The overall sentence is unreasonable and/or plainly unjust.
48In support of this single ground of appeal counsel for the applicant advanced three broad propositions, namely:
(i)the extent to which a number of the offences shared common features indicated that a greater degree of concurrency of the sentences would have been appropriate in order to properly reflect the totality of the criminality involved;
(ii)in assessing the totality of the criminality involved, it was relevant that the offences were committed as part of the one course of conduct, albeit comprising several distinct episodes;
(iii)the overall sentence was of such a magnitude as to have a crushing effect upon the applicant's hopes of rehabilitation, and his prospects of reform.
49In developing the first of these submissions, counsel pointed out the following:
(i) in respect of the offences of aggravated sexual assault (counts 1, 2, 3, 14 and 15), aggravated sexual assault in company (counts 4, 5 and 6) and specially aggravated detain for advantage (count 10) the circumstance of aggravation was the same, namely, the infliction of actual bodily harm;
(ii) in respect of each of counts 1, 5 and 15, the harm which was relied upon was that caused to victim one before those particular offences were committed;
(iii) in respect of counts 2, 3, 4, 6, 10 and 15, the harm relied upon was that caused to the victim five, being harm that was:
(a) caused during the act constituting count 2;
(b) caused immediately before the act constituting count 3;
(c) caused during the act constituting count 10; and
(d) aggravated during the acts constituting counts 4, 6 and 15.
50There were undoubtedly some common features arising from these circumstances. At the same, it must be recognised that the actions of the applicant, although in one sense committed in the one episode of conduct, manifested themselves in quite separate and distinct instances of offending. What is also particularly significant in terms of the applicant's sexual offending against victim five, is that having perpetrated a number of violent sexual acts upon her, the applicant left the bedroom, only to return and commit a further three quite separate and distinct offences upon that same victim.
51Moreover, and even accepting the proposition that the offences were committed in the one course of conduct, each offence necessarily contributed to the total criminality involved. His Honour was required to take care so as to ensure that the overall effective sentence was appropriate having regard to the numerous offences which were committed in that course of conduct (see R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 at 340; [57] per Sperling J). In my view, it is clear from his Honour's reasons that such an approach was taken. Matters of accumulation are necessarily matters within the discretion of the sentencing judge. In my view, there is no indication that his Honour's sentencing discretion miscarried in any way.
52Counsel went to some lengths to emphasise that the applicant's offending occurred over a period of approximately one hour. He submitted that this was a circumstance which supported the conclusion that the sentence imposed was unreasonable and/or plainly unjust. In my view, that submission should be rejected. In assessing the circumstances of the applicant's offending, and its objective seriousness, the primary focus must necessarily be upon what the applicant did in terms of offending, rather than upon the period of time over which that offending occurred. His offending involved the commission of sixteen separate offences. It exhibited a high degree of criminality, for which a significant penalty was warranted. In my view, the seriousness of such offending is not in any way moderated by the time over which it occurred. The fact of the matter is that it was a period of time which was sufficient to allow the applicant to commit multiple offences.
53In one sense, and for good reason, his Honour's reasons centred upon the offences of indecent assault, aggravated sexual assault and aggravated sexual assault in company which were perpetrated upon victim five. However, it is relevant to bear in mind that the applicant's commission of those offences had been immediately preceded by the commission of a number of other serious offences. The totality of the applicant's offending covered a wide range criminal conduct for which the legislature has seen fit to impose significant penalties and, in some cases, lengthy standard non-parole periods. In particular:
(i) each of counts 4, 5 and 6 (being offences of aggravated sexual assault in company pursuant to s. 61JA of the Crimes Act) carried a maximum penalty of life imprisonment, with a standard non-parole period of 15 years imprisonment;
(ii) each of counts 1, 2, 3, 14 and 15 (being offences of aggravated sexual assault pursuant to s. 61J of the Crimes Act) carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years imprisonment;
(iii) count 10 (being an offence of specially aggravated detaining for advantage carried a maximum penalty of 25 years imprisonment;
(v) each of counts 11, 12, 13 and 16 (being offences of robbery in company pursuant to s. 97(1) of the Crimes Act) carried a maximum penalty of 20 years imprisonment; and
(iv) count 9 (being an offence of aggravated entry of a dwelling house with intent to commit a serious indictable offence pursuant to s. 111(2) of the Crimes Act) carried a maximum penalty of 14 years imprisonment.
54In each of those instances of offending where a standard non-parole period was prescribed (being a period of 15 years imprisonment in three instances and a period of 10 years imprisonment in five others) his Honour was at liberty to use that standard non-parole period as a guide post in the sentencing process (see generally Muldrock v R (2011 244 CLR 120). His Honour found that the applicant's offending was in the upper range of the mid range of seriousness, and no issue has been taken by the applicant with that finding. The commission of multiple offences for which significant standard non-parole periods applied, is a factor which, in the circumstances of this case, tends against the proposition that the overall sentence imposed by his Honour was one which was unreasonable and/or plainly unjust.
55In support of the submission that the sentence amounted to a "crushing" one, counsel for the applicant relied upon the judgement of this court in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 where it was observed (at 164; [17]):
" ... an extremely long total sentence may be "crushing" upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there maybe of rehabilitation and reform."
56It is important to bear in mind that such a statement was accompanied by the following observation:
"Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint."
57Any assessment of whether or not a sentence is properly described as "crushing" must have regard to a number of circumstances. Those circumstances include the maximum penalties, any standard non-parole periods, the objective and subjective factors, and the application of principles of accumulation, concurrency and totality (see Paxton v R [2011] NSWCCA 242 esp. at [215] per Johnson J with whom Tobias AJA and Hall J agreed).
58As I have pointed out, 8 of the 16 offences committed by the applicant carried a standard non-parole period. Even in respect of the remaining 8 offences for which no standard non-parole period was prescribed, the maximum penalties set by the legislature were nevertheless significant. Those offences were committed by the applicant, in the capacity of what his Honour described as "the ring leader", only a matter of months following the applicant's release on parole in respect of a previous offence of aggravated sexual assault. The objective seriousness of his offending towards the five victims was assessed by the sentencing judge, appropriately in my view, as falling at the upper end of the mid range. Despite the favourable impression formed by the sentencing judge following the offender's evidence, the medical evidence expressed a poor prognosis and provided no support for a favourable finding in terms of the applicant's prospects of rehabilitation.
59Taking all of these factors into consideration, I do not regard the overall sentence imposed as one which is appropriately described as "crushing", in the sense in which that term has previously been used by this Court. The various circumstances to which I have referred disentitled the applicant to the benefit of any element of mercy of the kind to which the court referred in MAK.
60Further, in determining an appropriate sentence for the applicant's offending, there was a clear requirement on the part of the sentencing judge to give appropriate weight to the need to protect the community. One of the aggravating factors to which his Honour justifiably had regard was that the offences were committed in the home of the victims. In R v Hayes [1984] 1 NSWLR 740 Street CJ, in the context of observations regarding the increase in the commission of the offence of break, enter and steal observed (at 742):
"The invasion of people's homes and the plundering of their property is a social evil from which the community looks for protection to the law enforcement agencies and the criminal courts".
61In the same case, Lee J said (at 744):
"The police and the criminal courts are all that a citizen has to look to protect him against the activities of criminals, and the courts have a duty to make clear that they recognise that, so far as our society is concerned, their prime responsibility is the protection of the community. (The sentencing judge's) remarks on sentence make quite clear that his Honour was not in doubt as to the court's responsibility. The community has the right to expect that the courts will use against crime the weapons which it has at its disposal, and that it will take stern measures in the face of repeated defiant criminal conduct involving breaking and entering."
62Notwithstanding the period which has elapsed since those observations were made, and even though they were made in the context of a particular type of offending which was seen at the time to be increasing, they nevertheless remain apposite, particularly in the circumstances of the present case. The actions of the appellant and his co-offenders in forcibly entering the premises amounted to an invasion of the home, and an invasion of the privacy, of the victims. That invasion was followed by what can only be described as serious criminal conduct.
63The sentencing judge properly pointed out that members of the community are entitled to assume that they will be safe in the confines of their own home. Persons whose criminal offending interferes with those justifiable assumptions of safety must expect the imposition of condign punishment. That is particularly so in circumstances such as the present, where the initial invasion of the premises by the applicant, who had only recently been released on parole, was followed by the commission of multiple offences of violence perpetrated against five victims, and where the commission of some of those offences involved conduct of the most depraved, immoral and degrading nature imaginable.
64For all of these reasons, the ground of appeal has not been made out.