that it was not an isolated offence. His Honour had regard to the infancy of the complainant and the youth of the respondent and noted that the section covered a wide range of sexual misconduct with children. His Honour then said "this offence finds itself in the lower end of the range". (The respondent places some weight on the differing expressions used by the sentencing judge to emphasise that there was no finding that this offence was at the bottom of the range.)
As to the seventh charge (attempted penile/anal intercourse), his Honour noted that it was an isolated incident but that it constituted serious criminal conduct. His Honour concluded that this offence fell in the lower end of the range of offences encompassed by the relevant section.
His Honour had already indicated his intention to allow a 35% discount to reflect the very early guilty pleas and the exceptional remorse. Taking into account the mitigating matters, including the plea of guilty and the genuine remorse, his Honour concluded that sentences of 19 months' and 13 months' imprisonment, respectively, were appropriate for the sixth and seventh counts; and that a single five year good behaviour bond should be imposed for counts 1-5, having regard to the fact that those matters could have been dealt with in the Local Court, and the criminality in the circumstances of those offences.
As to the non-parole period for the sixth and seventh charges, his Honour considered that the minimum period having regard to the rehabilitation to date should be 25% of the head sentence in relation to each of those periods of 19 months and 13 months.
His Honour concluded that counts 6 and 7 were discrete events and that it was not appropriate to make sentences for them concurrent but, rather, some period of accumulation was required. His Honour assessed the total effective sentence as two years' imprisonment in relation to the sixth and seventh charges and, if required, would have fixed a non-parole period of six months.
His Honour indicated a concern that to imprison the respondent could fracture the rehabilitation process. His Honour ultimately reached the view, not without doubt, that his discretion should be exercised to suspend the sentence. His Honour took into account that the respondent's behaviour since being confronted with his conduct had been all that he could do. His Honour was persuaded that the risk of fracturing rehabilitation at this stage was such that the community would be advantaged if the respondent were given the opportunity to serve his sentence in the community, its implementation being suspended. His Honour said that he had given great weight to the fact that the respondent had himself voluntarily brought his offending behaviour to an end.

[6]

Ground 8 - Single bond

Ground 8 contends that his Honour erred by imposing a single bond as the sentence for all five offences in sequences 2, 17, 3, 19 and 5 (i.e., offences 1-5). It is submitted that a sentencing court is obliged, in the absence of any statutory provision to the contrary (such as s 53A of the Act), to impose a discrete sentence or penalty for each offence.
The respondents do not resist the proposition that his Honour erred in this regard.
Whilst his Honour was clearly in error in pronouncing a single sentence in relation to five offences, it is not entirely clear that the sentence actually imposed was erroneous.
The orders as entered on Justice Link, that being the "appropriate computer record" of the Court as contemplated by Rule 12 of Division 1 of Part 53 of the District Court Rules 1973, records the imposition of a separate bond for each of the individual offences. Despite that, and seemingly in accordance with his Honour's order as announced in court, the respondent entered only one s 9 bond, which referred to each of the five offences.
The entry to the Court's computer record, whilst not in accordance with sentence as pronounced by his Honour, could have the practical effect - in the absence of an order signed by the sentencing judge - of correcting the error in the sentence formulated by the sentencing judge. Rule 12 relevantly provides: Any judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on: (a) […], (b) the appropriate court file, or (c) the appropriate computer record, and that entry shall, when signed by the Judge or entered on the appropriate computer record, be the record of the judgment, order, sentence, direction or recommendation.
Some useful discussion of the precedence of the official record of sentence may be found in Cullen v R [2014] NSWCCA 162 at [34]-[36].
The question here is whether there is in fact a record of the sentence signed by the sentencing judge and, if so, whether it or the computer record is to be regarded as the final order of the court.
The physical file of the Court contains a document which records the orders made by the sentencing judge. In that document, an order imposing a conditional bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 upon the respondent with respect to sequences 2, 3, 5, 17 and 19 is recorded. The document additionally notes his Honour's sentencing orders in relation to the remaining two offences, sequences 20 and 16. The document is signed by the sentencing judge, and bears the date 23 July 2014.
Thus, the Court's record comprises both an entry on the "appropriate court file" and an entry on the "appropriate computer record", the terms of which differ.
In these circumstances, it is our view that the record of the Court is that signed by the sentencing judge, and the sentence pronounced is that which bears his Honour's signature, that being a single s 9 bond for offences 1 to 5.
Rule 12 as it is drafted gives precedence to an order or sentence entered on the court file over an entry on the appropriate computer record.
Even if the drafting of the rule is not significant to its construction, it is reasonable to conclude that the entry of the sentence outcome into Justice Link was not made until an entry recording the sentences imposed upon the respondent by the sentencing judge was manually recorded on the court's file, with the file thereafter conveyed to those court staff responsible for maintaining Justice Link. The file entry must have been signed by his Honour before the file left his Honour's chambers for that purpose.
Accepting that the court's order is as pronounced by the sentencing judge, since a record of his order signed by him is extant, the Crown's complaint is made out. His Honour was clearly in error in purporting to impose a single sentence for a number of separate offences.
Ground 8 is made good.

[7]

Grounds 2 and 3 - Indicative sentences

By grounds 2 and 3, the Crown contends that his Honour erred by indicating sentences of 19 months and 13 months, respectively, on the charges which are the subject of counts 6 and 7 respectively (sexual intercourse and attempted sexual intercourse).
In R v Egan, the Court noted (at [84]) that: "Remarks made by a judge prior to the delivery of judgment on sentence are seldom of use in identifying appellable error. It is accepted that in the exchanges with counsel in the course of submissions a judge will often express preliminary or tentative views that might not ultimately reflect the judge's concluded view: see, for example, the cases cited in Ghobrial v R [2012] NSWCCA 221 at [56]."
Nevertheless, the Crown places reliance on the recognition in R v Brown [2012] NSWCCA 199 at [17]; PD v R [2012] NSWCCA 242 at [44]; and R v Rae [2013] NSWCCA 9 at [33] that, while sentences indicated pursuant to s 53A(2)(b) are not themselves amenable to appeal, an erroneous approach in the indication of the sentence that would have been imposed for an offence may reveal error in the aggregate sentence ultimately reached.
In JM v R [2014] NSWCCA 297, the Court noted (at [40]) the following propositions: "… The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown, supra, at [17]; Nykolyn v R, supra, at [58]; PD v R [2012] NSWCCA 242 at [44]; R v Rae [2013] NSWCCA 9 at [32]-[33], [42]-[43]; Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [218], [227]; Subramaniam v R, supra, at [28]; SHR v R, supra, at [40]; R v Clarke, supra, at [56]; Martin v R [2014] NSWCCA 124 at [47]; JL v R [2014] NSWCCA 130 at [17]; Stoeski v R, supra, at [43]; CL v R [2014] NSWCCA 196 at [53]-[55]. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v R at [44],[82]; BJS v R [2013] NSWCCA 123 at [252]-[254]."
The sentencing judge correctly noted that each of the count 6 and count 7 offences was a "serious children's indictable offence" as defined in s 3 of the Children's (Criminal Proceedings) Act and was required to be dealt with according to law; and that the matters set out in s 6 of that Act were required to be taken into account.
The maximum penalty for those offences is imprisonment for 25 years. There is no applicable standard non-parole period because the respondent was under 18 years of age at the time of the commission of the offence (s 54D(3) of the Crimes (Sentencing Procedure) Act 1999).
The Crown contends that the finding by his Honour that these offences were "in" (or "at") the lower end of objective seriousness was erroneous having regard to: the nature of the acts involved, the relative ages of the respondent and the complainant, the age of the complainant by reference to the range included in the section (he being seven years at the time of these offences and the section applying to children under ten), and what the Crown contends was the high degree of sexual exploitation of the complainant.
As to the last, it is submitted that the respondent knew his conduct was wrong and took (as he conceded) advantage of the complainant's trust and naivety sexually to violate a seven year old child who was unaware of the wrongful and aberrant nature of the misconduct. Reference is made by the Crown to R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [25]; MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93 at [22]; and R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152 at [36]-[37].
Having regard to his Honour's indication that a 35% discount should be allowed, the sentence prior to such a discount for count 6 was about two years and six months and for count 7 was about one year and eight months.
The Crown submits that the youth and immaturity of the offender will be afforded less relative weight where the offender conducts himself or herself as an adult and commits an offence of significant gravity, having regard to the closeness of the offender to the age of maturity (citing KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [26]; IE v R [2008] NSWCCA 70; (2008) 183 A Crim R 150 at [15]-[16]; MJ v R; CPD v R [2010] NSWCCA 52 at [37]-[38]).
It is submitted that since the count 6 and count 7 offences were adult offences committed when the respondent was 15 or 16 years of age and 17 years of age, respectively, the amelioration of the sentence in recognition of the respondent's youth should have been modest.
In this regard, the Crown notes that the count 6 offence was not an isolated instance - the respondent had made the complainant perform oral sex on him regularly during the period April 2003 to April 2004 - and it represented a significant escalation of the sexual abuse by the respondent. While the Crown does not submit that this consideration leads to an increase in the indicative sentence for count 6, it does submit that the respondent was not to be sentenced with the lenience that might otherwise be permitted for an isolated instance of such offending.
Pausing there, his Honour expressly noted that the count 6 offence was not an isolated offence and there is no indication that his Honour sentenced more leniently due to any misapprehension that this was an isolated offence.
As to count 7, the Crown acknowledges that this was an attempt to effect intercourse rather than a completed intercourse offence; therefore questions as to what would have happened had it had been successful did not arise. The Crown did not on appeal seek to agitate an issue raised at [45] in its written submissions (to the effect that the respondent had ceased the offending conduct only after the complainant had begun to resist his requests to acquiesce in the offending conduct). It does, however, submit that, in the circumstances, any moderation of the indicated sentence for count 7 (on the basis that the respondent had voluntarily ceased offending) ought to have been less because of the frequency with which the respondent had sought to persuade the complainant to submit to such conduct between the commission of the sixth and seventh offences.
In circumstances where there was no apparent leniency extended relative to offence 6 based on any misapprehension that it was an isolated offence, the suggestion that less weight should have been given to the voluntary cessation of the count 7 offence because of earlier attempts to persuade the complainant to participate in sexual activity is not persuasive. The count 7 offence was an isolated incident and his Honour did not err in giving weight to the fact that the respondent voluntarily desisted from pursuing the attempted anal intercourse when he was unable to achieve penetration. The amount of weight to be given for the voluntary cessation of the conduct at that time, as opposed to the voluntary cessation of all sexual misconduct after that incident, was a matter within his Honour's discretion. No error has been shown on that aspect of the sentencing.
As to the adequacy of the indicated sentences for counts 6 and 7 more generally, that will be considered in the context of grounds 4 and 10 below.

[8]

Ground 4 - Manifestly inadequate aggregate sentences for counts 6 and 7

In ground 4, the Crown contends that his Honour erred by imposing an aggregate sentence for the charges in sequence 20 (count 6) and sequence 16 (count 7) that is manifestly inadequate.
The Crown repeats the submissions made in relation to grounds 2 and 3 and places emphasis on the fact that offending conduct (which commenced with fondling and escalated to masturbation, oral sex and a single attempt at anal penetration, ceasing the day after the respondent's seventeenth birthday), involved the sexual abuse of a child who was five or six years old at its commencement. Emphasis is also placed on the regularity of the abuse (various forms of indecent assault on an approximately fortnightly to monthly basis between 2001 and 2003; oral sex between April 2003 and April 2004) before the attempted penile/anal intercourse when the complainant was eight or nine years old.
It is submitted that the sentence was manifestly inadequate having regard to the totality of the criminality for which the respondent was to be sentenced in relation to all of the subject offences, the applicable maximum penalties, the appropriate discount of 25% for the pleas of guilty, the remorse and the other subjective circumstances of the respondent.
The respondent submits that all the offences were far short of the upper range. He emphasises that none was accompanied by any physical force, threat or coercive pressure. His Honour accepted those propositions. Insofar as the respondent submits that there was not even the more subtle pressure such as friendship or favours possibly to be withheld if there were no compliance, it must also be remembered that the respondent acknowledged having taken advantage of the friendship with the complainant in order to commit the offences and that it was an agreed fact that the respondent had encouraged the complainant and the complainant felt pressured to accede to his requests.
While the respondent accepts that he was considerably older than the relatively young complainant, he points out that he was nevertheless not an adult. It is submitted that, in the context of longstanding friendship and "childish play" between the two boys, the respondent would not have been perceived by the complainant as an adult. His Honour, however, did not accept the submission that the respondent would have seen the complainant as of equal age. It is further submitted that the "epiphany" that the respondent says led to the termination of the sexual conduct was 'the sudden apparition of mature consciousness, showing clearly that what preceded it belonged to the realm of childhood'. That proposition ignores the finding by his Honour that the respondent knew that his conduct was seriously wrong, knowledge the respondent acknowledged by his pleas of guilty. Were the situation otherwise, and the respondent did not know the serious nature of his wrongdoing, the defence provided by the doli incapax presumption was available to him.
It is submitted by the respondent that to the extent that the complainant's age affects the position of the offences in the range of seriousness, then as the respondent's age increased the position of the offences in the range would reduce. It is further submitted that all the offences occurred in the context of a pattern of conduct established early "to which no doubt both parties became to a degree habituated". With respect, that simply highlights the manipulation and the degree of sexual exploitation of the young complainant by the respondent.
The respondent argues that the transient nature and quick desistance in the act which was the subject of count 7 places that offence near the bottom of the range.
Reliance is placed on R v Burns [2007] NSWCCA 228 (at [27]) where the voluntary cessation of criminal activity was recognised as a significant factor to be taken into account by a sentencing tribunal. It is also noted that the law places a very high value on the rehabilitation of offenders referring to R v Blackman and Walters [2001] NSWCCA 121 at [44].
In summary, the respondent submits that there are an unusual number of strong mitigating factors in the case: the mentality and incomplete development of an adolescent child; the spontaneous and voluntary repudiation of the activity; the exemplary rehabilitation achieved; and the profound remorse and concern for the complainant upon being contacted many years later. Taking those matters into account, the respondent argues that it could not be said that any of the sentences imposed was manifestly inadequate.
In JM v R, the Court noted (at [40]) that a principle focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved (referring to R v Brown at [37]; R v Rae at [42]-[46], [62], [69]).
The Crown put forward submissions on sentence before the sentencing judge, the substance of which it is not necessary to repeat here. Suffice it to note that the Crown submitted that each of the sexual intercourse offences fell around the midpoint of objective seriousness for that offence.
It was submitted by the Crown that the offending (involving offences on numerous separate occasions over a period of six years), required some degree of accumulation.
The Crown submitted that a suspended sentence was not appropriate in circumstances where the offences in counts 6 and 7 were committed when the offender was 15-17 years of age and considerations in relation to the offender's youth diminished in importance.
For the reasons set out in relation to ground 10, this ground is made out.

[10]

Ground 9 - Manifest inadequacy of individual bonds for counts 1-5

Ground 9 contends that by imposing a sentence equivalent to a 5 year bond in relation to each of the respective offences in counts 1-5, each was manifestly inadequate having regard to the criminality for which the respondent was to be sentenced, the applicable maximum sentences, and the appropriate discounts of 25% for the pleas of guilty and the subjective circumstances of the respondent including his age.
The Crown accepts that none of the offences comprising counts 1-5 was a serious children's indictable offence and thus they would not have had to be dealt with according to law, if sentence had been imposed before the respondent turned 21 (s 28(1) Children (Criminal Proceedings) Act 1987), and if the respondent had not also faced two serious children's indictable offences as defined by the same Act (s 3).
Before the sentencing judge, the Crown submitted that, given the age of the complainant and the fact that these were not isolated incidents, the first chronological act for sentence for aggravated indecent assault in which the respondent masturbated the complainant (it being representative of regular ongoing conduct which was of an identical nature) would fall above the midpoint of objective seriousness for that offence. As to the three other offences under s 61O(2) of the Crimes Act involving exposing his penis to the complainant, inciting the complainant to masturbate him, and masturbating to the point of ejaculation, it was again submitted that those offences fell above the midpoint of objective seriousness.
The respondent maintained that these were in the nature of childish exploration of sexual matters, and that the offences fell towards if not at the lowest end of any notional range of objective gravity.
That submission, and the sentencing judge's assessment of the gravity of the offences as falling in the low range of seriousness, overlooks the degree of exploitation inherent in these offences.
The victim was a particularly vulnerable child. He was among the youngest, or the youngest, of the group of neighbourhood children who played together in the street. He was an isolated child, in that his parents were fully occupied in caring for a seriously disabled daughter. It is reasonable to infer that the victim was not as closely supervised as other children may have been, because of his parents' understandable distraction.
That it was this child, vulnerable because of his family circumstances, who was removed from the relative safety of the public street to a secluded area of shrubbery to be sexually assaulted is significant, and heightens the gravity of these offences to some degree.
The respondent's contention on appeal (accepted by the sentencing judge in relation to the earliest offences) that his conduct was no more than sexual exploration is contradicted by the deliberation with which the victim was taken by the respondent to a secluded area, away from both the view of others, and from the prospect of others either intervening to stop the assaults, or reporting the conduct. It is further contradicted by the significant age difference between the respondent and his victim - 8 years and 3 months - and by the respondent's repeated insistence to the child that he promise not to tell anyone about what the respondent was doing to him. The offences were not limited to a short period of time, consistent with exploratory behaviour, but continued on, frequently repeated, for a period of years.
As noted, the respondent's pleas of guilty acknowledged that he was not able to rely upon the doli incapax presumption, and thus that he was aware that what he was doing to his victim was seriously wrong, and not merely naughty.
The nature of the sexual acts were serious, in that they initially involved the exposure of a very young child to the touching of his genitals by the respondent in circumstances where the respondent exposed his own erect penis. The child was soon caused to participate in this sexual conduct, with the respondent instructing the child as to how to fondle the penis of the respondent. The conduct further escalated with the respondent masturbating and ejaculating in front of the child. (Subsequently the respondent involved the child in fellatio, with the final offence being one where the respondent attempted to thrust his penis into his victim's anus in the child's home swimming pool. The gravity of these later two offences is relevant to ground 10.)
The repetitive nature of the assaults, the frequency of them, and their steadily escalating seriousness were all matters which should have led the sentencing judge to conclude that these were offences which were considerably more serious than offences which might fall at or towards the lowest end of any notional scale of objective gravity.
The complainant was a particularly vulnerable child who was much younger than the respondent. The respondent introduced the child to sexual activity which increased in seriousness over time, habituated the child into a course of ongoing sexual activity, prevailed upon his victim not to tell anyone about the abuse, and relied upon his neighbourly relationship and greater age to ensure the boy's silence.
The respondent's submission that the boys regarded each other as contemporaries was rejected by the sentencing judge.
Whilst it is correct that the earlier offences, being counts 1 to 5, were - if charged at or about the time of the offending conduct - offences amenable to the jurisdiction of the Children's Court, that is so only in a technical sense. The reality of the respondent's situation is that, even had he been charged prior to his 21st birthday, the fact that he faced additional charges which were serious children's indictable offences meant that the jurisdiction of the lower court was simply not available to him. Being dealt with at law was the only realistic outcome for the respondent.
This was gravely serious criminal conduct which could not be adequately reflected by the sentence imposed by his Honour, a single s 9 bond, even absent the errors attendant upon the sentencing process that saw five offences penalised by one sentence.
The Crown's complaint that the sentence imposed upon the respondent for the first five of the offences charged against him is manifestly inadequate is made out.

[11]

Ground 10 - Overall manifest inadequacy

Ground 10 asserts overall manifest inadequacy of the sentence disposition.
As is well recognised, a claim of manifest inadequacy requires the party advancing that complaint to establish that the sentences imposed were unreasonable or plainly unjust in a sentencing environment where there is no single "correct" sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321 at 325 [6]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]; Hili v The Queen [2010] HCA 45, (2010) 242 CLR 520 at 538 [59].
The Crown relies upon the arguments it advanced in support of ground 9 in support of this ground. Ground 9 has been made out.
His Honour's assessment of the objective gravity of the offences reflected by counts 1 - 5 as towards the lower end of the range of objective gravity was in error, and failed to give sufficient weight to the degree of exploitation and manipulation involved in these offences.
His Honour reached a similar conclusion as to the objective gravity of the s 66A and s 66B offences. That conclusion also failed to give adequate weight to the circumstances surrounding the commission of these offences, including that the respondent's crimes were committed at the child's home, by a trusted neighbour and playmate, and were inherently highly exploitative. Count 6, the s 66A offence, was not isolated and, in the circumstances of this crime, it represented a serious breach of the provision, an offence which carries a maximum sentence of 25 years' imprisonment.
It is acknowledged that the sentencing task faced by his Honour was a particularly difficult one. The sentences imposed upon the respondent had to be capable of comprehending the significant criminality of the respondent's conduct, in circumstances where there had been a lengthy delay between the commission of the offences and the prosecution of them.
Also because of the delay, the respondent had had the opportunity to pursue his education and career objectives, and to establish himself as a responsible and law abiding member of the community. It could readily be concluded that the respondent had substantially rehabilitated himself in the years that had passed between the commission of the offences and the date of sentencing.
Although it could not be said that the respondent had spent those years anxiously fearing the "knock on the door" referred to in R v Holyoak (1995) 82 A Crim R 502 - to the contrary he had lived a full life without thought of his earlier crimes - the delay had permitted the respondent to demonstrate a capacity for a law abiding lifestyle, and thus to present a strong subjective case to the sentencing court.
Those were all features of the matter that his Honour had to take into account.
His Honour also had to have regard to sentencing principles, including questions of general deterrence - ordinarily high for offences of child sexual assault, but of lesser relevance where the offender was a child at the time, and of totality.
Here, although the respondent was a child when he committed these crimes, the requirement for the sentences to reflect the need for general deterrence was not thereby rendered entirely nugatory (R v Bus unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Grove J, Allen J, 3 November 1995). There had also to be regard to questions of accumulation and concurrency, with a need here for at least some degree of accumulation of the sentences imposed, subject to the principle of totality, to reflect the number of offences, their ongoing nature, and the distinct conduct charged. Questions of accumulation are not irrelevant where an aggregate sentence is imposed (R v Grover; Grover v R [2013] NSWCCA 149).
His Honour was plainly concerned that the imposition of a custodial sentence might "fracture" the respondent's rehabilitation, and he seems to have sought to structure a sentence which would avoid that outcome.
In taking that approach the sentencing judge wrongly allowed the respondent's undoubtedly strong subjective case to so dominate consideration of matters relevant to sentence, that it became determinative of the sentences imposed.
As discussed in relation to ground 9, the sentencing judge concluded that the respondent's earlier crimes fell toward the lower end of the range of objective gravity. He reached the same conclusions as to the intercourse and attempt intercourse offences. His Honour referred to the offences more generally as "serious criminal conduct". It is difficult to reconcile that latter assessment with the sentences imposed by his Honour on the respondent.
The decision to suspend the sentences pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 further reduced the capacity of the sentence to reflect the serious nature of the offending conduct.
As was stated by Howie J in R v Zamagias [2002] NSWCCA 17 at [28]: "… the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment" (references omitted).
A suspended sentence necessarily reflects a significant degree of leniency. Whilst such a sentence is a species of custodial sentence, it cannot be ignored that it is served entirely in the community, and represents a much reduced impost on an individual's liberty than does a sentence which is not suspended.
The many and, to a degree, antagonistic, purposes of sentencing must be borne firmly in mind. Whilst s 3A of the Crimes (Sentencing Procedure) Act 1999 requires a sentencing court to promote an offender's rehabilitation (s 3A(d)), and rehabilitation receives particular emphasis in the case of a child offender, that does not obviate the need for the sentence imposed to adequately punish an offender (s 3A(a)), to make the offender accountable for his or her actions (s 3A(e)) and, of particular relevance here, to denounce the offender's conduct (s 3A(f)) and to recognise the harm done to the victim of the crime and to the community (s 3A(g)).
Whilst the suspension of the sentences imposed upon the respondent in relation to the s 66A and s 66B offences was one which could promote the respondent's rehabilitation, it could not serve the purposes of denunciation of the crimes or of recognising the great harm these crimes caused.
Both the terms and the suspension of the sentences for the later two offences were inadequate to reflect the gravity of the crimes, and to comply with the broader purposes of sentencing.
We have concluded that the sentences imposed upon the respondent were insufficient to mark the gravity of the offences. The sentences were plainly unjust.
Ground 10 has been made out.

[12]

Residual discretion

In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, the High Court considered the residual discretion to dismiss a Crown appeal notwithstanding that the sentence appealed against is shown to be erroneously lenient and said (at [24]) that, where an appeal is allowed, the powers to vary the sentence and to impose such sentence as seems proper are engaged; those powers having to be read with the general provisions of the sentencing legislation which constrain and inform their exercise.
The High Court noted at [36] that: "A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion". [Footnotes omitted.]
In the present case, the sentence was imposed on 23 July 2014. The respondent became aware by 10 August 2014 of the Crown appeal. He gave evidence orally at the appeal of the effect on him (and on his family) of the notification of the Crown's appeal. His Counsel nevertheless submitted that the effect of re-sentencing on the progress towards rehabilitation has not changed from the material that was before the sentencing judge.
The respondent gave oral evidence. He noted that the matter had been ongoing and said that he is having ongoing counselling sessions with a psychologist (now in the maintenance phase to which Ms Wyzenbeek had referred in her treatment update report). The respondent has current employment although his employer is not aware of the proceedings. It is the respondent's belief that he would have to leave his job if he receives a custodial sentence. The respondent lives with his girlfriend in a de facto marriage and he referred in his evidence to his sadness at the effect of the proceedings on his partner. The respondent has counselling once a month at a one hour session; and he sees his probation officer once a fortnight. He indicated that it has been a struggle to operate as a "normal person", with the Crown appeal constantly at the back of his mind.
The respondent deposed that his reaction to the notice of appeal had been one of devastation. He had broken down and cried and had been inconsolable not simply for himself but for his family. He described his distress on learning of the Crown's appeal as "gut wrenching". He referred to it as "a roller coaster and a gut-wrenching feeling" when going to the Court. It was something that he could not put out of his mind. The respondent deposed that he believes that if the Court did impose a custodial sentence the ramifications for him and his family would be devastating. He said that the effect of the outstanding Crown appeal on him is something that he thinks about every few hours.
While the Crown maintains that this is not a matter where it is appropriate for the Court to exercise its residual discretion not to intervene, consistent with its obligations to assist the Court the Crown noted a number of relevant factors might be taken into account in that regard. Senior Counsel for the Crown pointed to the impact on the respondent of the fact of the Crown appeal; the likelihood of an adverse effect upon the respondent's employment were he to be re-sentenced; the fact that the range of available sentencing options is relevantly confined; the possibility that imprisonment would fracture the respondent's rehabilitation; and that the respondent is on the evidence of an exemplary character.
In the present case, there have been errors made in the suspension of aggregate sentences and in the imposition of a single good behaviour bond for the five less serious offences. The sentences imposed are manifestly inadequate.
That said, the sentencing exercise was a difficult one and the function to be served by the determination of a Crown appeal can be met by the articulation of the errors in sentencing and the manifest inadequacy of the sentences imposed.
It is clear on the basis of the respondent's oral evidence before the Court that he has suffered significant anxiety and distress since receiving notification of the Crown's appeal in August 2014. Because the appeal was heard late in the year, just prior to the commencement of the Christmas - New Year vacation period, and a decision could not be reached prior to the end of term, the respondent has endured further anxiety as he waited to learn of his fate.
Additionally, the rehabilitation that the respondent has achieved will inevitably be adversely affected if a custodial sentence is now imposed. His employment is likely to be lost to him, and his relationships with others potentially damaged. Those features of the matter, coupled with the issue of delay and the impact of it upon the respondent, justify the Court in declining to intervene to do other than correct the technical errors made by the sentencing judge, errors which cannot be permitted to stand.
Although we have concluded that the sentences imposed by his Honour are manifestly inadequate, the Court's role in providing principles for the governance and guidance of sentencing courts can be met by these reasons.
It is sufficient in all of the circumstances to correct what might be regarded as the more technical errors attaching to the sentences imposed, whilst maintaining the general intention of the sentencing judge to impose supervised bonds, together with suspended sentences for offences 6 and 7 of a total period of 2 years (comprised of sentences of 19 months and 13 months imprisonment respectively).
It is noted that the sentencing judge intended to impose some level of accumulation when structuring the sentences for these last two offences, it being impossible for the sentence imposed in relation to one offence to wholly comprehend the criminality of the other offence (Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, at [27]). His Honour intended there to be an overall effective sentence for those two offences of two years imprisonment. His adoption of an aggregate sentence which he purported to suspend defeated that intention.
In re-sentencing the respondent to correct the procedural errors, we have given effect to his Honour's intended sentence, having regard to the time already served, a period of about six months. That has necessitated some adjustment of the periods of imprisonment announced by his Honour, so that the overall period of imprisonment, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, and having regard to the six months served to date, is that of two years.
If sentencing the respondent at first instance, and taking into account his significant subjective case, an overall sentence involving imprisonment for something in the order of three years, and without the benefit of suspension, would have been appropriate.

[13]

Orders

The orders that should be made are as follows. 1. The Crown's appeal is allowed. 2. The sentences imposed by Charteris DCJ on 23 July 2014 are quashed and in lieu thereof, the respondent is sentenced as follows:
In relation to offences 1 to 5 (sequences 2, 3, 5, 17, and 19) inclusive and in respect of each of the five offences, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, order that the respondent enter into a good behaviour bond for a period of 4 years and 6 months from today, each with conditions that: (i) he appear before the Court if called upon to do so at any time during the currency of the bond; (ii) he be of good behaviour; (iii) he advise the Court of any change to his residential address within 7 days of such change; (iv) he accept the supervision and directions of the Probation and Parole Service during the term of the bond.
In relation to offence 6 (sequence 20), a sentence of 1 year and six months imprisonment, the execution of which is to be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, upon the respondent entering into a bond to be of good behaviour for a period of 1 year and 6 months, with the following conditions: (i) he appear before the Court if called upon to do so at any time during the currency of the bond; (ii) he be of good behaviour; (iii) he advise the Court of any change to his residential address within 7 days of such change; (iv) he accept the supervision and directions of the Probation and Parole Service during the term of the bond.
In relation to offence 7 (sequence 16), a sentence of seven months imprisonment, the execution of which is to be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, upon the respondent entering into a bond to be of good behaviour for a period of 7 months, with the following conditions: (i) he appear before the Court if called upon to do so at any time during the currency of the bond; (ii) he be of good behaviour; (iii) he advise the Court of any change to his residential address within 7 days of such change; (iv) he accept the supervision and directions of the Probation and Parole Service during the term of the bond.
R A HULME J: This was an unusual case that presented a level of difficulty in exercising the sentencing discretion well beyond that encountered in the vast majority of cases. Indeed, on a number of occasions the learned judge, who has very lengthy experience with the criminal law, remarked that he found this to be so. Whether to suspend the execution of the sentences of imprisonment for the s 66A and s 66B offences he said was "the most difficult decision in this case".
I agree with Ward JA and Wilson J about the respondent having presented a strong subjective case. Regrettably, I cannot agree that the judge allowed it to dominate consideration of other matters to the point where it became determinative of the sentences imposed. The sentencing remarks, read as a whole, demonstrate that his Honour gave most careful and anxious consideration to all relevant matters. In particular, he mentioned twice that he was mindful of the emotional and psychological impact the offences had upon the complainant.
There are some aspects of the description of the objective seriousness of the offences in the joint judgment with which I am unable to agree. The complainant is described as "particularly vulnerable" because of his family circumstances. But the offences occurred in the context of him being a young child playing with children in the neighbourhood away from direct adult oversight. He was just as vulnerable in such circumstances as any other child the same age.
The fact that the offences occurred in a "secluded area", away from the view of others who might intervene or report the conduct, does not render them more serious offences of the child sexual assault genre; it is difficult to envisage such offences occurring in "the relative safety of [a] public street".
Matters such as this do not contradict the claim (which was accepted by the judge) that the offending had its genesis in sexual exploration. The respondent conceded in his evidence that it progressed to becoming a matter of gratification and he readily conceded he was aware that his conduct was wrong. On the appeal it was not submitted to the contrary and moreover, the Crown accepted that the respondent did not understand that his conduct was criminal.
This was a case of repeated offending by one child against another with an age differential of about eight years. Once that is taken into account, as it was, it is in the nature of double counting to regard the objective seriousness of the offences as being aggravated by characterising them as "highly exploitative". The written submissions for the Crown included the expression "high degree of sexual exploitation" but senior counsel was careful to qualify this at the hearing of the appeal by contrasting the position against similar offences committed by an adult and inviting the Court to have full regard to the subjective circumstances of the respondent (i.e. his age).
In my view, the imposition of good behaviour bonds for the three incidents involving indecent assaults and acts of indecency that occurred 11 years prior to sentence and when the complainant was aged 5 or 6 and the respondent 13 to 15 was open to the sentencing judge. If the respondent had been sentenced for such offences soon after they occurred, that is while he was still a child, I think it most unlikely that he would have been incarcerated. After many years of delay, rehabilitation, established good character, and a level of demonstrated remorse rarely encountered, I do not see that the outcome now ought to have been more severe.
The offences contrary to s 66A and s 66B were clearly more serious examples of sexual offending against a young child. With great respect to the judge, I am doubtful about the correctness of his characterisation of the objective seriousness of these two offences as "at", or "in", the lower end of the range. However, whilst the objective seriousness of an offence is normally of central importance, there were other matters of significance amongst the congeries of factors to be taken into account in the assessment of sentence.
I am of the view that in this case the general principle that in sentencing a juvenile offender there should be more emphasis upon rehabilitation than general deterrence and retribution is not diluted because the respondent had conducted himself in the way an adult might conduct himself: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 576 at [25]. When viewed as a whole, it is open to regard the offending here as being markedly characterised by adolescent immaturity. And it is not the case that the offences were committed when the respondent was close to being aged 18: the first five occurred when he was aged 13-15; the next when he was aged 15-16; and the last the day after his 17th birthday.
As is apparent from the sentencing remarks, the judge had regard to all relevant matters and considered the question of suspension most anxiously. Sentences of full-time imprisonment could well have been imposed and, subject to the period, would not necessarily have been regarded as excessive. However, having regard to all of the circumstances, I am not of the view that the suspended sentences of imprisonment that were imposed can be characterised as manifestly inadequate.
Save for the need to intervene in order to correct the technical errors of imposing a single good behaviour bond for multiple offences and in imposing an aggregate suspended sentence I would otherwise have favoured dismissal of the appeal.
I agree with the proposed re-sentencing in relation to the first five offences but I take a different view, with respect, as to how the respondent should be re-sentenced to overcome the error in relation to the aggregate suspended sentence. Under their Honours' proposal, a correct application of the totality principle in the event of breach of the suspended sentence bonds would see the respondent being subject to a longer overall sentence than is intended.
Sentences should be determined in accordance with Pearce v The Queen [1998] HCA 57; 194 CLR 610; that is, individual sentences should first be determined before consideration is given to the question of totality. The majority judgment accepts, as I do, that the totality principle would require a measure of accumulation of the two sentences. However, in the context of suspended sentences, totality is something that only arises for consideration in the event there is a breach resulting in the suspension being revoked and the sentences activated.
The respondent should be given credit for the 6 months he has been the subject of a suspended sentence good behaviour bond by deducting that amount from the individual sentences. That is, the sentence for the sixth offence should be one of 13 months and for the seventh offence it should be 7 months.

Regina v RM

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