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.