Singh v R

Court of Criminal Appeal (NSW)|2021-02-05|Before: Bathurst CJ, Beech-Jones J, Wilson J, Jones J

Solicitors: William O'Brien & Ross Hudson Solicitors (Applicant) Office of Director of Public Prosecutions (Crown) File Number(s): 2017/287236 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 5 July 2019 Before: Wass DCJ SC File Number(s): 2017/287236

Judgment

BATHURST CJ: I agree with the orders proposed by Beech-Jones J and with his Honour's reasons.
BEECH-JONES J: This is an application for leave to appeal from a lengthy aggregate sentence imposed for very serious sexual offences.

Although the sentencing judge specified an indicative non-parole period for count 1, this was not necessary as an offence under s 86(2) does not carry a standard non-parole period (Sentencing Procedure Act, s 54B(2)).
As I will explain, the respondent agreed that the sentencing judgment was affected by at least one error of the kind stated in House v R (1936) 55 CLR 499 at 504-505 ("House"). For the reasons set out below, I consider that concession was properly made. In particular, the error concerned the treatment by the sentencing judge of the offences on the Form 1s. Notwithstanding the conceded error, it should be noted that the sentencing judge undertook a difficult sentencing exercise with great care.
It follows from the finding of error that leave to appeal will be granted, and it is necessary to undertake the resentencing process (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; ("Kentwell")). However, for the reasons set out below, I would dismiss the appeal as I am satisfied that no lesser sentence is warranted in law and should have been passed (Criminal Appeal Act 1912, s 6(3)).
By operation of s 578A(2) of the Crimes Act 1900, the publication of the victim's name or any other information that might identify her is prohibited.

Agreed Facts

Tendered before the sentencing judge was an agreed statement of facts which the sentencing judge adopted. The following narrative is taken from the agreed facts. In light of the grounds of appeal, it is necessary to set them out in some detail. They are confronting.
At the time of the offending the applicant was 39 years of age and the victim was 22 years old. They were both studying at the same university. In 2017 they became housemates. The victim and a third housemate each had a bedroom while the applicant occupied the lounge room and slept on a bed next to the kitchen.
On the afternoon of 31 July 2017, the applicant and the victim were alone at their share home. At one point the victim went into her bedroom and saw the applicant's mobile phone on her desk. The applicant did not usually go into her room. She called out to him. The applicant stepped into the victim's bedroom and told her that "I have decided to kill myself. Before I do that, I want to make love to you". The victim told the applicant she would never consent.

Count 1: Detain for advantage, causing actual bodily harm

The applicant moved his right hand from behind his back and showed the victim a knife he had taken from the kitchen. The knife was about 20cm long. The victim was sitting at her desk. The applicant was standing about a metre away. He said, "It doesn't matter if you want it or not". The victim felt scared and asked, "Why are you doing this?"
The applicant ordered the victim to lie on the bed. The victim tried to unlock her mobile phone to call triple-0. The applicant poked the victim with the knife to the thigh, chest and upper arm about five or six times, telling her to put down the phone. The victim eventually did so. She yelled "help" two or three times.
The conduct of the applicant in brandishing a weapon to restrict the victim's movements and poking her with a knife constituted count 1 of the indictment (Crimes Act, s 86(2)(b)). As explained below, before the sentencing judge, there was an issue about the period of the detention the subject of this count.

Count 2: Reckless wounding

The applicant grabbed the victim by the arm with his left hand while holding the knife with his right hand. The victim used her hands to try to push the applicant away, however the applicant pushed her back and in doing so caused a wound to her right arm. The victim felt pain and saw blood coming through her shirt. The victim said, "What have you done?" The applicant pointed the bloodied knife towards the victim.
The applicant told the victim to lie on the bed. The victim said, "I can't, I need help" and "[t]here's lots of blood coming out. I've been stabbed." The applicant replied, "Yeah, I know, no, but go and lay down on the bed". The victim complied. The agreed facts record that the victim was in "discomfort" due to her injury and this position on the bed.
The applicant pointed the knife at the victim and told her not to move. He left the bedroom for a short time. He returned with a medical kit and told the victim to sit up. He removed the victim's shirt and tied a white shoelace tightly around her upper arm in an attempt to stop the bleeding. The applicant sat at the desk and used his phone to find information about how to treat the wound. He told the victim she needed to keep her arm above her heart. The victim tried to do this but was in too much pain. The applicant took a tube-shaped bandage from the medical kit and put it over the wound. He said, "Why did you make me do this? I didn't want to stab; I just wanted to do those things to you before I died."
The conduct of the applicant in stabbing the victim constituted count 2 on the indictment, specifically, wounding her and being reckless as to causing her actual bodily harm (Crimes Act, s 35(4)). The Crown contended that the detention the basis for count 1 continued through the course of the commission of count 2.

Form 1 offence attached to Count 3: Aggravated sexual assault

The applicant pulled off the victim's trousers, bra and underpants. Once she was naked, he lay on the single bed beside her. He put the knife on a towel hanger next to the bed. The applicant placed his arm over the victim and hugged her for several minutes. He then straddled her and kissed her on the mouth.
The applicant then performed oral sex on the victim. The applicant removed his own clothing and knelt between the victim's legs, telling her to give him a "hand job". Eventually the victim began to touch his penis. After a few minutes, the applicant told the victim he wanted them to perform oral sex on each other simultaneously.
The conduct of the applicant in performing oral sex on the victim while brandishing a knife constituted the offence on the Form 1 attached to count 3, namely aggravated sexual assault, with the circumstance of aggravation being the threat to inflict actual bodily harm with an offensive weapon (Crimes Act, s 61J(1), s 61J(2)(b)).

Count 3: Aggravated sexual assault

While the victim was lying on her back and the applicant was performing oral sex on her, the applicant put his penis into the victim's mouth. The applicant then stood and told the victim to move to the side of the bed with her head hanging over the edge. He stood in front of her, put his penis into her mouth and began to move. This conduct constituted the third count on the indictment, being another offence of aggravated sexual assault. After a while, he ejaculated in the victim's mouth. The agreed facts record that she had "no choice but to swallow".
The applicant directed the victim to lie back down on the bed. He lay beside her next to the wall and put his arm over her, covering them both with a blanket.
After about thirty minutes, the applicant told the victim he was going to wash her. He took her to the shower. The victim felt dizzy and had difficulty keeping her balance. In the shower the victim fell down and was shivering. The applicant covered her with towels and assisted her back to the bedroom. He briefly left the room. He returned with apples, telling her to eat them and drink some water. The applicant dressed the victim in fresh clothes. He removed the bandage from the wound. By this time it had stopped bleeding. He used a cotton ball to apply antiseptic cream.
The victim lay down on the bed, "feeling cold and shivering". The applicant lay beside her next to the wall. He put a blanket and his arm over her. He told her he was going to cut his wrists in the bathtub. He told her to wait ten minutes before calling emergency services so that he would die. He also told her that if he was not able to do it himself, she would have to cut his wrists for him. She refused.
As the victim was eating an apple the applicant began to kiss her again. The applicant then took the blankets off the victim and began to undress her. The victim, believing she was going to be sexually assaulted again, pleaded with the applicant, saying "stop" and "please don't do it again." The applicant proceeded to kiss the victim forcefully.

Count 4: Aggravated sexual assault

The applicant again performed oral sex on the victim. This conduct constituted count 4, being another offence of aggravated sexual assault.

Offence on Form 1 Attached to Count 4: Aggravated sexual assault

The applicant then penetrated the victim's vagina with one finger and then two fingers. This conduct constituted the aggravated sexual assault offence included on the Form 1 attached to count 4.

First Offence on Form 1 Attached to Count 5: Indecent assault

According to the agreed facts, the applicant took the victim's hand and placed it on his partially erect penis. This constituted the indecent assault which was the first offence included on the Form 1 attached to Count 5. The applicant then moved his hand over hers, demonstrating how he wanted the victim to rub his penis.

Second Offence on Form 1 Attached to Count 5: Indecent Assault

While the victim held his penis, the applicant leant over the victim and proceeded to kiss her on the mouth and rub his penis around her genital area. This constituted the indecent assault which was the second offence included on the Form 1 attached to Count 5.

Count 5: Aggravated Sexual Assault

The applicant sat against the wall and moved the victim's head onto his right thigh. He wrapped his legs around her torso and ordered her to give him oral sex whilst pushing her head towards his penis. The victim tried to push her head backwards but the position of the applicant's legs made it impossible for her to move. The applicant put his penis into the victim's mouth and used his hand to push her head further forwards, inserting his penis further into her mouth. At one point he pinched her nipple and she told him that it hurt. At another point the victim made a choking noise when the applicant pushed her head onto his penis. During this he spoke to her in degrading terms.
After a few minutes the victim was able to move her head away. She asked the applicant, "Will you stop after this?" The applicant replied, "I don't know". She said, "Please can you stop after this?" The applicant replied, "I'll see, just keep doing what you were doing." The applicant reinserted his penis into the victim's mouth and continued to push her head down onto his penis for a number of minutes until he ejaculated into her mouth. The agreed facts again record that she had "no choice but to swallow".
The conduct of the applicant in forcing the victim to perform oral sex on him while the threat with the knife still had operative effect constituted count 5 on the indictment.
The applicant left the bed and covered the victim with a blanket. He dressed, then lay down next to the victim and put his arm over her. The applicant said, "Do you know why I did it the second time?" The victim shook her head. The applicant replied, "So that you'd get angry and help me in cutting my wrists." The victim said she still would not help him cut his wrists.
The applicant asked the victim if she was expecting any calls or texts, and she said she normally messaged her mother at 7:00pm each night. The applicant took the victim's phone and told her to text her mother in front of him. After sending a text to her mother the victim began to cry. She said she wanted to see her "mum". She also said, "Please don't do it for a third time. I really won't be able to handle it for a third time". The applicant replied, "Don't worry, you'll get out of this alive. Just bear with me until I kill myself." The applicant asked about the victim's arm. She told him it was hurting. By this time, blood had soaked through the cotton ball dressing on the wound.
The applicant became upset, saying, "I'm the worst human being. I stabbed you and then I raped you. How could I have done all of this? What did I do?" He said, "A human being like me should definitely deserve to die." The applicant picked up the knife again and said, "It was so easy stabbing you; it'd just be easy cutting my wrists like how I stabbed you." He repeated saying that he was going to cut his wrists in the bathtub and that the victim would have to help him. The victim said, "I'm not going to do it because that would be murdering you". The applicant replied, "You can take everything that I will leave behind and I'll write a letter saying that you're not responsible for it so no one would doubt that you did it."
Over the next one to two hours the victim spoke with the applicant in an attempt to calm him down. She told him she would not tell the police the whole truth but would tell them a story about being injured trying to stop him committing suicide. The applicant told the victim that he had missed a counselling appointment that day. He said, "I am amused at the irony of the situation that here I am having done all these things when I should have gone to the counsellor." The victim pleaded with the applicant to call emergency services so that she could be treated. Eventually the applicant telephoned "000". During the call the victim went to the bathroom, taking the knife with her. By this time the victim's bed and bedclothes were very heavily stained with blood.

The Arrest of the Applicant

Police and ambulance officers attended at about 9:10pm. The victim was taken to hospital. She received stitches to two wounds on her right arm. The applicant was detained under section 22 of the Mental Health Act 2007. He was discharged into the care of his father on Thursday 3 August 2017 as the police had not been informed of the entirety of his actions.
In the days after the offences were committed, the applicant sent the victim a number of messages via SMS, Skype and email. The victim responded to some of them. She accused the applicant of having wounded and sexually assaulted her. He did not deny the accusations. He apologised repeatedly, offering to make amends to her financially and be her "eternal servant". He also begged her to remain in contact with him. In one email to the victim he said, "I have committed the most evil act a person can against a female".
On 22 August 2017, after speaking to a counsellor, the victim decided to tell the police what had occurred and provided a full statement of the above events. The police recorded two telephone conversations between the victim and the applicant in September 2017, during which he made admissions to sexually assaulting her. He was then arrested.
As a result of the wound to her arm, the median nerve on the victim's arm was fully lacerated. It was operated on and repaired. According to the agreed facts, after receiving physiotherapy the victim still had "some diminished sensation and loss of grip strength and thumb mobility in her right, dominant hand".

The Sentencing Judgment

In the sentencing judgment, her Honour identified the statutory provisions governing the applicant's offences and summarised the agreed facts. After doing so, her Honour made various findings in relation to the offences and the sentencing exercise generally as follows.
First, before addressing each of the offences, the sentencing judge addressed the overall objective seriousness of the applicant's crimes. Thus, her Honour accurately described them as "vicious, selfish and insidiously cruel". Of relevance to ground 1 of the appeal is that, after setting out the maximum penalty and standard non-parole periods for the offences, her Honour stated that "[w]here [the offences] are attended by matters [on] a Form 1, they are rendered more serious".
Second, in relation to count 1, her Honour addressed and resolved a dispute concerning the length of the victim's detention as follows: "The detention of [the victim] commenced at the moment she entered her bedroom, where the offender had armed himself with a knife. It is accepted that it continued to at least until the time when [the victim] pleaded with the offender not to inflict upon her a third sexual assault and informed the offender that she would not assist him in committing suicide. The Crown contends that the detention extended up until the time the ambulance was called. The extended length of detention is a matter which aggravates the seriousness of the offending. I am not satisfied that the detention continued beyond the point at which the offender became upset by what he had done and express the desire to kill himself." (emphasis added)
The emphasised part of this passage is the subject of ground 2(a) of the appeal. Otherwise, this represents a finding that the detention the subject of count 1 ceased at the end of the conduct described at [36].
The sentencing judge also found that that the purpose of the detention was to sexually assault the victim. While the sentencing judge was satisfied that it was likely that the applicant had been obsessed with the victim for some time, her Honour was not satisfied that he had decided to act "other than shortly before he did so". Her Honour accepted that the bodily harm was serious but did not find that was "deliberate", describing it as an "unfortunate result of the offender trying to detain [the victim] by using a knife which is itself serious". The sentencing judge characterised the offending the subject of count 1 as "slightly below the mid-range of offending for cases of its kind". The sentencing judge described count 2 at "inextricably linked" to count 1. Her Honour found that it was "towards the lower end but not at the low end of the range of the offending of its kind".
Second, with count 3, her Honour stated that consideration could not be given to the actual violence that was inflicted given that was the conduct the subject of count 2, but nevertheless held that the "threat of violence … implicit" from the victim having been previously wounded had to be taken into account. Her Honour found that this matter was in the "mid-range of offending for cases of its kind". In a passage that is the subject of complaint by ground 1 of the appeal, the sentencing judge stated: "Count 3 refers to the first act of forced fellatio and is further aggravated by the matters on the Form 1, relating to preliminary sexual acts where the offender placed his arm over [the victim] and hugged her for several minutes, straddle[d] her, kissed her on the mouth, chest and abdomen, performed cunnilingus and forced her to touch his penis." (emphasis added)
Third, with count 4, the sentencing judge found that it was "below the mid-range of offending" for cases of its kind. With count 5, her Honour found it was "at the mid-range of objective seriousness for offending of its kind". With both counts, the sentencing judge also found that the relevant offence was aggravated by the conduct that constituted the offences on the relevant Form 1 attached to those counts.
Fourth, although the respondent breached his bail, had to be extradited from interstate and only entered a plea at a relatively late stage, the sentencing judge allowed a discount of 15% on account of his plea. Not surprisingly, there was no challenge to this aspect of the sentence.
Fifth, the sentencing judge summarized the applicant's subjective case. He was 39 years of age at the time he committed the offences. He had no criminal record, a matter the sentencing judge held entitled to him a "degree of leniency". He came to Australia with his family from India when he was 12. He completed his Higher School Certificate, obtained a degree and worked in the Information Technology industry for a number of years. He sat the HSC again as a mature age student and then commenced a double degree in engineering and theoretical physics. He discontinued those studies prior to committing the offences. The sentencing judge described a close relationship between the applicant and his parents.
Sixth, the sentencing judge addressed the evidence concerning the applicant's mental health in detail. Ultimately, her Honour found that, at the time of the offences, the applicant was "experiencing [an] extremely severe depressive episode as well as the effects of a personality disorder". Her Honour found that this "at least in part explains but does not excuse his offending". Her Honour found that he was aware of the "nature and gravity of his actions" but that his moral culpability was "to some extent diminished".
Seventh, the sentencing judge found that the applicant was genuine in his desire to rehabilitate himself and that he was remorseful. However, her Honour found that his prospects of rehabilitation were "somewhat guarded".
Eighth, the sentence judge expressly addressed totality. As it was the subject of complaint on appeal, it is appropriate to set out the relevant part of the sentencing judgment on that topic: "Wherever an offender is to be sentenced for more than one offence principles of totality apply. The five offences for which I am to sentence him for and all of the matters on the Form 1 took place on one day, all against ML, over a matter of hours, all motivated in each case by the offender's desire to obtain sexual gratification in respect of ML with whom he was obsessed. There are two distinct episodes of offending separated by a matter of hours between counts 3 and 4 where the offender showered ML, dressed her, provided her with food and where ML pleaded with him to desists. During that time the offender had time to reflect on his offending and desist, which he decided not to do, albeit affected by thought disorder. The offences making up counts 4 and 5 are in my view part and parcel of the same offending, albeit with added criminality. It is important to accumulate the sentence in a way that reflects the overall offending and to arrive at an appropriate sentence. I propose imposing an aggregate sentence. Had I not done so I would have regarded it as appropriate to impose a largely concurrent sentence in respect of counts 1 and 2 but to accumulate the sentences in a way that takes into account the distinct episodes of offending that I have referred to and the further hurt done to ML in the performance of each act against her." (emphasis added)
Ninth, after noting the need to give effect to specific deterrence and general deterrence, albeit "of less importance by reason of the offender's significant mental health issues", her Honour made a finding of "special circumstances" for the purposes of s 44(2B) of the Sentencing Procedure Act. Her Honour fixed the sentence to commence on 9 November 2018 allowing for what her Honour found was "208" days spent in pre-sentence custody. (At the hearing of the appeal, Senior Counsel for the applicant suggested that the appropriate figure was 238 days but accepted that would still result in the sentence commencing on 9 November 2018. Nothing turns on this.)
Lastly, although it was not expressly mentioned by the sentencing judge, her Honour received and considered a victim impact statement. In that statement, the victim described her "utmost disgust and repulsion" at her appalling treatment by the applicant, noting how "horrified" she felt that "he would sexually assault me while I was injured". She described the ongoing physical effects of the laceration to her arm and the surgery as well at the severe psychological effects of the offences. She said for the six months following the offences she was "in deep depression", was socially withdrawn, had nightmares and was "battling suicidal thoughts every single day". She said that since that time she has continued to suffer from severe social anxiety and poor self-esteem, as well as experiencing difficulty with her arm in "grasping objects, numbness, sharp pain" and restricted movement in her hand and fingers. She told the Court her studies had suffered and she experienced sleeping and concentration difficulties.

Ground 1: Reliance on Form 1 to Aggravate Substantive Offences

Ground 1 of the appeal contends as follows: "The sentencing judge erred in the manner in which the further offences on the 'Form 1' schedules were taken into account. In particular: (a) the sentencing judge erred in considering that the applicant was to be "sentenced for" the Form 1 matters; (b) the sentencing judge erred in determining that offences "attended by matters [on] a Form 1" were "rendered more serious"; (c) the sentencing judge, in assessing the seriousness of the offence in count 3 on the indictment, erred in determining that the offence was "further aggravated by the matters on the Form 1"; (d) the sentencing judge, in assessing the seriousness of the offence in count 4 on the indictment, erred in determining that the offence was "aggravated" by the related Form 1 matter."
This ground and sub-particulars (b), (c) and (d) concern those part of the sentencing judgment noted in [43], [44] and [48]. Sub-particular (a) concerns a passage in the sentencing judgement in which her Honour referred to the applicant "wish[ing] to be sentenced for four further offences on three separate Forms 1".
In essence, this ground and the accompanying submissions contend that the sentencing judge erred in treating the offences on the Form 1 as matters aggravating the subject offences. The applicant's submissions referred to the following passage from RO v R [2019] NSWCCA 183 ("RO") which concerned a similarly complex sentencing task and where the sentencing judge stated that they were "taking into account those matters on the Form 1" to find that a substantive count was "in the mid-range of offending for matters of this kind (RO at 54]): 55 It is clear from this passage that in assessing the objective seriousness of the offending embraced by count 1, the sentencing judge took into consideration the conduct of the applicant in relation to the Form 1 offence described at [12] which concerned another incident at a different time. The sentencing judge found that the Form 1 offence elevated the objective seriousness of the offending. 56 This involved error at two levels. First, it is erroneous because the assessment of the objective seriousness of a criminal offence that carries a standard non‑parole period "is to be determined wholly by reference to the nature of the offending" for that offence and not other criminal conduct engaged in on a different occasion (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]). 57 Second, it is erroneous because it is inconsistent with the Sentencing Procedure Act for Form 1 offences to be considered in this manner. For present purposes, the relevance of the Form 1 offences to the exercise of the sentencing discretion for the subject offences was that they demonstrated an "additional need for personal deterrence and retribution" (Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23] (Bathurst CJ); see also at [64] (Basten JA); at [104] (Hoeben CJ at CL) and at [154] (Garling J); ("Abbas") and Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42])."
In this case, the applicant contended that the approach of the sentencing judge in this matter involved the second type of error referred to in this passage (ie, RO at [57]). The Crown conceded that, at least so far as the passages in [43], [44] and [48] are concerned, the sentencing judge erred. I consider that concession to be well founded. Those passages are inconsistent with RO at [57] (as well as Stephens v R [2010] NSWCCA 93 at [69] per Fullerton J).
The Crown did not concede error in relation to the first sub-particular of ground 1 on the basis that it is apparent from a reading of the whole sentencing judgment that her Honour did not sentence the applicant "for" for the Form 1 offences. I accept that submission.
The Crown accepted that, as this error affected the sentencing judge's approach to three of the five substantive counts, then it followed that the aggregate sentence was relevantly affected and the obligation to re-exercise the sentencing discretion arose (citing Kentwell). Again, I consider that concession was properly made.
Accordingly, I would uphold ground 1 of the appeal.

Balance of the Grounds of Appeal

The remaining grounds of appeal are as follows: "Ground 2: The sentencing judge erred in: (a) determining that the "extended length of detention is a matter which aggravates the seriousness of the offending" for count 1; (b) finding that the two discrete episodes of offending were "separated by a matter of hours". Ground 3: The sentencing judge erred in determining that the offences in counts 3, 4 and 5 were "aggravated by the use of the threat backed up by the possession of the knife." Ground 4: The extent of accumulation in the aggregate sentence indicates that her Honour erred in applying the principle of totality."
In light of the conceded error, it is only necessary to address these grounds to the extent that they may affect the exercise of the discretion to resentence.
Ground 2(a) is directed to the emphasised passage in the extract from the sentencing judgment set out in [44] above which records a finding that the period of detention the subject of count 1 was "extended". The applicant made two complaints about the finding.
First, it was submitted that it was a finding with an "incorrect or uncertain factual foundation" in that it was contended that the neither the agreed facts nor the indictment provided a clear indication of the duration of the detention.
This contention has no substance. It is not necessary to address the basis upon which a finding of fact made on sentence can be reviewed (cf R v O'Donoghue (1988) 34 A Crim R 397; "O'Donoghue"; with Hordern v R [2019] NSWCCA 138 at [20]; "Hordern). The finding that the detention ended prior to the arrival of an ambulance was favourable to the applicant but, even accepting that, it was nevertheless well open to the sentencing judge to find, as I do on resentence, that the period of detention was extended. The agreed facts make it clear that the period of the detention was sufficiently lengthy to enable the applicant to: seriously sexually assault the victim five times; indecently assault her twice; stab her, ejaculate twice; "[leave] the bedroom for a short time" ([17]); research medical treatment on his phone ([17]); lay on a bed with her ([19]); wait a "few minutes" ([20]); "lay beside her next to the wall" ([23]); wait "thirty minutes" ([24]) and then take her to the bathroom to treat her wound ([24]; lay down beside her on the bed another two times ([25] and [34]), and beg the victim to help him kill himself ([35]). This detention was "extended".
The second basis for the complaint made in ground 2(a) is that the sentencing judge erred in treating the length of the detention as a factor in aggravation when detention is an element of the offence (Sentencing Procedure Act, s 21A(2)). The Crown submitted that the sentencing judge did not reason that way but simply recorded a submission of the Crown to that effect. I doubt that is so, but it is not necessary to resolve this. On resentence I will not treat the extended period of detention as an "aggravating factor" per se, although it is (highly) relevant to an assessment of the objective seriousness of the offence.
Ground 2(b) is directed to whether there is a proper basis for the finding found in the emphasised passage in [53] to the effect that the offending the subject of counts 3 and 4 were "separated by a matter of hours". Again, it is not necessary to address the basis upon which such a finding maybe reviewed in this court. According to the agreed facts, after the sexual assault the subject of count 3, the applicant directed the applicant to lay on a bed and laid down beside her ([23]). Then after "about 30 minutes" he took her to the bathroom, where she showered, he then covered her in towels, assisted her back to the bathroom, left to obtain some apples and then returned and attempted to dress her wound ([24]). When allowance for the time involved for that to occur is made, along with the other matters in [25] and [26], it more than justifies a finding that some "hours" passed between the two sexual assaults.
Ground 3 contends that her Honour erred in considering counts 3, 4 and 5 by referring to them as being "aggravated by the use of the threat backed up by the possession of the knife". It was common ground on the appeal that the fact that each of the sexual assaults was accompanied by a "threat backed up by the possession of the knife" was a "circumstance of aggravation" within the meaning of s 61J(2) of the Crimes Act, specifically s 61J(2)(b). The debate in the submissions concerned whether the sentencing judge only treated it as an element of the offence or had additional regard to it as an aggravating factor contrary to s 21A(2) of the Sentencing Procedure Act. Again, it is not necessary to resolve that debate for the purposes of resentencing. I will only treat this as a "circumstance of aggravation", that is in effect, an element of the offence.
Ground 4 of the appeal contends that the extent of the accumulation revealed by the aggregate sentence indicates that the sentencing judge erred in applying the principle of totality. As it will be necessary to consider totality in undertaking the re-sentencing exercise, it is appropriate to address this ground. The applicant's submissions pointed to the circumstance that the aggregate sentence that was imposed was just under twice the length of the longest indicative sentence (for count 3). The submissions contended that the applicant engaged in a single episode of criminality with common factors for the individual counts. It was contended that the sentence was not "just and appropriate" having regard to his subjective case.
In considering the application of the totality principle to this case two statements of principle must be borne in mind. The first is the oft cited passage from the judgment of Howie J in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] to the effect that whether sentences should be "imposed concurrently or consecutively" is to be answered by "the application of the principle of totality of criminality", namely, "can the sentence for one offence comprehend and reflect the criminality for the other offence?" In this case, had an aggregate sentence been imposed which did not much exceed the indicative sentence for count 3, then it would not have even come close to "comprehend[ing] and reflect[ing]" the overall criminality involved. This case was not a just single instance of sexual assault with a threat backed up by a weapon. The applicant's conduct involved the sustained detention, stabbing and repeated brutal and humiliating sexual assault of the victim.
The second statement of principle is the following passage from Nguyen v R (2016) 256 CLR 656; [2016] HCA 17 at [64] "Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency." (emphasis added)
Even though the sentencing judge erred in the treatment of the relevance of the Form 1 offences to the setting of an appropriate (indicative) sentence for each substantive count, I consider that the sentences her Honour imposed for counts 3, 4 and 5 were relatively lenient given the seriousness of the offending and making due allowance for the offender's subjective case. Further, her Honour was at pains to not treat the element of one offence as an aggravating circumstance of another. Overall, this sentence was analogous to the emphasised passage from Nguyen in that the less severe individual (indicative) sentences called for a greater degree of accumulation in order to reflect the total criminality of the applicant's actions.
If it had been necessary to decide, I would have rejected ground 4 of the appeal.

Resentencing and Whether Lesser Sentence is Warranted in Law

As error in the sentencing process is established, then this Court must discharge the obligation imposed by s 6(3) of the Criminal Appeal Act 1912, namely determine whether a sentence more or less severe is warranted in law and should have been passed. This involves an independent exercise of the sentencing discretion. However, the Court is not required to resentence "in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal" (Kentwell at [43]).
I will address the exercise of the sentencing discretion on a basis that accepts the sentencing judge's findings as to the appropriate discount for his plea, his mental health and its relevance to the applicant's sentencing, the finding of special circumstances, the applicant's remorse and prospects of rehabilitation.
Further, on the appeal, an affidavit from the applicant's father was read on the "usual basis" (see Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]; "Betts"). In that affidavit, his father referred to his son's high academic ability which led to his enrolment at University in 2017. His father stated his son's only access to textbooks in custody is what his father sends him and he cannot enrol in online University courses because he does not have access to the internet, although he intends to re‑enrol at University on his release. His father also states that his son is not receiving anti-depressant medication and that his access to health professionals including dentists is sporadic with delays of some months in obtaining appointments. His father recounted how the pandemic restrictions prevented his son from receiving visitors although he had daily telephone contact with his father.
The Crown read an affidavit attaching Corrective Services and Justice Health records. The affidavit attaches an email from an assessment and planning officer at the Hunter Correctional Centre who advised that the applicant had access to some textbooks supplied by his father but like all prisoners he has no access to the internet. Justice Health's response to the health issues raised by the applicant's father was that the "comments [in the applicant's affidavit] for which we have clear processes in place should the patient have concerns as to treatment". I understand this dismissive response to be to the effect that Justice Health considers that it can address the applicant's concerns if he approaches them direct.
It can be accepted that the completion of a degree by the applicant in custody has become practically impossible and that otherwise there are only likely to be very limited study options available to him. I also accept that in custody he may not receive the same level of health care that he could have expected to have received in the community although he is still likely to receive an adequate level of care. In that regard it can be expected that if representations are made, he will receive any prescribed anti-depressant medication. The pandemic restrictions on visitors have now been lifted although the potential for them to be imposed cannot be discounted and the hardship prisoners incurred when they were imposed is a matter to be considered in resentencing. Overall, this evidence does not weigh much in the exercise of the sentencing discretion.
Without regard to the Form 1 offences, I consider that each offence is at least as objectively serious as that found by the sentencing judge. The relevance of the Form 1 offences is addressed in the passages from RO set out above (at [58]).
In RO, I addressed whether, in the re-exercise of the sentencing discretion this Court was required, permitted or precluded from specifying what a more severe sentence would have been before it dismissed an appeal (at [84]). I concluded (at [89]) "… In undertaking [the resentencing] exercise, if the Court concludes that a greater sentence is warranted then it is not obliged to specify what the sentence was but may instead simply dismiss the appeal (Gal; O'Grady) although it may decide to specify the sentence that was warranted (Turnbull). For my part, in light of the observations in Gal, I consider that the Court should only take the latter course if some particular circumstance warrants it. One possible such circumstance appears to follow from the emphasised statement in the above passage from Kentwell, namely where the Court is considering the application of s 6(3) to an aggregate sentence. That passage appears to contemplate that, at least in some cases, the Court may need to identify the particular indicative sentence that is warranted for each offence prior to the Court forming a conclusion about whether an aggregate sentence that it considers is warranted in law is more (or less) severe than the aggregate sentence the subject of the appeal."
Bathurst CJ agreed with this passage (at [1]). N Adams J expressed qualified agreement stating that her Honour was "unable to identify" any circumstance in which the Court would specify the sentence that was warranted in law if it exceeded the sentence under appeal. Her Honour "disagreed … that a possible circumstance is when the Court is considering the application of s 6(3) to an aggregate sentence" (at [120]).
It is unnecessary to reagitate this debate as I do not consider that this is a case where it necessary to specify what the indicative sentences or aggregate sentences would have been before concluding that no lesser sentence is warranted in law. Instead, given the above findings it suffices to state that I am satisfied that this is a case where a greater (indicative) sentence was warranted for each of counts 3, 4 and 5 compared to those imposed by the sentencing judge (and no lesser indicative sentence was warranted in relation to counts 1 and 2). When regard is had to that conclusion and the principles stated in Cahyadi and Nguyen noted above, it follows that I am satisfied that both the head sentence and the non-parole period of "the aggregate sentence that [is] warranted in law exceeds the aggregate sentence that is the subject of appeal" (Kentwell at [43]). It further follows that I consider that the appeal should be dismissed.
Accordingly, the orders that I propose are: (1) Leave to appeal against sentence be granted. (2) The appeal be dismissed.
WILSON J: I agree with the orders proposed by Beech-Jones J for the reasons his Honour has expressed. In particular, I agree that the aggregate sentence warranted in law exceeds that imposed at first instance, and thus that the appeal should be dismissed.

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