Delay
31 It was submitted by the applicant that he was disadvantaged by the delay in sentencing (eg the earliest offences were over two years before the applicant was charged) in that during the period of delay, he was in custody for other unrelated matters (9 September 2001 - 8 June 2002, 30 August 2003 - 29 February 2004) and thus lost the benefit of the principle of totality. Had the applicant been charged more promptly, her Honour would have had greater regard for those other periods of imprisonment.
32 Her Honour specifically referred to the delay and the reasons for it. It was only after DNA analyses had taken place that the applicant was identified as the perpetrator of the earlier offences. In that regard the delay was brought about by the applicant's own conduct in remaining silent in respect of those offences. In circumstances where an offender remains silent hoping that the offences will not be discovered, he or she cannot expect a reduced sentence in the absence of demonstrated prejudice.
33 A similar circumstance was considered by McColl JA in R v Kay [2004] NSWCCA 130:
"[29] In the present case the applicant's guilt was only determined when the DNA samples taken at the scene of the October 2001 offence were connected to DNA samples given by the applicant in March 2002. There was then a period of some nine months or so in the analysis of the March 2002 sample."
[30] During this period the applicant was not suffering any uncertainty as to what might happen to him - other than, it might be surmised, uncertainty as to whether he would be caught and charged in relation to the October 2001 offence.
[31] After his arrest on 6 April 2003 he declined to answer any questions in relation to the allegations. He did not enter a plea of guilty until the third occasion on which he came before the Local Court.
[32] This is not, therefore, a case where, to paraphrase Wood J in Abookahled , there is reason to suppose that the October 2001 offence should have been dealt with earlier and that during the period of delay the applicant suffered a period of uncertainty as to his fate. It is not a case where the operation of the criminal justice system prevented the October 2001 offence from being dealt with in connection with the January 2002 proceedings. At that stage the applicant's DNA sample had not been obtained. It is true that there was a delay in analysing the sample, but there was no evidence that the applicant was in a state of suspense pending the analysis.
[33] Rather, the applicant was content to remain silent, hoping, presumably, that his association with the October 2001 offence would not be detected. Having remained silent, he now argues that he ought, in effect, be rewarded for his successful concealment of his commission of the offence by a substantially reduced or even deferred sentence. The authorities make plain that the significance of the delay will turn on the circumstances of each case. In my view, the circumstances of this case do not attract the Todd principle."
34 In relation to the principle of totality, it is not without significance that the offences for which the applicant was sentenced by her Honour both predated and post-dated the first period of imprisonment (9 September 2001 - 8 June 2002). This, it seems to me, is an aggravating feature of the later offences, not a matter which ought properly be considered for the benefit of the applicant. In any event, her Honour had specific regard to the principle of totality and was well aware of the earlier periods of incarceration. It is for that reason that she chose 29 February 2004 as the start point for some of the sentences. No error in her Honour's treatment of the question of delay has been made out.