Wray v Regina

Court of Criminal Appeal (NSW)|2007-03-14|Before: McClellan CJ, Hulme J, Hislop J, Clellan CJ

These proceedings are subject to the limitations upon publication and/ or broadcasting imposed by section 11 (1) of the Children (Criminal Proceedings) Act 1987 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HULME J: I have the advantage of reading the Reasons for Judgment and orders proposed by Hislop J. I agree with the orders proposed and with his Honour's reasons save and except for that part entitled "Significant Administrative Miscarriage". On that topic, I prefer to express my own views. 3 The Applicant claims that he is effectively being deprived of much or all of the period on parole he could reasonably expect to receive under sentences the effect of which was a full term of 7 years of which only 5 years and 3 months was a non-parole period because of a policy or practice of the Parole Authority. In that connection he deposes to having "been informed by the officers of Corrective Services that it is likely that I will have to serve the total sentence of 7 years as I will be ineligible to do the course which they consider relevant to my offending behaviour as I deny the offence". His affidavit in this regard was responded to by one from an officer of the Department who annexed a report which included the following:- "The Sex Offenders Programs in the Department of Corrective Services work on the principle that the inmate is guilty of the offence/s to which he has been incarcerated. All appropriate inmates are encouraged to fill out the application form for the Sex Offenders Programs. The application is designed to assist the psychologist in determining the level of risk of re-offending (ie high medium or low). This level of risk will determine which program suits the inmates needs. In the case of sexual offenders, dynamic risk factors represent those factors which need to be identified and managed in order to reduce the risk to others or potential victims. As Mr Wray denies the sexual offences to which he has been convicted of, it is not possible to develop an understanding of his dynamic risk factors. Dynamic risk factors are those which directly relate to the sexual offending behaviour. Whilst static risk factors can be obtained via a review of relevant documentation (eg criminal history, depositions) understanding dynamic risk factors requires the offender to be willing to discuss his thinking patterns, how he dealt with his emotions, lifetime patterns and how he created the opportunity to offend. Examination of the pattern of offending is also important to enable high risk factors to be identified so that management strategies can be developed to minimise those risk factors, if possible. An offender who denies his offending behaviour will not recognise all the factors that led up to and contributed to his offending. Therefore he will not have developed the management strategies needed to deal with those risk factors related to his offending. A court of law has stated that the inmate is guilty of the offence he is incarcerated for. An inmate's denial of the offence is not an issue. In addressing No. 3 although I do not have knowledge of the conversations that Mr Wray had with officers in the department at Junee. I would assume that the officers would know that a requirement of parole is for all inmates to address their offending behaviour. Knowing Mr Wray had not addressed his offending behaviour, they may have assumed it would be more difficult for Mr Wray to be granted parole on his earliest release date." 4 In many respects this evidence is consistent with that placed before the Court in other cases including Galli v NSW State Parole Authority [2006] NSWSC 206, Esho v Parole Board Authority of NSW [2006] NSWSC 304, DCU v State Parole Authority of New South Wales [2006] NSWSC 526, Lee v State Parole Authority of New South Wales [2006] NSWSC 1225, and Gulliford v New South Wales State Parole Authority [2006] NSWSC 1230. See also the illuminating discussion of the topic in Varney v Parole Board (WA) (2000) 23 WAR 187. Bearing on the harshness or otherwise of the conditions under which a sentence is served, the practice of the Parole Authority it is something of which the Court is entitled to take judicial notice or inform itself - see R v Hallocoglu (1992) 29 NSWLR 67 at 73-4; R v Henry (1999) 46 NSWLR 346 at 366. 5 Although the evidence varied from case to case and was directed primarily to the situation of each of the offenders involved it seems clear that, irrespective of an offender's conduct since sentence in other respects, if an offender convicted of a sex offence or one involving violence fails to participate in a departmental program directed to dealing with tendencies apparent in such an offence, he will not be granted parole at the end of a non-parole period and quite possibly not released until the expiration of the full sentence. Furthermore, if an offender denies his guilt or, except for reasons over which he has no control - see Esho v Parole Board Authority of NSW at [48], is regarded as unable to benefit from a program, the probabilities are that he will not be permitted to participate, with the consequences to which I have referred. 6 Sentencing practice requires that, at least as a general proposition, in determining the sentence in a particular case, a court take into account in addition to the objective circumstances of an offence and the usual subjective circumstances of an offender matters which are calculated to make imprisonment bear more harshly on the offender than offenders generally. Such matters include physical health and disabilities - R v Azar [2000] NSWCCA 26 at [14], R v Gould [1999] NSWCCA 177 at [24]; inability to speak English (unless the offender has come to Australia with a view to committing the offence) - Huang (2000) 113 A Crim R 386 at [18] - [19]; whether the offender is liable to spend his time in prison in conditions harsher than the norm, for example on protection, and the quality or incidents of the particular form of protection likely - York v R (2005) 79 ALJR 1919, R v Perez-Vargas (1986) 8 NSWLR 559 at 563, R v Sukkar [2006] NSWCCA 92 at [5]; Similar sorts of judgments are undertaken when an offender has or will spend time in heavily restricted conditions of bail or in rehabilitation - R v Cartwright (1989) 17 NSWLR 243 at 258, R v Delaney (2003) NSWLR 1(DR), Fowler (2003) 151 CLR 166 at [242]. 7 In R v Hallocoglu it was regarded as relevant that a sentence of periodic detention was no longer to be spent for its duration in periodic detention but partly in that way and partly by way of community service. 8 The portion of a sentence spent in actual custody is undoubtedly harsher than time spent on parole. Given that other factors bearing on the harshness on a sentence are taken into account in the determination of its length, there is much to be said for the view that, if the evidence justifies the conclusion that a particular prisoner will not be granted parole (or granted it for a significantly shorter period than envisaged by the sentence), that fact should be taken into account. 9 However, in Regina v Reyes [2005] NSWCCA 218 the Court refused to regard such a situation as one to be taken into account as a reducing factor in the assessment of a sentence, at least in circumstances where the reduction in the period of offender would be released on parole was due to the offender continuing to deny his guilt. Hislop J has set out in full the passage of the judgment of Grove J in that case dealing with the topic and it is undesirable that I do so more than is necessary to make my observations understandable. 10 Grove J, with whom Wood CJ at CL and Hoeben J agreed, gave 2 reasons for rejecting the claim. His Honour said, at [74 - 75]:- "The core of jurisdiction to impose any sentence is guilt of the offender. It is an election of the offender not to accept guilt but it would be inconsistent with the task of the sentencer to make an assessment other than on the basis that guilt has been proved beyond reasonable doubt. … It requires little imagination to postulate a situation that, if a persistent claim of innocence after conviction were maintained and this attracted a reduction in sentence, an offender could adopt that position but, after receiving the discounted sentence, alter his stance, undertake a CUBIT program and earn release from the shortened sentence. Once sentence is passed (absent express legislation such as applies to persons who renege on offers to assist law enforcement authority) there is no facility for cancelling a discount received by a manipulative offender." 11 I have some difficulty with both of these reasons. I do not see that recognition of what will, or is likely to occur, involves the assessment of which Grove J spoke. Furthermore a court faced with a claim such as his Honour envisaged could eliminate the dangers of an alteration in stance to which reference was made by imposing longer non-parole and shorter balances of term than it might otherwise have done, recognising in doing so that imprisonment is harsher than parole.

12 There are other considerations that arise. As had statutes before it, the Crimes (Sentencing Procedure) Act contemplates that in the ordinary course of imposing a sentence, a court will set 2 periods, a minimum and a maximum term. Both are determined as merited by the offence under consideration taking into account its objective circumstances and the relevant subjective circumstances of an offender, the non-parole period being the minimum period of incarceration that a court determines as required and the maximum being the outer limit of custody merited.

13 There is no fixed relationship between these terms. A court has a discretion to vary the relativity between the 2 periods, increasing or reducing the difference. Commonly an increase will be at the expense of the minimum term but as all periods are set in the course of the one mental activity on the part of a sentencing judge, it may well be that increasing the difference may operate to increase the maximum sentence, albeit keeping it within the appropriate range of a proper sentencing discretion. The emphasis on non-parole periods provided by Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act, providing for standard non-parole periods, may tend to exacerbate this effect. A reduction in the "balance of the term", to use the language of s44 of the Act, will tend to have an opposite effect on the other periods.

14 While if the matters referred to in the immediately preceding paragraph are ignored and the determination of relevant period proceeds simply as contemplated in the paragraph before that, the practice of the Parole Authority would seem irrelevant, when regard is had to the length or significance of any balance of term, account should be taken of the practice. There may, for example, be little point in providing any, or an extended, balance of term if it can be predicated that an offender will not be admitted to parole. 15 The practice of the Parole Authority to which I have referred, is a reason why counsel and sentencing judges should perhaps consider more carefully than sometimes occurs the relativity between the non-parole or minimum and maximum terms. Section 44 of the Crimes (Sentencing Procedure) Act precludes a balance of term exceeding one-third of the non-parole period unless the court decides there are special circumstances but imposes no limitation on the balance of term being less than one-third. Nevertheless it is very rare for that to occur and if a judge is not disposed to increase the proportion, it seems to be almost automatic, and without reasons, for a balance of term of one-third to be imposed. 16 Of course, it will be a rare case where, at the time of sentence, any such prediction, at least with any reasonable degree of firmness can be made. The fact that an offender pleads not guilty, while consistent with maintaining a stance which, in light of the Parole Authority's practice, is likely to lead to parole being refused or attenuated if the offender is convicted, is little evidence that the stance will not change. 17 It may well also be that any conclusion that an offender would not be granted parole has as a corollary both that the Parole Board would consider him, and he would in fact be, at significant risk of re-offending and someone who is unable to readjust to community life and therefore someone whose sentence should reflect added emphasis on personal deterrence, and protection of the community. 18 Furthermore, while I regard the matters to which I have referred as relevant, dominating the topic is the fact that for the sort of offences under consideration here the penalty prescribed by Parliament is imprisonment and, so long as a non-parole period imposed by a particular sentence is not excessive when the circumstances are considered in light of the statutory standard, the fact that its operation may have been ameliorated in other circumstances, such as an acceptance of guilt or the availability of programs, does not make that period unfair. 19 Normal sentencing principles mean that in the determination of a non-parole and maximum term, a sentencing judge will take into account his best prognostication about an offender's prospects of rehabilitation including the matters encompassed within the Crimes (Administration of Sentences) Act 1999 paragraphs (a) and (f) of s135 and paragraphs (a) and (d) of s135A. However, the statutory scheme means that these things will be looked at again by the Parole Authority together with the other matters to which the sections refer. This will always occur closer, and generally far closer, to an offender's release date than the time at which sentence was pronounced and commonly with the benefit of information additional, and certainly later, than that possessed by the sentencing judge. 20 The purpose of release on parole after the expiration of a non-parole period is "to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate …" - Power v R (1974) 131 CLR 623 at 629. One of the functions of the minimum and maximum periods is to provide an interregnum during which the Parole Authority has scope for exercising its discretion. 21 Of course, under s45 of the Crimes (Sentencing Procedure) Act a judge may decline to set a non-parole period. He may, as has been mentioned, set a very short balance of term and in these ways remove or severely circumscribe the scope for operation of the Parole Authority's discretion. However, when regard is had to the statutory scheme apparent in the Crimes (Sentencing Procedure) Act and the Crimes (Administration of Sentences) Act, and in particular the ambit of the matters listed for the consideration of the Parole Authority, it would be a rare case where a judge was justified in sentencing an offender in a way which did not include some balance of term or period when an offender would be eligible for parole. 22 I turn then to the particular circumstances of the Applicant. Included in the appeal papers was a deal of material dealing with the Applicant's efforts to be admitted to programs and with the parole authorities' assessments of him. These papers showed, inter alia:- On 9 November 2004, the Applicant applied to join the "CUBIT, CORE and Custodial Maintenance Programmes" On 30 November 2004, the Applicant's application for leave to appeal to the High Court was dismissed. On 18 April 2005 the Applicant was advised that he had been found unsuitable for the programmes because he was then appealing. In May 2005, according to later notes, the Applicant completed a preparatory program "Understanding Sexual Offending"; On 16 September 2005, the Applicant applied again to join the "CUBIT, CORE and Custodial Maintenance Programmes". A file memo of 27 December 2005 refers to the application of September and records that because the Applicant "adamantly maintains he not guilty plea he cannot be accepted into the program". A letter of 10 February 2006 from the department to the Applicant observes that given his record shows a prior conviction for a sexual offence in 1991, and that there were not specialised programs available at that time it might be possible for him to be accepted if his application dealt with that earlier offence (and presumably in a way that accorded with the department's attitude). A letter of 23 June 2006 from the Department to the Applicant records that he had stated that he believed he had resolved all issues in respect of the earlier offence. A memo of 25 July 2006 to the Applicant records that he had been found suitable for the CUBIT program which ran for approximately 6 to 10 months. Handwritten notes on the document, presumably from the Applicant, indicate that he was unhappy at this occurring so close to the expiration of his non-parole period. Another memo of 16 August 2006 said "At this stage, you are "unsuitable for institutional treatment programs for sexual offenders whilst appealing your sentence. In order to enter the CUBIT/CORE program, your appeal must be resolved first." A Pre-Release report of 16 August 2006, obviously prepared in connection with a Parole Authority meeting of 15 September, made a number of comments adverse to the Applicant's suitability for parole. Given the difference in purpose and having regard to reservations I have as to the expertise of the author as to matters relevant to sentence it is proper in this Court to disregard most of what was said. However, it is relevant to note that the document records that "A Static-99 risk assessment undertaken by psychology staff assessed Mr Wray as representing a moderate- high risk of sexual recidivism".

23 Such comfort as the Applicant may derive in having taken into account the fact that he has not been granted parole and is likely not to be for at least some time, is at least offset by this opinion as to his risk of re-offending. The fact that the sentences under appeal are also the Applicant's second set of convictions itself argues strongly in the same direction. These factors have contributed substantially to my conclusion that the sentence proposed by Hislop J is appropriate. HISLOP J:

Introduction 24 The applicant was charged on indictment on the following counts: 1. On or about 26 October 1997, at Old Bar in the State of New South Wales, he did have sexual intercourse with R, she being then aged 15 years.

On or about 30 October 1997, at Old Bar in the State of New South Wales, he did have sexual intercourse with R, she being then aged 15 years.

Between 26 October 1997 and 1 February 1998, at Old Bar in the State of New South Wales, he did assault R, thereby occasioning actual bodily harm to her contrary to the Crimes Act 1900 section 59 - maximum penalty imprisonment for 5 years.

Between 1 February 1998 and 31 March 1998 at Old Bar in the State of New South Wales, he did assault R, thereby occasioning actual bodily harm to her contrary to the Crimes Act 1900 section 59 - maximum penalty imprisonment for 5 years.

Between 1 May and 31 May 1998 at Old Bar in the State of New South Wales, he did assault R, thereby occasioning actual bodily harm to her contrary to the Crimes Act 1900 section 59 - maximum penalty imprisonment for 5 years.

Between 1 May and 31 May 1998, at Old Bar in the State of New South Wales, he did have sexual intercourse with R, she being then aged 15 years contrary to the Crimes Act 1900 section 66C - maximum penalty imprisonment for 8 years.

On or about 10 October 1998 at Old Bar in the State of New South Wales, he did assault R contrary to the Crimes Act 1900 section 61 - maximum penalty 2 years imprisonment.

On 7 February 1999, at Old Bar in the State of New South Wales, he did have sexual intercourse with R, without her consent, knowing that she was not consenting thereto contrary to the Crimes Act 1900 section 61(1) - maximum penalty 14 years imprisonment. 25 The applicant pleaded not guilty to each count. 26 On 15 August 2001 a District Court jury found the applicant guilty on counts 3 to 8 inclusive. Not guilty verdicts were entered in respect of counts 1 and 2. 27 On 16 August 2001 the applicant was sentenced in respect of the offences of which he had been found guilty as follows:

Count 8: imprisonment for 7 years to commence on 15 August 2001 and expire on 14 August 2008 with a non-parole period of 5 years and 3 months to expire on 14 November 2006.

All sentences were concurrent and commenced on 15 August 2001. 28 The sentencing judge found that the circumstances of the offences were, in essence, as follows: R was born on 25 August 1982. She left home at age 14. At age 15 she commenced to reside in a caravan on a property owned by the applicant. The applicant was born on 21 June 1953. He lived in a house on the property. A relationship developed between R and the applicant. Full sexual relations commenced between them after a short time and a dimension of violence developed within the relationship. The count 3 offence occurred when R backchatted the applicant and he began to hit her, grabbed her and pushed her causing her to fall down and hit her head on the side of the bed resulting in loss of consciousness. She said she had bruises all up her arms and around her neck. The count 4 offence occurred when an argument developed and R was punched dragged and pushed around suffering bruising to her upper body, arms, chest and head. The count 5 offence occurred when the applicant held R against the wall by her throat receiving a full hand bruise around her neck and bruises on her upper arms. The applicant later dragged her by her hair to the back door and threw her down the steps. The count 6 offence involved penile/vaginal intercourse when R was aged 15. The count 7 offence occurred when the applicant and R were pushing each other around though no injury was sustained. The count 8 offence occurred on 7 February 1999 in another house on the applicant's property. By the time of that offence R had ceased to reside on the applicant's property though there had been episodes of contact between the parties which were initiated on either side and lacking in acrimony. R resisted the applicant and made her lack of consent very clear to him. He, undeterred, continued until sexual intercourse was complete. 29 The applicant appealed to this Court as to conviction and sentence. A sentence affidavit was prepared and affirmed by the applicant on 11 April 2003. The affidavit stated, in part: 2. I have served my sentence so far in protection. I believe I will have to remain in protection for the remainder of my sentence. 3. I have been informed by the officers of Corrective Services that it is likely that I will have to serve a total sentence of 7 years as I will be ineligible to do the course which they consider relevant to my offending behaviour as I deny the offence. 30 Mr Hodgetts, the Governor of the Metropolitan Special Programs Centre at the Long Bay Prison Correctional Complex swore an affidavit on 13 August 2003. The affidavit annexed a letter from the Office of the Director of Public Prosecutions and Mr Hodgetts' response dated 12 August 2003. This affidavit was in response to that affirmed by the applicant on 11 April 2003.

31 At the hearing of the appeal counsel for the applicant informed the Court: Conviction and sentence appeals have been filed. There is no appeal against sentence per se, however, if the appeal is partially successful which could only be determined once judgment has been delivered, then I seek to rely on the sentence affidavit. 32 On 1 October 2003 this Court dismissed the conviction appeal. As to the sentence appeal Grove J (with whom the other members of the Court agreed) said: [36] Application was made for leave to appeal against sentence and counsel expressly stated that there was no appeal against sentence 'per se'. That concession was appropriate as it can be noted that the applicant's record includes sentences of minimum and fixed terms of 2 years and 5 months imposed in 1991 for offences of threatening to inflict actual bodily harm with intent to have sexual intercourse and sexual intercourse without consent. The application was made to accommodate the eventuality that the appeal was partially successful and acquittal was substituted for conviction on some counts only. [37] I would dismiss the appeal and refuse leave to appeal against sentence.

33 On 5 December 2003 the applicant sought special leave to appeal to the High Court. The application sought that the convictions be quashed and verdicts of acquittal entered or, in the alternative, a new trial ordered. Special leave was refused. 34 On 8 September 2005 an application for a review pursuant to the Crimes Act 1900 s 474D was refused.

35 On 31 July 2006 this Court received a notice of application for leave to appeal and for extension of time for seeking such leave. The application for extension of time stated:

The application for leave to appeal was not given within 3 months of conviction or sentence, or during the period within which a notice of intention to appeal or to apply for leave to appeal had effect, for the following reasons: 1. Fresh evidence has become available but was not available till recently;

This fresh evidence has only recently become provable beyond doubt;

Changes to the Crimes - Administration of Sentences Act 1999. In October 2005 (parole system reform) has changed the nature of my sentence and my eligibility for parole. This was not the situation till recently. 36 The court had earlier received from the applicant, on 13 June 2006, a document headed grounds of appeal which identified the following grounds: 1. Fresh evidence (has since CCA refused leave to appeal against sentence CCA 60581/01) has become available that was not available.

False and misleading evidence via affidavit was lodged on 12/8/2003 (marked 'A' and 'B') to CCA against my sentence appeal. This has only recently become provable beyond doubt.

My legal representatives did not present my sentence appeal, as instructed, to the Court.

37 Subsequently the applicant lodged a number of written submissions. In particular in a document dated 4 May 2006 and headed submissions on sentence he submitted: (a) Leave to appeal against sentence was not heard yet refused; (b) My legal representatives did not present my sentence appeal as instructed before the court; (c) I filed an affidavit dated 11 April 2003 which I relied upon in relation to my appeal on sentence, requesting a reduction because I have been placed into strict protection and would be disadvantaged and deprived which has changed the 'nature' of my sentence and eligibility when applying for parole at my earliest release date of 14 November 2006. This has since proven true and was not the intention of the sentencing Judge; (d) There was an error in sentencing in that it did not comply with Pearce; (e) 2 affidavits were filed 12 August 2003. I now have proof certain matters in the affidavits contain false and misleading statements which were known to be so at the time of writing. 38 Further submissions of the applicant dated 22 February 2007 state: My submission is based on significant Administrative Miscarriage, which has already happened during the course of my sentence (was not available to the defence or sentencing judge) which has continued regardless of remedies being brought to various parties' attention … I have consented to and applied to do all programs and have been denied entry due to the wrongful application of legislation/policy. 39 The applicant represented himself at the hearing of this matter. The application to extend time, the grounds of appeal and the written submissions were prepared by the applicant.

40 It was accepted by the respondent that there had been no determination on the merits of the application for leave to appeal against sentence in 2003. 41 The initial issue therefore was whether the court should exercise its discretion to grant an extension of time to permit the application for leave to appeal against sentence to be made, the application being some years out of time. 42 The applicant was funded by Legal Aid in the Court of Criminal Appeal in 2003. The legal representatives of the applicant at that appeal gave evidence on the present application. It emerged from that evidence that counsel had concluded the prospects of an appeal against conviction were good but that the sentence was within the range available to the sentencing judge and there was no reasonable prospect of a reduction in it. He advised Legal Aid there was no merit in the sentence appeal unless the appeal against conviction was partially successful. Accordingly, the focus of the legal representatives was upon the conviction appeal and it was not explained to the applicant, adequately or perhaps at all, that he was entitled to pursue a sentence appeal irrespective of the fate of the conviction appeal and independently of the refusal of legal aid for that purpose. 43 The applicant said that at all times he wished to pursue an appeal against sentence if the conviction appeal failed. This was confirmed by his former legal representatives. 44 The respondent did not submit that any relevant prejudice resulted from the delay in seeking leave. 45 In my opinion the circumstances are such as to justify an extension of time in which to pursue an application for leave to appeal against sentence. Accordingly I propose that the application for extension of time in which to seek leave to appeal against sentence be granted and that consideration be given to the substantive issues which have been raised. Sentence appeal not presented as instructed 46 The applicant asserted that he had understood the 2003 appeal to this Court was against both conviction and sentence and that his affidavit affirmed on 11 April 2003 would be read in the Court and would be relied upon by his legal representatives.

47 As appears from paragraphs 31 and 32 hereof the Court of Criminal Appeal was informed that the sentence appeal was only to be enlivened if the conviction appeal was partially successful. As the conviction appeal was wholly unsuccessful the merits of the sentence appeal were not dealt with and there was no reliance on the affidavit affirmed on 11 April 2003. The substantive issues raised by paragraphs 2 and 3 of that affidavit are considered later in this judgment.

False evidence 48 The applicant submitted that some of the comments made in the annexure to Mr Hodgetts' affidavit were false and misleading and this had only recently become provable beyond doubt. 49 Mr Hodgetts' affidavit was prepared in response to the sentence affidavit of the applicant affirmed 11 April 2003. As the sentence appeal was not pursued at that time Mr Hodgetts' affidavit and the annexures thereto were not considered by the Court. The contents of Mr Hodgetts' affidavit and the applicant's sentence affidavit are before the Court on this application. I therefore turn to the issues raised by the applicant's sentence affidavit and the "Pearce" issue.

Protection 50 The applicant in his affidavit affirmed 11 April 2003 stated that he had served his sentence so far in protection and believed he would have to remain in protection for the remainder of it. He submitted that this would not have been foreseen by the sentencing judge when passing sentence and that his sentence should be adjusted accordingly. 51 Generally speaking, it is appropriate for a sentencing court to take into account the circumstance that a sexual offender may spend his custody in conditions subject to some form of 'protection' status - R v Scott [2003] NSWCCA 28. This requires that, at the time of sentence, the court make some prediction about the nature of the custody that will be endured by the prisoner - R v Mostyn (2004) 145 A Crim R 304 at [179].

52 However, as appears from his Remarks on Sentence, the sentencing judge had accepted the submission that: … although only having spent one night in custody he is already in protective custody and can expect to spend at least a portion of his sentence in that form of custody. That [the applicant] has fears for his safety and in the light of the evidence that has been given in the trial there have been threats made to him and indeed to his solicitor.

53 It is apparent that his Honour anticipated at that stage that the conditions of the applicant's custody in protection would be likely to be harsh. His Honour took that circumstance into account when sentencing the applicant. This was appropriate. No error in this regard is apparent. The applicant has spent much of his sentence at the Metropolitan Special Program Centre. As Bell J observed in Scott at [34], the concerns of 'protection' status would seem to be significantly lessened for sexual offenders who are placed in special facilities such as the MSPC. Pearce 54 His Honour, in assessing the appropriateness of sentence, said he took into account the relationship that existed between R and the applicant and that both the sexual offence counts and the assault counts were representative counts. He proceeded to indicate individual sentences for each count which he assessed having regard to the record of the applicant and the representative nature of the counts but otherwise treating them as separate matters. 55 The individual sentences which his Honour indicated coincided with those ultimately imposed on each count save for count 8. As regards count 8 his Honour indicated a sentence of 6 years imprisonment but imposed a sentence of 7 years imprisonment. His Honour explained his reasons for so doing as follows: Accordingly I do include consideration of this offence [count 8] as part of the total criminal conduct rather than as a separate and discrete one. As that offence carries the most serious penalty it is on that offence I will impose the overall head sentence. No discount is accorded because the pleas were of not guilty. In reaching the conclusion as to the overall appropriate sentence I have come to the view that it will be seven years imprisonment. 56 In Pearce v R (1998) 194 CLR 610 at 624 it was held: 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.

57 This Court has interpreted Pearce as prohibiting the practice of increasing a sentence for one offence merely to reflect the totality of the criminality disclosed by all of the offences for which sentence is being passed - R v Knight [2004] NSWCCA 145, see also R v Hammoud (2000) 118 A Crim R 66 at [67 - 68], R v AEM [2002] NSWCCA 58, McNaughton v R (2006) 163 A Crim R 381, and R v JRD [2007] NSWCCA 55 at [27] and [28]. His Honour thus fell into error in increasing the indicated sentence on count 8 to 7 years. 58 However the principle of totality requires that the effective sentence imposed upon an offender represent a proper period of incarceration for the total criminality involved - AEM at [70]. 59 His Honour considered that the total criminality involved required a sentence of 7 years imprisonment with a non-parole period of 5 years and 3 months. This conclusion was consistent with sentencing statistics to which his Honour had regard and, in my opinion, was correct. That end result could and should have been achieved by his Honour finding special circumstances by reason of the accumulation of sentences and adjusting the commencement date of the sentences in such a way that the ultimate overall sentence of 7 years with, effectively a non-parole period of 5 years and 3 months was achieved, 60 I would uphold the appeal on this ground, find special circumstances by reason of the accumulation of sentences, and adjust the sentence in relation to count 8 so as to reflect the principle in Pearce and his Honour's assessment of the overall criminality. Significant administrative miscarriage 61 The applicant, in his written submissions, asserted there had been administrative failures to adhere to policy, breaches of procedures, failure to act in a timely or equitable fashion and the like in relation to his sentence. 62 Generally speaking, a court will not intervene in relation to such matters. As Street CJ said in R v Vachalec [1981] 1 NSWLR 351 at 353 - 354: … as an Appeal Court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government. Administrative miscarriage in the working out of a sentence cannot be remedied by this Court as it has no jurisdiction to enter the administrative field. See also R v Munday (1981) 2 NSWLR 177 at [178] C-D. 63 Further, Street CJ acknowledged: There could, of course, be cases where significant administrative miscarriage was so plainly foreseeable at the time of sentence as to justify this Court finding error in the sentencing decision of the first instance Court. Such cases will be rare. 64 The applicant has sought to bring himself within that category. He submitted that: (a) he has conducted himself virtually as a model prisoner in the expectation that by so doing he would receive parole at the earliest release date. The non-parole period expired on 14 November 2006. He has not been released to parole and there is no indication if and when he will be.

(b) the reason why he has not been admitted to parole is because he has at all times maintained he was not guilty of the offences of which he was convicted. As a result he was for a long time denied admission to the CUBIT program (a 33 to 52 week long prison based intensive therapy program for men who have sexually abused adults, children or both designed to help them work intensively on changing their thinking, attitudes and feelings which lead to their offending behaviour) the completion of which program was, in practical terms, a prerequisite to his release on parole at the earliest date.

(c) the sentencing judge should have adjusted his sentence in order to take account of the possibility that his refusal to admit guilt would lead to his exclusion from the CUBIT program with the consequence that he would be required to serve his sentence beyond the expiration of the non-parole period. 65 Similar submissions were made to this Court in Regina v Reyes [2005] NSWCCA 218. In his judgment Grove J (with whom Wood CJ at CL (as he then was) and Hoeben J agreed) said: [72] The respondent seeks to rely upon information presented to the Court in the affidavit of Mr Hutchison, the solicitor in charge of the Prisoners Legal Service of the Legal Aid Commission of New South Wales. In summary, Mr Hutchison testifies that the Parole Board exercising its function with regard in particular to s 135 of the Crimes (Administration of Sentences) Act 1999 takes the view that it is not in the public interest to grant parole to an untreated sex offender and that the risk of reoffending is high. Alternatively the Parole Board may grant parole only towards the end of sentence (six months is suggested) so that there is only a brief period of parole supervision and monitoring before the sentence expires. [73] He claims that this means in practical terms that an offender must undergo therapy programmes of various sorts which are available under the umbrella title CUBIT (Custody Based Intensive Treatment). An offender who wishes to participate in such programmes, but denies offences, is not accepted into the programmes. [74] The submission that this should be taken into account as a reduction factor in the assessment of sentence should be rejected. The core of jurisdiction to impose any sentence is guilt of the offender. It is an election of the offender not to accept guilt but it would be inconsistent with the task of the sentencer to make an assessment other than on the basis that guilt has been proved beyond reasonable doubt. [75] Counsel referred to no authority for the proposition that this particular risk of service of full sentence could be a factor in assessment. The absence of authority is not surprising. It requires little imagination to postulate a situation that, if a persistent claim of innocence after conviction were maintained and this attracted a reduction in sentence, an offender could adopt that position but, after receiving the discounted sentence, alter his stance, undertake a CUBIT programme and earn release from the shortened sentence. Once sentence is passed (absent express legislation such as applies to persons who renege on offers to assist law enforcement authority) there is no facility for cancelling a discount received by a manipulative offender. 66 The submission made on this ground of appeal by the applicant is indistinguishable from the submission with which the court in Regina v Reyes was concerned. It has not been demonstrated that this Court should depart from the conclusion reached in Regina v Reyes. As a matter of comity that decision should be followed. Accordingly, this ground of appeal fails.

Conclusion 67 I propose the following orders: 1. The time for seeking leave to appeal be extended to the date of the filing of this application for leave to appeal;

Leave to appeal granted;
Appeal allowed as to count 8;
As regards count 8, the sentence is quashed and in lieu thereof the applicant is sentenced to imprisonment for 6 years commencing on 15 August 2002 and expiring on 14 August 2008 with a non parole period of 4 years and 3 months commencing on 15 August 2002 and expiring on 14 November 2006;

The sentences as to counts 3 - 7 inclusive are confirmed. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

DCU v State Parole Authority of New South Wales [2006] NSWSC 526 Esho v Parole Board Authority of NSW [2006] Galli v NSW State Parole Authority [2006] NSWSC 206 Gulliford v New South Wales State Parole Authority [2006] NSWSC 1230 Lee v State Parole Authority of New South Wales [2006] NSWSC 1225NSWSC 304 McNaughton v R (2006) 163 A Crim R 381 Pearce v R (1998) 194 CLR 610 at 6 Power v R (1974) 131 CLR 623 R v AEM [2002] NSWCCA 58 R v Azar [2000] NSWCCA 26 R v Cartwright (1989) 17 NSWLR 243 R v Delaney (2003) NSWLR 1(DR), Fowler (2003) 151 CLR 166 at [242] R v Gould [1999] NSWCCA 177 CASES CITED: R v Hallocoglu (1992) 29 NSWLR 67 R v Hammoud (2000) 118 A Crim R 66 R v Henry (1999) 46 NSWLR 346 R v JRD [2007] NSWCCA 55 R v Knight [2004] NSWCCA 145 R v Mostyn (2004) 145 A Crim R 304 R v Munday (1981) 2 NSWLR 177 R v Perez-Vargas (1986) 8 NSWLR 559 R v Scott [2003] NSWCCA 28 R v Sukkar [2006] NSWCCA 92 R v Vachalec [1981] 1 NSWLR 351 Regina v Reyes [2005] NSWCCA 218 Varney v Parole Board (WA) (2000) 23 WAR 187 York v R (2005) 79 ALJR 1919

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