Thompson-Davis v R

Factual background 8I will deal with the relevant facts chronologically. Proceeding in this way, the offence for which the offender was sentenced by the primary judge is second in point of time. 9The offender had been released from prison on parole on 31st March 2009. The total term of imprisonment the offender was serving at that time was one of six years and five months expiring on 11th December 2010 and imposed upon him by his Honour Judge Coorey in the Sydney District Court on 6th May 2005. The sentence was taken to have commenced on 12th July 2004. The offence was one of aggravated robbery. Two other offences on a Form 1 had been taken into account, including an offence under s.112(2) Crimes Act. The facts of these matters are not before this Court. However, 11th January 2008 was the earliest date on which he had been eligible for parole. 10After his release on parole, the offender resided in Armidale on the northern tablelands of New South Wales with his partner and two young children until he was taken back into custody after the commission of the instant offences, and his parole was revoked. 11The second offence on the Form 1 is the first of the instant offences in time. On 23rd April 2009 he approached his female victim who was walking her dog on a public street. He asked for directions to the cemetery, which was a pretext for speaking to the victim. The offender acted as though confused and the victim offered to show him the way. She walked ahead of the offender. After a short time, the offender yelled at the victim to attract her attention. When the victim turned she saw that the offender had dropped his trousers and underwear exposing his flaccid penis which he handled as if in an attempt to produce an erection. 12After a short time the offender desisted, apologised and explained that he had recently been released from gaol and had turned his life to Christianity. The victim left the scene and reported the matter to the police. 13The offence for which the offender was sentenced occurred on 26th April 2009 at 2:00 a.m. First, it is necessary to recount that on the 21st of April 2009 the offender had knocked on the victim's door asking after a person named "Mark". This was probably a pretext. The offender was previously unknown to the victim. 14He informed the victim that he was not long out of gaol and needed somewhere to stay. The offender asked the victim if he could use her phone to call a friend. When the victim offered to make the call for him, the offender handed her a piece of paper which was obviously an advertisement for a prostitute ripped from a newspaper. Undaunted the victim dialled the number and handed the phone to the offender who said, "there is no answer". The victim showed the offender the door and he left. 15In the early hours of 26th April 2009, the victim was awoken by the sound of knocking on her front door and sidelight. She arose to investigate. As she approached her front door she recognised the offender from his earlier visit. 16The offender called out to her and the victim opened the door, and held it slightly ajar. The offender said: I am sorry to bother you and wake you up. I know it's the middle of the night. I just need somewhere to stay. Again, this was a pretext. The victim refused to admit him. The offender then asked to use her phone to call a cab. And again, rightly, the victim refused. The offender then said: Alright, alright I'm sorry. I just want to come in and I'll look after you and take care of you. I want to spend time with you. I promise I will be really gentle with you. The victim quickly shut the door, telling the offender to go away. 17Although, the offender said he would go, the victim saw him looking through her kitchen window. She attempted to stay out of sight. The offender then went to the lounge room window and looked through it, calling out "please let me in". The victim said, "You're scaring me please go away. I'm on my own". In fact, her young daughter was home and the victim was understandably concealing that fact. 18The offender then broke into the house through the closed front door and confronted the victim in the kitchen. The victim tried to dial 000 but was unable to because the offender moved towards her and pushed her against a kitchen bench. He forced his hands into her dressing gown and put them on her breasts and chest, despite the victim's protestation. She then screamed for help upon which the offender took flight. The victim sought help from a neighbour. Police were called and attended. The officers found that the front door frame, through which the offender entered, was damaged. 19At the time of the break-in only the victim and her twelve-year-old daughter were home. The victim's daughter was unharmed. The sentencing judge found that the offender was unaware of the daughter's presence. 20The first offence listed on the Form 1 occurred on 30th April 2009 at about 8:45 a.m. It is the third offence in time. The offender again approached a female victim on a public street and attempted to engage her in conversation. He said he had just been released from gaol and was feeling a little strange. The offender asked the victim where she lived and if he could go there with her. The victim was afraid and said, "No". The offender told her of his conversion to Christianity. The victim excused herself and walked away from the offender, but he followed her. The victim became apprehensive for her safety. When she was near her home, the offender again approached the victim and asked if she lived there. She denied it. But the offender asked if he could come inside for a drink of water. The victim crossed the road and the offender followed saying he needed to go inside her house to use the toilet. The victim told the offender that she had a partner and the offender became agitated. The victim was able to lose the offender. She attended a friend's house and called the police. 21Police arrested the offender on 30th April 2009, on which day his parole order was revoked and he recommenced serving his term of imprisonment. The offender denied the offences. No plea of guilty was entered until the matter came before the District Court in early 2010. 22The primary judge found that the mention the offender made to his victims of his conversion to Christianity had a sinister connotation, and was an attempt to lull them into a false sense of security.

Plea in mitigation 23When the matter first came before the sentencing judge on 4th March 2010, the offender had been back in custody for ten months. Notwithstanding this, or perhaps because of it, no up-to-date information was available that might have assisted his Honour in the assessment of the offender's prospects of rehabilitation, or advancing any factors which might have supported a claim for leniency on his behalf. During the course of the proceedings on sentence (10.20 - 30T) the sentencing judge asked why a pre-sentence report was not available. Counsel then appearing had come into the matter late and was unable, for that reason, to provide an answer to the judge's query. No application for adjournment was made to take up the suggestion implicit in his Honour's question. 24A number of exhibits were tendered which demonstrated that during earlier periods of incarceration, the offender had used his time profitably in courses addressing drug and alcohol relapse prevention, making gifts for aboriginal elders, anger management, and alcohol and violence prevention as well as TAFE courses in carpentry and advanced first aid in the workplace. He was awarded a senior first aid certificate. He was proved to be articulate, capable of writing poetry and skilful as an artist. Regrettably, most of this material was somewhat dated. 25The offender gave sworn evidence. During his evidence he expressed recognition of the need to take personal responsibility for his actions, but said at the time he committed the subject offences, he now realised, he was an institutionalised person who couldn't live without authority. He agreed with the sentencing judge that the crimes before the Court were disturbing and the offender said "I look at myself as disgusting". He admitted that he had fallen into a bad pattern of drinking and smoking when he had been released on parole. He spontaneously expressed remorse saying: I do look at the seriousness of my behaviour and I do fully ... have deep side (sic) of remorse and if I could, I would like to make a personal apology, if I could take the fear out of their hearts that I placed there, I would do that. I deeply regret...my actions, my thoughts, me feelings (sic) you know, desires in my heart ... (POS 8.30 - 35T). 26The offender had a most unfortunate upbringing. He was born at Kempsey of indigenous parents, from whom he was removed at birth because of their alcohol problems. He was raised by his aunt until he was about 13, when he became "too much for her" and "got removed from her custody and care" (10.5T). He then went through a series of "about five" foster placements. He started smoking cannabis and drinking alcohol at age fourteen. 27His criminal record is regrettably very long, commencing on 20th February 1995 when he was aged fourteen and four months. His past offences are various, involving crimes against property, against the person, and many incidents of civil disorder. As I read it, however, there is only one entry on the record of any offence having obvious sexual connotations, being four incidents of wilful and obscene exposure, taken into account on a Form 1 under s.33 Sentencing Act when he was dealt with for an offence under s.112(2) Crimes Act in the year 2000. 28I interpolate that at the very least the record is capable of demonstrating that the offender has "a continuing attitude of disobedience of the law". To my mind it is less obvious that it shows "dangerous propensity", as his Honour may have thought. His Honour seemed to conclude from the record that the instant offences involving indecency and having sexual connotations were not "an uncharacteristic aberration": Veen v. The Queen [No. 2] [1988] HCA 14; 164 CLR 465 at 477. His Honours Reasons 29Having recited the facts, which I have summarised above, his Honour said (ROS 7): On any recitation of those facts, the offence is serious. It attracts a standard non-parole period of five years. Albeit that this is a guilty plea, the standard non-parole period acts as a guidepost in sentencing. In any event, I have to determine where this offence rests in the hierarchy of offences of its type. From the recitation of the facts which I find beyond a reasonable doubt, I conclude that this offence rests somewhere above the middle range for offences of it's type. His Honour regarded the offending he was dealing with as persistent, and premeditated. He regarded the circumstances as terrifying for the victim. He found the offender's history disturbing, and he took the view that lack of control of his sexual urges was a feature of his offending over the years. I interpolate, that is not obvious to me from an examination of the applicant's regrettably long criminal record. I have set out my understanding of his record in this regard at [27]. The information before this Court does not otherwise disclose a history of sexual offences. 30His Honour accepted the possibility that the offender may have become institutionalised by his long periods of incarceration, but considered that the offender could have done more to help himself whilst in gaol. He referred to the subject offence and the Form 1 offences together as "[t]his reign of terror of women" (ROS 9). (The Crown accepted that this was "hyperbolic"). And his Honour found that the commission of the subject offence whilst the offender was at conditional liberty on parole was a "significant aggravating feature", as it no doubt was. 31His Honour found that there were no special circumstances justifying a variation of the s. 44(2) Sentencing Act ratio between the non-parole period and the additional term. 32"Subjectively", his Honour said (ROS 9): ...there are some interesting aspects to this man. He is clearly intelligent and he clearly has talents. I have seen some of his writings, I have seen copies of his paintings which obviously show talent. He is a man who sadly has squandered many of his physical talents. His Honour noted that at the time of the sentencing hearing he was estranged from his wife and two children and recorded the details of his unfortunate childhood, but observed "[a]s is the case with far too many young Aboriginal men, he became uncontrollable." 33Taking notice of the various courses the offender had undertaken whilst incarcerated, including the carpentry course, his Honour observed "[t]he courses that he has done over the years do not seem to have changed his ways, particularly in relation to offending in the way he has here." (Emphasis added). As I have said, his Honour referred to Veen [No. 2], but it is unclear, from what he said, whether his Honour decided that there was a particular need to factor the consideration of the protection of society into the appropriate sentence. 34In pronouncing his sentence his Honour said he took into account the matters on the Form 1 and had allowed a 10 per cent discount for the utilitarian value of the late plea. He said: You are sentenced to a non-parole period of five years, four months and twenty-four days to commence on 1 August 2010 and to expire on 24 December 2015. You are sentenced to a balance of sentence of one year, nine months and eighteen days to expire on 12th October 2017. 35As can be seen, his Honour decided to accumulate the sentence he had passed on the sentence that the offender was currently serving. Section 47(2)(b) of the Sentencing Act permitted this partial accumulation, but not where the "offender ... is serving some other sentence of imprisonment by way of full time detention if", as here, the non-parole period set for that other sentence has expired, and "the offender is still in custody under that other sentence": s.47(5) Sentencing Act. It followed, as both parties soon realised, that, inadvertently, because neither party had drawn s.47(5) to his Honour's attention, the primary judge had "imposed a penalty that is contrary to law" within the meaning of s.43(1)(a) Sentencing Act. In these circumstances, s.43(2) Sentencing Act empowered the sentencing judge to "reopen the proceedings", after hearing from the parties, to "impose a penalty that is in accordance with the law", inter alia.

Further sentencing on 1st April 2010 36When the matter came before the sentencing judge again on 1st April 2010, he recorded that the offender's main concern, as explained by counsel then appearing, was "that his effective release date be no different". Exercising the power conferred upon him by s.43 of the Sentencing Act, his Honour decided, "that the appropriate course then was simply to add four months to the head sentence and to commence the sentence from today". His Honour quashed the original sentence and re-sentenced the offender as follows: The offender is re-sentenced as follows in relation to the offence with which he was charged. He is again convicted, taking into account the matters on a Form 1 as I had and adopting the same reasons as I gave on 4 March I re-sentence the offender to a non-parole period of 5 years, 7 months and 24 days to commence on 1 April 2010 and to expire on 24 November 2015 and a balance of term of 1 year, 10 months and 18 days to commence on 25 November 2015 and expire on 12 October 2017. 37It is from this sentence that the offender seeks leave to appeal, as I earlier said. 38Although the earliest date of eligibility for release was, as the sentencing judge noted, one month earlier, the effect of the re-sentencing was that both the non-parole period and the additional term were lengthened. To illustrate this I reproduce the following tabulation appearing at the end of paragraph 5 of the offender's outline of submissions. Date Head Sentence Non-Parole Period 4 March 2010 7 years 2 months and 12 days 5 years 4 months and 24 days Commence: 1.8.10 Commence: 1.8.10 Expire: 12.10.17 Expire: 24.12.15 1 April 2010 7 years 6 months and 12 days 5 years 7 months and 24 days Commence: 1.4.10 Commence: 1.4.10 Expire: 12.10.17 Expire: 25.11.15

The submissions on appeal 39In relation to ground 1, Ms. A. Francis of counsel, who appeared for the applicant, accepted that the sentencing judge was bound to correct his original s.47(5) error. She argued that as in the particular circumstances of this case s.43(1) of the Sentencing Act was not otherwise engaged, in exercising the powers conferred by s.43(2) Sentencing Act, his Honour was bound to observe and apply sentencing principles of general application: Ho v. Director of Public Prosecutions (1995) 37 NSWLR 393 at 403B - C. For the purpose of this ground, Ms Francis argued, his Honour's original sentence was contrary to law only because his partial accumulation of his sentence on the existing sentence contravened s.47(5) Sentencing Act. There was no other error. Having otherwise already fixed the appropriate sentence for the instant offence (taking into account the Form 1 matters) s.43(2) did not provide the occasion for re-visiting and re-fashioning the sentence previously passed. By seeking to achieve indirectly that which he could not achieve directly by accumulation, his Honour took into account an irrelevant consideration to extend the sentence originally imposed. 40In relation to ground 2, Ms. Francis reminded the court that manifest excess, as a ground of appeal, states a conclusion the court arrives at after considering all relevant circumstances: Dinsdale v. The Queen [2000] HCA 54; 202 CLR 321 at 352 [6]. Of its nature, the misapplication of principle which undermines the sentence may not be identifiable from the primary judge's statement of reasons: Wong v. The Queen [2001] HCA 64; 207 CLR 584 at 605[58]; Hili v.The Queen [2010] HCA 45; 242 CLR 520 at 538-9 [59] - [60]. In written submissions, the applicant provided both judicial commission statistics for s.112(2) offences and a table of comparative sentences. Counsel appropriately acknowledged the limited usefulness of this type of material generally: Wong at 606 [59]; Hili at 537 [54] - [56]; as well as the limitations applicable to s.112(2) offences in particular: Marshall v. R. [2007] NSWCCA 24 at [33]; R. v. Shillingsworth [2003] NSWCCA 272 at [57]; YS v. R. [2010] NSWCCA 98 at [28] - [30]. But it was argued that within the confines of its limited utility, this material bolsters the conclusion that the sentence imposed was manifestly excessive. 41Orally a third ground of appeal was advanced, namely that his Honour inverted the proper process by adjusting his sentence to give effect to his previously conceived view of proper accumulation; the proper approach required in principle was to first fix the appropriate sentence and "then consider questions of cumulation or concurrence, as well, of course, as questions of totality": Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 624 [45] per McHugh, Hayne and Callinan JJ. Here, the discretion to accumulate was limited by s. 47(5), but subject to that consideration the same approach was called for. 42Ms. Francis further argued that the proper order for the court to make was one of remitter under s.12(2) Appeal Act. It was submitted that neither the sentencing court nor this court had before it all material relevant to sentence. Moreover, she informed the court, material that she had seen suggested that a mental illness may have been diagnosed since the offender was sentenced, which would obviously be relevant if he was to be re-sentenced. No evidence, however, was available to be put before this Court to assist it in that regard. It was said that the interests of justice would be better served by having the applicant re-sentenced in the District Court. 43The Crown, in its submissions, emphasised the width of the power conferred on the sentencing court by s.43(2) Sentencing Act. In argument however (at 7.30 - 40T), the Crown accepted that it would have been an error for his Honour to treat his original intended date of expiration of the sentence as a wholly decisive consideration. It was submitted however that even if this error occurred, the Court should conclude that no other sentence is warranted in law. 44With regard to ground 2, the Crown drew attention to the maximum penalty of 20 years, and the standard non-parole period of five years, for s.112(2) offences. The Crown also submitted that his Honour's factual findings were open to him, and justified the sentence fixed, and that applying s.33(2) Sentencing Act, it was necessary to bear in mind the Form 1 offences in fixing the appropriate sentence. Even if ordinarily those additional offences would be dealt with summarily, they made it appropriate that there be some increase in the sentence for the primary offence, which need not be modest: Attorney General's Application [2002] NSWCCA 518; 56 NSWLR 146 at [18]. 45The existence of the Form 1 offences, it was observed, engaged the second element discussed by Spigelman CJ in Attorney General's Application at 159 [42], in particular "the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed". 46The Crown submitted that there had been no error in applying the principles discussed in Pearce.

Consideration and decision 47I accept that the sentencing judge erred in the exercise of the wide power conferred upon him by s.43(2) Sentencing Act by treating the date of the expiration of the additional term as originally fixed, namely 12th October 2017, as decisive, even if by refashioning the sentence in the way he did, his Honour produced a non-parole period that expired a month earlier than the non-parole period originally fixed on the 4th of March 2010. Whether or not the offender will be released at the expiration of the non-parole period is a matter for the executive branch of government. Nor does it make any difference that counsel then appearing for the offender expressed the offender's anxiety "that his effective release date be no different". The offender obviously desired no increase in the length of the sentence, but he was entitled to be sentenced according to law and his anxiety about that was neither a relevant consideration nor a "concession". 48As McHugh, Hayne and Callinan JJ pointed out in Pearce at 623 - 624 [45]: To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. 49That this statement of principle was made in the context of passing sentence for each of multiple offences simultaneously does not rob it of relevance in the present context. 50As a unanimous High Court said in Muldrock v. The Queen [2011] 39 HCA; 244 CLR 120 at 132 [29], a judge is to: identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. (Emphasis added) 51Accepting that "sentencing is not a process that leads to a single correct answer" (Pearce at 624 [46]) makes no difference to the "task of the sentencer" which "is to take account of all relevant factors and to arrive at a single result which takes due account of them all": Wong at 611 [75] per Gaudron, Gummow and Hayne JJ (original emphasis; delineation added). 52His Honour had sought to undertake that task on 4th March 2010. His exercise of discretion on that occasion miscarried because he imposed a sentence that was contrary to law as it contravened s.47(5) Sentencing Act. In the particular circumstances of this case the exercise of the s.43(2) power did not call for the imposition of a different sentence. In some circumstances the imposition of an entirely different sentence may be legally permissible under s.43(2), but his Honour's exercise of his discretion miscarried because he took into account an irrelevant consideration, namely, his previous determination, affected as it was by error of law, that the sentence should not expire until 12th October 2017. In reality his Honour had made a discrete error readily remediable. I would uphold ground 1. 53As I have already stated, I am also of the view that the offender has demonstrated manifest error. I have borne in mind the following principles: (a)A finding by an appellate court of manifest excess means that "the result embodied in the sentencing judge's orders was 'unreasonable or plainly unjust'": Hili at 538 [58]; House v. the King [1936] HCA 40; 55 CLR 499 at 505; (b)That finding is a conclusion that "there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons": Wong at 605 [58]; (c)By its nature, the conclusion that a sentence is vitiated by manifest excess "does not admit of lengthy exposition": Hili at 539 [59]. However, it does not follow from this that "manifest error is fundamentally intuitive", it is not: Hili at 539 [60]. "[W]hat reveals manifest excess ... is consideration of all of the matters that are relevant to fixing the sentence": Hili at 539 [60]; (d)Where an offender alleges manifest excess, the Court of Criminal Appeal assumes that no specific error is alleged: Hili at 539 [61]. Accordingly, it is futile, indeed erroneous, to search for one. (e)Subject to the adoption of the correct, cautious approach, a consideration of past sentences in closely comparable cases may highlight excess: a consideration of sentences which have in fact been imposed in similar cases does not establish a correct range, but may provide "a yardstick against which to examine a proposed sentence": Hili at 537 [54]; Director of Public Prosecutions (Commonwealth) v. De La Rosa [2010] NSWCCA 194; 243 FLR 28 at 98 [303] - [305] per Simpson J; (f)"The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if a sentencing judge is not also told why those sentences were fixed as they were": Wong at 606 [59] (emphasis in the original). For this reason marked difference from sentences imposed in other cases does not of itself justify appellate intervention: Wong at 604 [58]. With regard to the last point, it should be borne in mind that the Court is exercising state, not federal, jurisdiction. The statements of principle expressed in De La Rosa, Wong and Hili have to be read bearing that distinction in mind. Section 8 Judicial Officers Act 1986 (NSW) authorises the Judicial Commission to "disseminate information and reports on sentences imposed by courts". That dissemination is "for the purpose of assisting [state] courts to achieve consistency in imposing sentences". By dint of s.8(2), the section does not limit "any discretion that a court has in determining a sentence". And, importantly, "[c]onsistency is not demonstrated by, and does not require, numerical equivalence": Hili at 535 [48]. 54Bearing these principles in mind, together with the very broad nature of actual criminality covered by s.112(2) Crimes Act, I have derived some benefit, nonetheless, from the consideration of the comparative sentencing information provided by the offender. 55Of the 1,268 offenders sentenced in the higher courts from October 2003 to September 2010 for offences contrary to s. 112(2) Crimes Act, 67 per cent received a term of imprisonment. Of those offenders sentenced to prison in the period, 53 per cent received a term of three years or less and 47 per cent three years and six months to eight years. Of that latter category, sixteen per cent received between five years and eight years with only one per cent receiving each of seven and eight years. Of offenders with a prior criminal history, including a previous s. 112(2) offence, and who had previously served a custodial sentence, 37 per cent received a sentence of between one year and three years. (62 per cent of that group received three years.) The balance of 63 per cent received terms of imprisonment between three years and six months and eight years. Of this group, three per cent received seven years and one per cent received eight years. These bare statistics relate to the total term of imprisonment. With regard to non-parole periods, 92 per cent of all relevant offenders received a non-parole period of three years or less. More than half of this number received eighteen months or less. Of the eight per cent who received a non-parole period of three years and six months or greater, only one per cent of all offenders received a non-parole period of either five years or six years. Of those offenders with prior convictions including of the same type who had previously been in gaol (admittedly a relatively small group of 115 offenders) 88 per cent received a non-parole period of three years or less. Again, nearly half of that group received a non-parole period of eighteen months or less. 56Of the 20 prior sentences in the District Court offered as comparable, or at least for comparison, only two involved a sexual element as the circumstance of aggravation. Accordingly, it seems to me that the other eighteen ought to be put to one side from the outset as not involving criminality sufficiently comparable in nature. But it is worthwhile pointing out that these two sexual offenders received the most severe sentences amongst the group of 20. Three other cases involving assault with a weapon came close. 57The first case is R. v. Shillingsworth [2003] NSWCCA 272. The offender had been a member of a party of people drinking at the home of the complainant and her husband. When the party broke up in the early hours of the morning the offender was in something of a stupor and was helped outside the door by the complainant's husband and brother-in-law. They placed the offender on the lawn. When he roused from his sleep, he broke into the complainant's home and sexually assaulted her while she was asleep on her bed beside her husband. The crime involved penetration but no ejaculation, as the complainant and her husband woke interrupting the offender causing him to flee. The offender was an aboriginal man with a chronic alcohol problem and a very deprived and unfortunate background. The sentencing judge found special circumstances and fixed a non-parole period of four years with an additional term of three years, that is a total sentence of imprisonment of seven years. The Court of Criminal Appeal agreed with the primary judge "that it was very difficult to determine what the correct sentence should be". The appeal against sentence was dismissed. 58The offender in YS v. R. [2010] NSWCCA 98 was aged sixteen years at the time he committed the offence. The offender broke into the home of the complainant who was then in her mid twenties. He was unknown to her. He threatened the complainant and committed a number of sexual assaults upon her: he digitally penetrated her; he penetrated her with his tongue; he forced her, by pulling her towards him by her hair, to commit an act of fellatio on him. He did not ejaculate. As I have said, the criminality involved physical assault and threats. The offender was of aboriginal descent with a history of family breakdown and drug and alcohol abuse. These crimes were committed in 2002 but the offender was not apprehended until 2008 when, because of his commission of other crimes, police were able to match his DNA with DNA samples obtained at the time of the police investigation of the original offence. In the years prior to his arrest, the offender was diagnosed with a psychotic illness (at the age of eighteen), and went on to commit a number of other offences, including robbery, none of which involved sexual offences. When the offender was sentenced by the District Court he was serving a sentence with a non-parole period still current, and the primary judge commenced the sentence of imprisonment for the subject offence from the conclusion of that non-parole period. The sentencing task was complicated by the fact that the offender suffered from a mental illness at the time of sentencing (if not at the time of the offence), that he was a minor at the time of the offence, and - like the present matter - issues of concurrency, cumulation and totality were involved. A non-parole period of five years was fixed with an additional term of three years (totalling eight years). 59In each of these matters the Court of Criminal Appeal eschewed reliance upon the sentencing statistics. And this sample of two is too small to support any firm conclusion about either patterns or principles to be applied. But I am of the view that the sentencing statistics, permissible as they are under s.8 Judicial Officers Act, and the two examples I have referred to, assist me in concluding that, overall, the sentence here is manifestly excessive. 60In expressing this conclusion, I bear firmly in mind that any range apparent from the statistics, even enhanced by reference to some comparable cases, does not fix the proper range for sentencing. The only proper range is the range fixed by Parliament, which here, having regard to the broad range of criminality encompassed by s.112(2), ranges upwards to 20 years imprisonment. A reference to the comparative information, however, leaves me with the firm impression that the sentence imposed by the primary judge was a very stern one indeed, not that sternness itself bespeaks excess. But when one considers the objective criminality of the offending, accepting that this consideration in the present case should not be either downplayed or understated, one is left with the conclusion that the degree of objective criminality involved in the two specific cases to which I have referred involving actual sexual assault, and in YS attendant physical violence, is much more serious than the criminality involved in the present case. 61It can also be observed that the objective criminality exhibited by the present offending, in the scheme of things, is less serious than those three cases where the aggravating factor was assault with a weapon: in two cases a knife, and in the third a metal pipe. 62The subjective features of the offender that are required to be taken into account in determining the sentence to be imposed in the present case, and the offenders in Shillingsworth and YS, are broadly similar. However, I acknowledge that YS was minor when he committed the like offence, and there was evidence before the court that when sentenced he was suffering from mental illness. 63In YS, Rothman J (with whom McClellan CJ at CL (as he then was) and Howie J agreed) referred to the principle of totality at [38] and said (citations omitted): ... the applicant will have served, assuming he is released when first eligible for parole, a period of 6 years and 3 months for two counts of robbery in company, one count of aggravated enter dwelling with intent and one count of aggravated break and enter and commit serious indictable offence, namely sexual assault. I do not consider that such a total sentence is inappropriate for the totality of the criminal conduct involved. 64Leaving aside the period of one month on parole in 2009, as at the time the subject offences were committed, if the sentence below remains and the offender is released when he is first eligible (as he was not in respect of the prior offence) he will have served from 12th July 2004 to 24th November 2015, eleven years, four months and twelve days for one offence of aggravated robbery, one offence of destroying property and the present offence of aggravated break, enter and commit serious indictable offence, namely indecent assault, always bearing in mind the offences in the Form 1. 65I confess to a feeling of some uneasiness about whether, in fixing the sentence below, the primary judge impermissibly factored in a degree of preventative detention; but I put that to one side for, as I have said, it is not clear how the reference to Veen [No. 2] affected the decision. 66For the aforegoing reasons, I am satisfied that the sentence imposed was manifestly excessive. 67I would also uphold the offender's third ground. To some extent, this is the obverse of ground 1, but it does seem to me that his Honour inverted the process when he came to re-sentence the offender on the 1st of April 2010 by considering the question of accumulation and totality first, and only then re-fixing the sentence: see R v Hammoud (2000) 118 A Crim R 66 at 67 per Simpson J. Even though, as I have said, Pearce is of particular application when one is sentencing an offender simultaneously for multiple offences, the principles discussed in the passage I have set out at [48] above are of general application, and are certainly applicable when a person serving a current sentence comes before the court for another offence.

Should the Court remit or re-sentence? 68Error has been established in the sentencing process at first instance. In light of the offender's success on the manifest excess issue, in particular, I am of the opinion, in accordance with s.6(3) Appeal Act, that another, lesser, sentence is warranted. This however raises the question whether this Court should remit or re-sentence. 69Ms. Francis argued this Court should exercise it's power under s.12(2) Appeal Act to remit because it does not have all the material necessary for it to re-sentence. She argued that the relevant information included the reasons of his Honour Judge Coorey, which would set out the circumstances of the previous offending and provide information which may therefore be relevant to the questions of concurrency, accumulation and totality. Moreover, the suggestion that mental illness may have been diagnosed could be highly relevant in the manner discussed most recently by the High Court in Muldrock. 70Notwithstanding these matters, I have formed the view that it is in the interests of justice, and of the administration of justice, that this Court proceeds to re-sentence on the information presently available. The subject offences were committed in April 2009. The offender was first sentenced on 4th March 2010 and he has been in custody since 30th April 2009. Admittedly, up until 4th March 2010 his incarceration was solely referrable to the revocation of the parole order in respect of his previous sentence. 71However, it follows that the courts of this State have already considered matters relevant to the appropriate sentence to be served by the offender for the principal offence on three occasions. To remit will engage the resources of the judicial system on a fourth occasion and involve yet further delay in finalising the matter. Delay not only works against finality in litigation, but also will increase the apprehension and anxiety no doubt suffered by the offender. Furthermore, even though I have concluded that a lesser sentence is warranted, there is an aspect of undesirable uncertainty in leaving the process of re-sentencing in abeyance. 72It is not irrelevant, in this context, to consider that the sentence imposed by Judge Coorey in fact expired on 11th December 2010. 73In so far as marshalling evidence now to bolster the offender's subjective case is concerned, I have formed the view that additional delay for that purpose is not justified. The sentencing judge commented on the absence of a pre-sentence report when the matter was before him on 4th March 2010. Notwithstanding the implicit suggestion, no application for an adjournment was made. Nor was the opportunity taken, when the matter had to be reopened under s.43(2) Sentencing Act, to put further material before the sentencing judge. No additional evidence of a kind frequently seen on the hearing of matters of this type was put before the Court. There is simply no material from which I could infer that additional cogent evidence is available that is likely to make a material difference to the outcome, although I accept implicitly the sincerity of counsel in relaying her instructions to the Court. 74In my judgment, it is far better for all concerned for this Court to re-sentence. 75I remind myself that the principal offence is a serious one, carrying a standard non-parole period of five years and a maximum term of 20 years imprisonment. The objective seriousness of the offence is significant. As the primary judge, with respect, correctly pointed out, the offence involved a degree of premeditation and planning. Although the offender attempted to persuade the complainant to allow him entry to her home, he persisted with his intention of gaining entry, and by force, when she refused and asked him to go away. The offence was clearly sexually motivated. However, on the scale of criminality of offences having a sexual component, connotation or complexion, the instant offence falls short of an actual sexual assault such as was involved in either Shillingsworth or YS. Giving full weight to the fear the complainant must have suffered and the violation of her personal integrity, no actual physical harm or injury was inflicted. It is not irrelevant that the offender desisted and fled when the complainant screamed for help. 76Obviously the case falls nowhere near a worst category of s.112(2) offence and I would rate it in a lessor category than offences like Shillingsworth, YS and offences involving the infliction of actual, or grievous, bodily harm involving the use of a weapon. 77The offender's antecedent criminal history and the offences on the Form 1 demonstrate that in his commission of the instant offence, the offender is manifesting a continuing attitude of disobedience to the law, although, as I have said earlier, I would not regard offences having a sexual connotation as characteristic of his prior offending. Nonetheless considerations of retribution, deterrence (both general and personal) and protection of society all indicate that a penalty of some severity is warranted. 78I interpolate that the availability of evidence about a mental illness, or some congenital mental difficulty, would not necessarily make any difference to the outcome. Proof of such a matter may diminish moral culpability and attenuate the consideration of specific deterrence: Veen [No. 2] at 477. But it may at the same time bring the consideration of protection of society into sharper focus. 79I have taken into account that the offender was on conditional liberty when the primary offence was committed, and that as a single woman in her home at night, with a young daughter to worry about, the complainant was in a position of considerable vulnerability. 80Like the primary judge, I think it appropriate to take into account the offender's late plea. Without downplaying the assault, I reiterate that the complainant received no actual physical injury but I am satisfied that she suffered emotional harm. Also, the applicant's unfortunate background, which I have recounted, should be taken into account in his favour. 81For my part, in the exercise of my own discretion in relation to sentencing, unlike his Honour, I would find that there are special circumstances justifying an alteration in the statutory ratio fixed by s.44(2) Sentencing Act. As the offender argued in his written submissions, since turning eighteen years of age on 20th October 1998 "the offender has spent all but one and a half years of his adult life in gaol". I set out the table appearing at the foot of page twelve [49] of the written submissions illustrating the point. Year At liberty 1999 - 2000 3 months 2002 34 days (21 days as an escapee) 2003-2004 8 ½ months 2009 1 month

82I appreciate his Honour was not convinced that the offender had become "institutionalised" in the absence of expert evidence supporting the offender, but my view differs. The mere recitation of the objective facts satisfies me, although I accept that minds may reasonably differ about this, of a significant degree of institutionalisation. This factor constitutes special circumstances because it loudly bespeaks his clear need for extended, perhaps relatively close, supervision once he is conditionally released into the community: R. v. Sutton [2004] NSWCCA 225 at [30] per Howie J. 83Like the primary judge I consider that the commission of the offences on the Form 1, each having a sexual connotation, are a matter of real concern leading to a need to impose a heavier sentence than might have been appropriate otherwise having regard to all other facts, matters and circumstances to which I have referred: Attorney General's Application at 155 [18]-[19] and 159 [42] per Spigelman CJ. 84The Judicial Commission sentencing statistics and the comparative sentences, which I have already set out in detail, are also relevant. Once again, I acknowledge that care must be taken in the use of them. As Simpson J pointed out in De La Rosa at 71 [305]: In the end the sentencing discretion is individual: it must be exercised by the individual judge in respect of the individual offender. 85Bearing all these considerations in mind, and allowing a 10% discount for the offender's late plea, the sentence that I consider appropriate to the circumstances of the offence, taking into account the Form 1 offences, and the circumstances of the offender, is one having a non-parole period of three years and ten months (46 months) and, to take account the need for extended supervision, as I have said, an additional term of two years and six months (30 months). The total term of imprisonment is therefore six years and four months. 86I turn then to consider the questions of concurrency, accumulation and totality. I bear in mind that the previous parole was revoked and that at the time he was first sentenced on 4th March 2010, the offender was serving the balance of the term set by Judge Coorey. Other than that the sentence was for an offence of "aggravated robbery", nothing is known of the circumstances of that offence. It should be observed again that the offender was not released on parole when he first became eligible for a parole order. Whilst serving that term, he was sentenced to a concurrent term of imprisonment for an offence of destroying, or damaging, property. It can be said however, that from 4th March 2010, when the first sentence of the primary judge was imposed, the offender's previous offending was not the only explanation for his imprisonment. I consider it appropriate to commence the sentence I will impose from that date pursuant to s.47(2)(a) Sentencing Act. This will allow a degree of partial accumulation on the previous sentence, at the same time taking account of the separate criminality involved in the instant offending. 87Considering the question of totality, the offender will not be eligible for release before 3rd January 2014 and, if it is necessary for him to serve his full term, he will not be released until 3rd July 2016. Leaving aside the one month of conditional liberty in April 2009, this represents, in the event, a minimum overall period of imprisonment of nine years and five months and a maximum overall period of imprisonment of eleven years and eleven months for the offences of aggravated robbery, destroy property and aggravated break, enter and commit indecent assault (taking into account the Form 1 offences). I regard the principle of totality as thereby properly engaged. 88The orders I propose are: (1)I grant leave to appeal. (2)Allow the appeal. (3)Quash the sentence imposed on the applicant by the District Court on 1st April 2010 and instead sentence the applicant to a non-parole period of 3 years and 10 months imprisonment taken to have commenced on 4th March 2010 and expiring on 3rd January 2014, with an additional term of 2 years and 6 months imprisonment commencing on 4th January 2014 and expiring on 3rd July 2016; the earliest date for release on parole is therefore 3rd January 2014.

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