ZA v R [2017] NSWCCA 132 | Case summary

Court of Criminal Appeal (NSW)|2017-02-08|Before: Payne JA, Fullerton JJ

The Applicant's Subjective Circumstances

The Applicant was aged 36-37 years at the time of the offences and 39 years at the time of sentence.
The Applicant had a prior criminal history which included bonds for offences of assault occasioning actual bodily harm and contravening an apprehended domestic violence order (in 1998 and 1999), offences of common assault and contravening an apprehended domestic violence order (in 2000) for which community service was ordered, suspended sentences in 2008 for common assault and contravening an apprehended domestic violence order (committed in 2001) and drink-driving offences committed in 2008 for which the Applicant was fined and disqualified.
The Applicant had been educated to Year 10 before leaving school in Year 11 and engaging in a number of short-term unskilled positions of employment. In 2002, he secured full-time employment as a furniture removalist remaining in that industry for five years. He then remained unemployed until 2013 when he worked for four months unloading and loading shipping containers.
A letter from the Applicant was tendered and the Applicant gave evidence at the sentencing hearing.
The sentencing Judge referred to the Applicant's subjective circumstances. His Honour noted the Applicant's criminal history and observed that it could not be described as extensive, but nevertheless was "not one that would entitle him to leniency" (ROS13).
A presentence report of Rene Eastman, Community Corrections Officer, dated 29 October 2014 was tendered on sentence, together with a psychological report prepared by Suzanne Dumasia and Kate Solomon from Forensic Psychology Services, Sex and Violent Offender Programs.
His Honour referred to an aspect of the presentence report, and made a number of findings concerning the Applicant's explanations for his offending (ROS15-16): "The offender referred to a decrease in sexual activities with his wife and that it was no longer satisfying. Ms Eastman commented, 'He justified his actions by stating that he had 'no one else to cheat on'. Therefore sought sexual satisfaction through his daughter.' In my view this exposes the lies told to the police concerning his lack of memory of any offending. Ms Eastman also stated, 'Whilst he stated that he knew his actions were wrong he cited that he 'couldn't stop as I couldn't control myself.' He also admitted telling his daughter that if she disclosed these sexual encounters to her mother then both would be in trouble.' In relation to his possession of child abuse material he stated that whilst he had been viewing pornography since 2006 he did not deliberately seek material that contained young children. No weight can be given to such an assertion when regard is had to the context of the videos downloaded by the offender and stored. Indeed he was able to access some of the material and use it to induce his own daughter to imitate what some other young child was depicted doing to an adult male. Further as I have already indicated the purpose of videoing his own sexual assault of his daughter could have only been for his future viewing of it. As he said it was for his own personal use. The only rational inference is that he receive sexual gratification from all of this material. I regard it as rather disturbing that he would attempt to attribute any blame to his daughter but he does so with the pathetic statement that she 'Wanted the camera on as he claimed that she liked to dance'."
The sentencing Judge noted what he considered to be belated remorse, and observed that the Applicant's prospects of rehabilitation will be dependent upon his participation in sex offender programs, and those prospects will be enhanced if his expressions of remorse were indeed genuine (ROS17).

Some Other Findings of the Sentencing Judge

The sentencing Judge noted that the Applicant's pleas of guilty had been entered at the earliest opportunity and applied a 25% discount in this respect.
A victim impact statement was read by Amy from a remote facility during the sentencing proceedings on 30 October 2014 and relayed to the Court by audio-visual link. The sentencing Judge addressed this aspect in the following way (ROS8-9): "I have received and considered the victim impact statement at tab 6 exhibit A. It serves to highlight how the offender has destroyed his own child's innocence. It also demonstrates the dilemma faced by young child victims sexually assaulted by a family member as they somehow feel responsible to the family unit for that member being removed. There can be no doubt that child victims also feel at fault … that a perpetrator is placed in custody. This is simply a further example of the type of psychological injury and emotional harm brought about by the actions of a sexual predator who also happens to be the victim's natural father. The experience of the Courts is that the full impact of what the victim was subjected to may not be experienced until well into her teens and or young adulthood. Indeed child sexual offences have profound and deleterious effects on victims for many years if not the whole of their lives. It is important that sentences in respect of the S 66A(2) offences recognise the harm done to the victim (S 3A(g) Crimes (Sentencing Procedure) Act)."
His Honour made the following findings concerning the objective seriousness of the seven s.66A(2) offences (ROS9-11): "It is appropriate for the Court to take into account that each of the charged acts occurred in the context of ongoing sexual abuse. That will not necessarily aggravate the Court's assessment of the objective seriousness of the individual offences but it prevents any suggestion that these were isolated incidents occurring over the period of about eighteen months. The offender has exploited the youth of this child in the worst possible way. She was entitled to feel safe and protected when in the confines of the family home. Instead in a gross breach of trust he set about a process of grooming the victim leading to his continued sexual abuse of her with the offending taking on a number of different forms. The deliberate and calculated way he went about the grooming was evident right from the very beginning (Count 1) when he showed her a pornographic video. Referring to the child victim in the video he said, 'Don't be scared this little girl is doing it and she is younger than you.' He attempted to plant in the mind of his eight year old daughter that the behaviour displayed on the video was normal for children of her age. He then ordered her to 'Do it'. His callous disregard for her was evidence in Count 2 when she started to cry with pain and he then threatened, 'Shh be quiet or I'll put my dick up your bottom instead.' Count 3 occurred when she was awoken in her own bed by the offender pulling down her pyjama pants and performing cunnilingus on her despite her plea for him to stop he continued to lick her vagina for about five minutes. Count 4 occurred straight after ordering her to suck his penis and accompanied by the despicable threat that he would 'fuck my anus.' He forced her mouth on to his penis and despite being asked to stop, he continued to push her head down. This act only stopped when the complainant's mother entered the room and asked what was happening. However the threat of being discovered did not deter him as he returned to the complainant's bedroom later that morning. She had earlier complied with his demand to suck his penis under threat that he would have anal intercourse with her and upon his return on this occasion that is what he did (Count 5). It did not end quickly, it continued for between ten and twenty minutes. She forced herself not to cry as to keep his brutal, humiliating and degrading treatment from her own mother. That was simply indicative of how successful his grooming of her had been. Her genital examination later that day revealed the recent/fresh split of the anal verge. The Court of Criminal Appeal has stated that it is erroneous to attempt [to place] forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question (see Doe v R [2013] NSWCCA 248 at para 54 and Simpson v R [2014] NSWCCA 23 at paras 33 to 34). This is particularly so when dealing with sexual abuse of young children. No doubt as a generalisation the younger the children the more defenceless and vulnerable however the entire class of children under the age of ten years is vulnerable and in my view the act of penile/anal penetration in Count 5 was a particularly heinous act. Counts 6 and 7 were video recorded by the offender. The agreed facts document indicates the length of Video 23 as seven minutes fifty seconds and Video 24 as four minutes one second. That of course would indicate that each of those sexual assaults was of some duration. I have viewed each of those videos to confirm the length of time over which the offending conduct occurred. Accordingly I am satisfied that the sexual acts occurred continuously [for] the length of each video. The film highlights the extreme youth and vulnerability of this child and the extent of the offender's exploitation. I have made the comment before that the great majority of fathers will do everything within their power to keep their daughters free from harm. To all right minded people this type of offending is simply incomprehensible."
With respect to the two s.91G(1)(a) offences, his Honour said (ROS12): "The evidence in respect of these two counts is comprised in Videos 22, 23 and 24. The offender was the director, producer and actor in those films and his intention was clearly to record his own sexual assault of his daughter for future viewing and sexual gratification and no more need be said."
His Honour made the following finding concerning the objective seriousness of the s.91H(2) offence (ROS12-13): "Whilst the Courts have on occasion commented that the quantity of the images/videos is not necessarily determinative of the objective seriousness of the offence it is nevertheless important to direct one's attention to the number of images/videos that are said to be in the various categories. In total the Court is dealing with forty-six videos and sixty seven images. Clearly the cause for concern is in respect of the videos. Apart from Videos 23 and 24 constituting the two counts under S 66A(2) and also forming part of the evidence in respect of the counts under S 91E(1)(a) the Court has not viewed the videos. However thirty seven of the videos were classified as category 4 and three of the videos as category 5 on the CETS Scale. The description in the agreed facts of what is depicted in those videos sufficiently demonstrates the evil that is behind the exploitation and corruption of the children involved. They provide the example as to why the Courts have commented that the quantity of the images is not necessarily determinative of the objective seriousness of the offence. As indicated the category 4 videos involve penetrative sexual activity involving children or both children and adults. They are moving images. The three videos being category 5 according to the agreed facts show children in pain during penetrative acts and being urinated upon. Whilst the quantity of the videos/images is less than what the Court often sees in respect of this type of offence it remains objectively serious."
His Honour addressed issues of specific and general deterrence as well as the gravity of offences under s.66A(2) Crimes Act 1900 (ROS18): "I have taken into account the purposes of sentencing set out in S 3A of the Crimes (Sentencing Procedure) Act. The offending conduct calls for a very significant element of special deterrence. Concerning general deterrence, recognition must be given to the fact that children in a family situation are virtually helpless against sexual attack by the male parent. All the more so when the child is under ten years of age. Children have a right to be protected from sexual molestation within the family, and the Courts have a role to play by imposing sentences of a salutary nature to send the message loud and clear that such grotesque offending will not be tolerated. As a result of statutory amendments in 2009 the maximum penalty of an offence under S 66A(2) was increased from 25 years to life imprisonment. In respect of the amending legislation in the second reading speech of the Attorney General, it was stated that the fixing of a maximum penalty of life imprisonment for an offence under S 66A(2) was done "in recognition of the heinousness of committing such an aggravated offence against a child under ten years". Accordingly, an offence under S 66A(2) is amongst the most serious of criminal offences in this State."
The sentencing Judge turned to issues of totality, accumulation and concurrency, with this aspect being the focal point for the first and second grounds of appeal. His Honour said (ROS19): "When considering the issue of totality I am satisfied there is a need for partial accumulation as between the individual offences. In my view this applies even to counts 3, 4 and 5, all committed on the evening of 23 July 2013. In Franklin v R [2013] NSWCCA 122 at para 44, the Court stated that: 'There is no rule that sentences for offences committed on the same day or as part of the same criminal enterprise should be served concurrently. A sentence should not be concurrent simply because it may be seen as part of the one course of criminal conduct...the question to be asked is whether the criminality of the offence can be encompassed in the criminality of the other offence...if not, the sentence should be at least partially cumulative otherwise there is a risk that the sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the offences can be regarded as part of a single episode of criminality (Cahyadi v R [2007] NSWCCA 1).' Section 53A(1) of the Crimes (Sentencing Procedure) Act provides for the imposition of an aggregate sentence of imprisonment. I intend to deal with the present matter in this way. Section 53(2)(b) imposes an obligation to assess criminality for individual offences. The aggregate sentence must reflect the total criminality of the offender. Owing to that aggregation I make a finding of special circumstances."
His Honour then stated the indicative sentences attaching to each offence (see [19] above) before moving to impose the aggregate sentence.
It should be observed that his Honour relisted the matter on 30 March 2015 so that non-parole periods could be specified as part of the indicative sentences for standard non-parole period offences, that being a statutory requirement at the time. The indicative sentences as stated on 18 and 30 March 2015 are those contained in the Table appearing earlier in this judgment (at [19]). No complaint is made before this Court concerning the process of relisting the matter for sentencing correction.

Grounds 1 and 2 - Alleged Failure to Give Adequate Reasons for Determination of Aggregate Sentence and Suggested Error in Application of the Totality Principle

Mr Odgers SC, for the Applicant, advanced submissions with respect to these related grounds of appeal.
We will consider Grounds 1 and 2 together. Submissions of the Parties
Mr Odgers SC accepted that although some level of accumulation was justified given that the offences each involved discrete and independent criminal acts, the extent of accumulation inherent in the aggregate sentence breached the totality principle because it exceeded what was just and appropriate in all the circumstances.
Mr Odgers SC emphasised that there was one victim, albeit with offences being committed against that victim over a period of time, and that the harm she suffered, as evidenced by her victim impact statement, did not point to the conclusion that the harm caused by any one of the s.66A(2) offences was substantially less than the harm caused by the offences in combination. He also submitted that there was some overlap between some offences, including the Applicant videoing the sexual offences committed against his daughter.
Mr Odgers SC's primary contention was that the error in the application of the totality principle was in the failure to impose an aggregate sentence in accordance with what he contended was a two staged approach to the principle of totality as a matter of established principle. Mr Odgers SC also submitted that the sentencing judge failed to give adequate reasons to explain how the totality principle had been applied in the aggregate sentence that was imposed.
Mr Odgers SC referred to Western Australian decisions where it was said that a two staged approach was the principled approach to totality: Roffey v State of Western Australia [2007] WASCA 246 at [24]-[25]; FWB v State of Western Australia [2016] WASCA 118 at [48]-49], [78]-[79]; Labrook v State of Western Australia [2016] WASCA 127 at [33]. He also relied on parts of the judgment of the Victorian Court of Appeal in Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372.
The first limb (it was argued) involved ensuring that the cumulative sentence did not exceed the overall culpability of the offender: Postiglione v The Queen (1997) 189 CLR 295 at 340; [1997] HCA 26 (Kirby J), and that this limb focussed attention on the objective gravity of the offences.
It was argued that the second limb focussed on subjective considerations, with the assessment of the overall sentence as "just and appropriate" necessitating the need to avoid a "crushing sentence". Reliance was placed upon Kirby J's reference to a "second task" in applying the totality principle in Postiglione v The Queen (at 340), whereby "a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender 'a crushing sentence' not in keeping with his record and prospects".
Mr Odgers SC submitted that the sentencing Judge in this case (at [47] above) had erroneously focussed attention on the objective gravity of the Applicant's offences (the first limb) and had failed to give any consideration to the application of the suggested second limb.
He submitted that in this sentencing exercise there were a range of subjective considerations to which the sentencing Judge should have made express reference in applying the second suggested limb of the totality principle each of which had a direct bearing on whether the length of the aggregate sentence to be imposed was just and appropriate.
The subjective considerations were listed in Mr Odgers SC's written submissions as including: 1. the severity of a term of imprisonment increases exponentially as the term increases in length; 2. a significant degree of accumulation may have a disproportionate impact on the applicant's prospects of rehabilitation ( in circumstances where there was no finding that the applicant lacked remorse or had poor prospects of rehabilitation); and 3. a sentence of 26 years (particularly in circumstances where the longest indicative sentence was 15 years) might be regarded as "crushing".
Mr Odgers SC submitted that despite the applicant's submissions before the sentencing judge not approaching the issue of totality in this way, his Honour was nonetheless obliged to do so and that his failure to refer to any of these considerations in his sentencing remarks underscores the inadequacy of the reasons for the aggregate sentence imposed, as it does error in the application of the totality principle.
The Crown did not accept the proposition that there were two limbs to the totality principle. The Crown submitted that his Honour had correctly applied the totality principle and that this was apparent both from what his Honour said and in the structure of the aggregate sentence imposed for multiple offences of considerable gravity.
The Crown noted the Applicant's acceptance that some level of accumulation was appropriate, so that the complaint under Ground 1 should be understood as limited to the suggested inadequacy of reasons concerning the extent of accumulation or notional accumulation between each count as part of fixing an aggregate sentence.
The Crown submitted that the sentencing Judge clearly stated that the offending behaviour called for partial accumulation between each count, and he gave effect to that determination. It was submitted that no inadequacy of reasons had been demonstrated.
With respect to Ground 2, the Crown submitted that the totality principle required a Judge who was sentencing for multiple offences to ensure that the overall sentence properly reflected the overall criminality of the offending: Johnson v The Queen (2004) 78 ALJR 616 at 623 [18]; [2004] HCA 15.
With respect to the Applicant's complaint concerning the failure of the sentencing Judge to advert to the concept of a "crushing sentence", the Crown submitted that the Applicant's behaviour in this case was of the type referred to in R v MAK; R v MSK (2006) 167 A Crim R 159 at 164 [17]; [2006] NSWCCA 381 where it was said that an offender may not be entitled to the element of mercy entailed in adopting such a constraint. The Crown submitted that this was such a case.
The Crown submitted that the Court should reject the first and second grounds of appeal. Decision
The totality principle is a common law principle of sentencing: R v Holder; R v Johnston (1983) 3 NSWLR 245 at 260-261; Mill v The Queen (1988) 166 CLR 59 at 62; [1988] HCA 70; Hili v The Queen (2010) 242 CLR 520 at 528 [25]; [2010] HCA 45; Muldrock v The Queen (2011) 244 CLR 120 at 128 [18]; [2011] HCA 39. In the present case, the principle arises in the context of sentencing under the Crimes (Sentencing Procedure) Act 1999, which preserves (in s.21A(1)) application of the common law totality principle: Nguyen v The Queen (2016) 256 CLR 656 at 659 [1]; [2016] HCA 17.
The totality principle is to be applied by a sentencing court, together with other statutory and common law factors and principles in the process of instinctive synthesis leading to a "value judgment" comprising the determination of sentence: Markarian v The Queen (2005) 228 CLR 357 at 375 [39]; 377-378 [51]; [2005] HCA 25; Muldrock v The Queen at 131-132 [26]. The High Court has emphasised that it is erroneous to engage in two-tier sentencing where the court considers firstly objective circumstances and then subjective factors - that approach is contrary to the process of instinctive synthesis required as part of sentencing: Markarian v The Queen at 377-378 [51]; Muldrock v The Queen at 131-132 [26].
The totality principle requires a sentencing court, where there is a series of offences, to review the total sentence and consider whether the aggregate is a just and appropriate measure of the total criminality involved: Postiglione v The Queen at 307-308, 313-314. It has been said that the sentencing Judge should "take a last look at the total just to see whether it looks wrong", with this involving consideration of the totality of the criminal behaviour and a check as to whether the proposed sentence is appropriate for all the offences: R v Holder; R v Johnston at 260; Mill v The Queen at 63; Johnson v The Queen at 623-624 [18]-[21].
In this context, it has been said that the totality principle serves to ensure that an offender is not subjected to a "crushing sentence": Postiglione v The Queen at 304, 308.
Only Kirby J in Postiglione v The Queen (at 340), has suggested that there are two tasks or stages to the totality principle. No other member of the High Court has adopted a similar approach. It will be recalled that Kirby J was a strong supporter of two-stage sentencing as opposed to the instinctive synthesis approach: Johnson v The Queen at 626-627 [40]-[44]. This may serve to explain his Honour's views in Postiglione v The Queen. It does not represent the law as stated by the High Court.
There has been no acceptance by the High Court that there is a two-stage approach to totality, with the initial focus being on objective factors and the second stage on subjective considerations. Such an approach would be inconsistent with the High Court's rejection of two-stage sentencing in favour of the instinctive synthesis approach.
The significance of an aggregate sentence reflecting "the total criminality comprised in the totality of offences" has been emphasised recently by the High Court. As Gageler, Nettle and Gordon JJ observed in Nguyen v The Queen at 677 [64]: "Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency."
Further, it was only Kirby J in Postiglione v The Queen (at 340) who has proposed an approach where "a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved", with this passage being drawn from Ruby on "Sentencing". This approach has been criticised by the Victorian Court of Appeal in R v Zaydan [2004] VSCA 245 at [21] (Batt JA, Vincent and Eames JJA agreeing). Batt JA said: "I may say immediately that I cannot accept that it is a proposition of universal application that the aggregate sentence not be substantially above the normal level of a sentence for the most serious of the individual sentences. The validity of the proposition could be affected by the number of additional offences charged. Thus, if one took a case of aggravated burglary, armed robbery, rape (2 counts) and associated lesser offences, it would not surprise one to find that the aggregate sentence was 'substantially' above the 'normal' level of a sentence for the most serious of those offences. It is to be noted that the author from whose work it is taken simply stated that, in the circumstance under consideration, a cumulative sentence 'may' offend the totality principle. Further, there is a real question as to what is meant by 'normal'. Is it the mean figure over a period of years for all instances of the offence or is a set of facts postulated as 'normal' and the 'usual' sentence for that adopted? Are factors personal to the offender to be taken into account?"
This Court has applied repeatedly the totality principle as explained by Spigelman CJ, Whealy and Howie JJ in R v MAK; R v MSK at 164-165 [15]-[18]: "15 … Whenever the Court sentences an offender for multiple offences, including when there are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons. 16 The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306: '… the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences.' 17 The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint. 18 A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences."
More recently, this Court (Tobias AJA, Johnson and Hall JJ) said in Paxton v R (2011) 219 A Crim R 104 at 132 [215]; [2011] NSWCCA 242 with respect to the concept of a "crushing sentence": "An assessment whether a particular sentence is a 'crushing sentence' must have regard to the offence or offences committed by the offender, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality. As Grove J observed in Ta'ala v R at [42], 'justice is individual and each offence and each offender requires assessment'."
To attempt to erect, as the Applicant seeks to do, a second limb of the totality principle which concentrates on the offender's subjective circumstances to determine whether the total sentence is "crushing", is not supported by authority.
In Jarvis v The Queen (1993) 20 WAR 201, Ipp J said at 207: "While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos at 301 by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force. The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v R (No 2) (1988) 164 CLR 465; Evangelista and Laporte v R; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312."
In R v E (2005) 93 SASR 20; [2005] SASC 332, Doyle CJ (Debelle and Besanko JJ agreeing) said at 30 [38]: "In recent times there has been a tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed."
In Azzopardi v R, Redlich JA (Coghlan and Macaulay AJJA agreeing) said at 63 [69]: "Whether a sentence offends the principle of totality is directed to the broader question whether the total sentence is proportionate to the offenders overall criminality. It is not dependent upon the subjective views of the offender. Thus a sentence may offend the totality principle without being 'crushing'. It may be too long without destroying any reasonable expectation of a useful life after release [Jarvis v R (1998) 20 WAR 201 at 216 (Anderson J)]. On the other hand a crushing sentence may not necessarily offend the totality principle though it may provide an indicator that it has infringed the principle. The subjective effect of a total effective sentence upon the offender must be put in perspective. While relevant, it cannot be regarded as of paramount importance. Hence in Vaitos v R, O'Bryan J rejected the notion that a richly deserved sentence should be reduced because the offender may feel crushed by it [R v Vaitos (1981) 4 A Crim R 238 at 301]. The overriding principle is that the sentence 'should fairly and justly reflect the total criminality of the offender's conduct' [(1998) 20 WAR 201 at 207 (Ipp J)]."
In R v Zaydan, Batt JA observed at [96]: "In any event, it is to be remembered that extreme length of a sentence alone does not necessarily allow it to be characterised as crushing and that a richly deserved sentence, not manifestly excessive, is not to be disturbed because the offender may feel crushed by it [R v Vaitos (1981) 4 ACrimR 238 at 301 per O'Bryan J; R v Saunders [2000] VSCA 58 at [22]; and R v Cumberbatch (2004) 8 VR 9 at 13-14 [12]. See generally Fox and Freiberg, Sentencing - State and Federal Law in Victoria, 2nd edn, 722-4]."
Nor do the Western Australian cases relied upon by the Applicant (see [55] above) support this approach. In effect, those decisions do no more than point to two features of the totality principle (at least insofar as that principle applies to the imposition of a lengthy total sentence).
As this Court said in R v MAK; R v MSK at 165 [17]-[18], in cases of multiple offending, the particular offender may warrant what is a very substantial sentence which, in the view of some, might be capable of being characterised as a crushing sentence. However, the ultimate sentence to be imposed should bear reasonable proportionality to the objective gravity of the offences for which the Applicant was to be sentenced.
The sentencing Judge gave detailed reasons for imposition of the aggregate sentence ultimately imposed. The substantial extracts from the remarks on sentence set out in this judgment demonstrate a thorough and thoughtful approach to the various factors relevant to the process of instinctive synthesis. His Honour had regard to, and made findings about, the objective gravity of the Applicant's offences and his subjective circumstances, and adverted to other factors relevant to sentence before turning to the issue of totality in the context of setting an aggregate sentence.
His Honour adverted to the arguments which had been put at first instance. It had not been contended in the District Court that the elaborate approach concerning totality advanced for the Applicant in this Court was necessary. Indeed, the Applicant's counsel at first instance did not use the term "crushing sentence" at all.
The Applicant was being sentenced by a highly experienced Judge well versed in the criminal law. It has not been demonstrated that his Honour failed to apply the totality principle. It was not necessary that his Honour articulate a detailed formula of words concerning the totality principle. It was discernible from the reasons as a whole and the sentence imposed that the totality principle was applied as part of the instinctive synthesis involved in the sentencing process: Hall v R [2017] ACTCA 16 at [42].
This Court has observed that questions of accumulation are intuitive, and by nature limit the level of transparency that can be provided by the sentencing Judge: JT v R [2012] NSWCCA 133 at [73]. Since the introduction of aggregate sentencing, it has been said that absolute precision in specifying the degree of accumulation would be tantamount to expressing commencement dates for each indicative sentence contrary to one of the rationales for introducing aggregate sentencing: Beale v R [2015] NSWCCA 120 at [4]; JM v R (2014) 246 A Crim R 528 at 534-538 [34]-[40]; [2014] NSWCCA 297.
His Honour explained sufficiently his reasoning for the ultimate sentencing decision, which involved a significant level of notional accumulation because of the number of very serious offences committed against a young victim involving different conduct on the part of the Applicant.
We would reject the first ground of appeal.
With respect to the second ground of appeal, we have rejected the Applicant's submission that the totality principle is to be approached in two stages, with objective and subjective factors to be viewed separately. We are satisfied that the sentencing Judge applied the totality principle in this case. It may be taken that the entirety of the sentencing Judge's remarks on sentence served to explain the ultimate sentence which was imposed.
Given the indicative sentences for 10 separate offences, it is reasonable to conclude that there was a significant level of notional accumulation in reaching the aggregate sentence. The aggregate sentence did not reflect a linear approach to sentencing. That the head sentence ended up as one of imprisonment for 26 years was an understandable product of the gross and repeated offending by way of seven s.66A(2) offences which each carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Likewise, the child abuse material offences (some of which involved the Applicant's own daughter) required an appropriate level of recognition in the total effective sentence.
The Applicant has not demonstrated error in accordance with the second ground of appeal.

Ground 3 - The Claim of Manifest Excess Submissions of the Parties

Senior Counsel for the Applicant contended that the level of notional accumulation in this case, giving rise to the aggregate sentence, was unreasonable. He sought to compare the aggregate sentence in this case with sentences imposed in R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56; Leslie v R (2013) 227 A Crim R 116; [2013] NSWCCA 48 and Jolly v R (2013) 229 A Crim R 198; [2013] NSWCCA 76.
It was submitted that in all the circumstances of the case, the aggregate sentence imposed was manifestly excessive.
The Crown submitted that the overall criminality of the Applicant was high. He grossly abused his position of trust as the victim's father, grooming her through exposure to pornography and then perpetrating serious and differing acts of sexual violence against her. He filmed the victim being subjected to sexual acts for his future viewing and sexual gratification. The Applicant did not cease his offending behaviour voluntarily, even after being interrupted by his wife.
The Crown submitted that the Applicant's offences constituted heinous criminal conduct over an extended period which called for a very substantial term of imprisonment.
The Crown submitted that care must be taken when seeking to place reliance on comparative cases in support of a claim of manifest excess. In any event, the Crown submitted that the cases relied upon by the Applicant did not support an argument that the sentence in this case was unreasonable or plainly unjust. In support of that argument, the Crown pointed to other sentencing decisions which were said to stand in the way of a finding of manifest excess in this case. Decision
It is for the Applicant to demonstrate that the aggregate sentence in this case was unreasonable or plainly unjust: Markarian v The Queen at 371 [25].
It can be stated fairly that the aggregate sentence imposed upon the Applicant in this case was a very heavy one. The explanation for the imposition of that sentence may be found in the gravity of the Applicant's crimes, involving the exploitation of his own daughter over an extended period of time, and in different ways, in a manner which the sentencing Judge found (correctly) caused her long-standing and likely permanent harm: R v Gavel at 483 [107]-[112].
There were seven separate offences under s.66A(2) Crimes Act 1900, a crime for which Parliament has, since 2009, specified a maximum penalty of life imprisonment with a standard non-parole period of 15 years. The maximum penalty and standard non-parole period are important legislative guideposts for the purpose of sentence: Muldrock v The Queen at 132 [27]. A maximum term of life imprisonment is the most emphatic statement of the seriousness of the offence that the legislature may make: R v Gavel at 481 [91].
It was necessary for the ultimate sentence imposed to reflect the number of s.66A(2) offences (although not in some linear way) in calculation of the ultimate sentence. It was necessary for the sentencing Judge to take into account, as well, the other offending including the video recording of the sexual offences against his own young daughter, made and preserved for later consumption.
The Applicant's s.91H(2) offence placed him in a similar position to the respondent in R v Gavel where the Court said at 482 [101]-[102]: "101 As a result of the Respondent's arrest, police located the child abuse material relevant to the s.91H(2) offence, and the two further matters to be taken into account on sentence for that offence. The child abuse material involved a substantial number of images of child pornography, … . Thus, the Respondent was a consumer of child abuse material who directly abused a child victim himself. 102 In the course of its 2008 Report, the NSW Sentencing Council referred to increasing community concern in relation to the sexualisation of children generally and the availability of child pornography, and the extent to which this material may encourage offenders 'who find the material normalising, to move on to direct abuse of children themselves' (Report, paragraphs 4.1, 4.9). The Respondent appears to fall into this category."
The Applicant's course of criminal conduct extended over some 18 months. The victim was his natural daughter, who was "under his authority" for the purpose of s.66A(2): s.66A(3)(d). Sexual abuse such as this by a father against his own young daughter involves an abuse of trust of the highest order. The display of pornographic material to his daughter on the first and subsequent occasions was done to prepare her for sexual activity, this being a type of especially perverse cultivation and grooming. The s.66A(2) offences involved different forms of penetration including penile/anal intercourse. These were not opportunistic offences, but formed part of a pattern of conduct over an extended period accompanied by threats and some use of physical force. The filming of several incidents of sexual abuse of his daughter added a further sinister aspect to the Applicant's offending. He did not voluntarily desist from his course of conduct. It was the ultimate reporting of his offences by Amy which brought his criminal conduct to an end.
The sentencing Judge had appropriate regard to the objective gravity of the offences, the subjective circumstances of the Applicant, the need for specific deterrence, general deterrence, denunciation and protection of the community as well as the need for the sentence to recognise the harm done to the victim, all these aspects being purposes of sentencing under s.3A Crimes (Sentencing Procedure) Act 1999. Indeed, his Honour's findings were both open and appropriate and (apart from the totality aspect) were not challenged in this Court. His Honour had regard, as well, to the totality principle in determining the aggregate sentence.
The Applicant does not derive support for his claim of manifest excess from the sentencing decisions to which the Court was taken. As noted in R v Gavel at 483 [114], it is the case that there is a limited number of s.66A(2) sentencing decisions available to allow for a "range" to be identified.
However, it is especially noteworthy in this case that the Applicant was to be sentenced for seven s.66A(2) offences together with two s.91G(1)(a) offence and one s.91H(2) offence. There were no Form 1 matters.
In R v Gavel, there were three s.66A(2) offences, one s.61M offence and one s.91H(2) offence. The offender was not a blood relative of the eight-year old victim. There were no offences involving penile penetration. The sentence was increased on a successful Crown appeal.
Leslie v R involved two s.66A(2) offences and one s.66B offence, all committed on the same night. The offender was a friend of the victim's family and not a blood relative of the eight-year old victim.
Jolly v R involved one s.66A(2) offence, one s.66B offence and two s.61M(2) offence. The offender was not a relative of the six-year old victim.
In our view, the sentences imposed in these cases do not assist the Applicant in this case.
The Crown referred to other sentencing decisions, including JL v R [2014] NSWCCA 130; MLP v R [2014] NSWCCA 183; JM v R; BR v R [2015] NSWCCA 255; Bravo v R [2015] NSWCCA 302; AC v R [2016] NSWCCA 21 and Franklin v R [2016] NSWCCA 319.
Substantial terms of imprisonment were imposed in these cases which serve to illustrate that an aggregate sentence approaching the magnitude of that imposed on the present Applicant is not aberrant. None of these cases involved seven s.66A(2) offences, with most involving up to three offences under this section. It is not necessary or purposeful to undertake any more detailed analysis of the facts and circumstances of these various cases or of the sentences imposed.
The Applicant's case is a very grave example of multiple s.66A(2) offences committed against his own young daughter over an extended period, accompanied by other criminal conduct. Comparison with other sentencing decisions does not assist the Applicant on this appeal.
The Applicant has not demonstrated that the aggregate sentence imposed upon him for these offences was unreasonable or plainly unjust.
We reject the third ground of appeal.

Conclusion

The Applicant has not made good any of his grounds of appeal.
We express our agreement with the additional reasons of Payne JA.
We propose that leave to appeal be granted, but that the appeal be dismissed.

Amendments 16 June 2017 - [57] - "records" to "record". [75] - "[31]" to "[21]". 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. Decision last updated: 16 June 2017

Judgment

PAYNE JA: I have had the advantage of reading the judgment of Johnson and Fullerton JJ in draft. I agree with the orders proposed by their Honours and with their Honours' reasons. I wish only to say a little more about the challenge to the primary judge's consideration of the principle of totality.
The challenge was framed on the basis that the primary judge had failed to apply two separate "limbs" of the principle of totality. In the course of oral submissions Mr Odgers SC, who appeared for the applicant, advanced this submission (T 4-5): "…the totality principle has two limbs. One focuses on what I'll call objective considerations. That is, a consideration of the overall criminality of the offending, the overall objective seriousness of the offending where a sentencing judge is required to look at the totality of the offending, to look at those matters that are common or related or overlapping, to make an assessment of the overall harm caused which can be of course difficult in circumstances where there's only one victim as in this case. … …the second limb requires a focus on…subjective considerations in the light of the fact that there is going to be a substantial sentence imposed, in this case, for the most serious offences. It's conventional to look at the sentence that's appropriate for the most serious offence and then to consider, well what would be the impact on this offender of a significant extension of sentence by reason of aggregation which takes into account, subject considerations like the need for specific deterrence, the need for the impact on prospects of rehabilitation."
It was submitted that by failing to refer expressly to the second "limb" of totality the sentencing judge fell into error.
The description of separate "limbs" of the totality principle apparently derives from D. A. Thomas, Principles of Sentencing: The Sentencing Policy of the Court of Appeal Criminal Division (2nd ed 1979, London: Heinemann Educational). There the author is there principally describing cases drawn from the Criminal Division of the Court of Appeal in England and Wales in the period of 1970 to 1977. Mr Thomas says at 57-8 (footnotes omitted): "The many decisions of the Court in which the totality principle has been applied to explain the reduction of a cumulative sentence made up of correctly calculated individual parts suggest that the principle has two limbs. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender 'a crushing sentence' not in keeping with his record and prospects. The first limb of the principle can be seen as an extension of the central principle of proportionality between offence and sentence, while the second represents an extension of the practice of mitigation." (italics added)
It is to be noted that in the same edition of Mr Thomas' work the process of "calculating the length of a tariff sentence" was described as having "three stages" (at 194). Such an approach to sentencing by adopting different "stages" would likely lead to error: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Muldrock v The Queen (2011) 244 CLR; [2011] HCA 39.
In Australia, the language of separate "limbs" of the totality principle has sometimes been adopted, mainly in Western Australia, in a series of cases apparently commencing with Bowman v The Queen (1993) 69 A Crim R 530 at 537-8. It is clear, however, that in describing the separate "limbs" of the totality principle, the Court of Appeal of Western Australia was not setting out a process of identification of the separate "limbs" of totality as necessary elements of every sentencing judgement. In FWB v State of Western Australia [2016] WASCA 118 Buss JA (with whom McLure P and Newnes JA agreed) noted at [49]: "The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA, Steytler P & Miller JA agreeing). Also, the severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing)."
The High Court in Mill v The Queen (1988) 166 CLR 59 at 62-65, described the totality principle in a way that did not adopt a separate "limb" analysis, despite quoting with approval a different passage from the text by Mr Thomas to that quoted above. As Johnson and Fullerton JJ point out, other than Kirby J in Postiglione v The Queen (1997) 189 CLR 295 at 330, the High Court has never accepted that there are two tasks or stages involved in applying the totality principle. I agree with Johnson and Fullerton JJ that what Kirby J said in Postiglione on this topic does not represent the law as stated by the High Court. The absence of separately identified "limbs" of the totality principle is also apparent in the recent decision of the High Court in Nguyen v R (2016) 256 CLR 656 per Bell and Keane JJ at [37]-[38] and per Gageler, Nettle and Gordon JJ at [64].
Identical challenges to the present have been rejected twice before in this Court: Asplund v R (Cth) [2014] NSWCCA 237 and GJ v R [2014] NSWCCA 292. In Asplund the applicant's submissions were described thus at [51]-[52]: "The applicant submitted that in accordance with Mill v R [1988] HCA 70; 166 CLR 159 the 'total or aggregate sentence' imposed on an offender must be 'just and appropriate'. He submitted that this principle had been breached. He submitted that the totality principle had two limbs, being: (a) That the total effective sentence imposed on an offender, who has committed multiple offences, must bear a proper relationship to the overall criminality involved in all of the offences including those in respect of which the offender is still serving or is yet to serve a sentence of imprisonment. (b) The total effective sentence imposed on an offender should not constitute a 'crushing sentence' so as to 'destroy any reasonable expectation of useful life after release from custody'. He submitted that her Honour erred in this case by not considering the 'second limb' of the totality principle and not expressly considering whether the additional sentences imposed by her would constitute a 'crushing' sentence insofar as the applicant was concerned."
Hoeben CJ at CL (with whom Hidden and Davies JJ agreed) rejected these submissions and held at [63]: "Her Honour specifically referred to the principle of totality in her sentence judgment and did so immediately following her description of the sentence imposed for the grooming offences …. She clearly took the principle into account and it was not necessary for her to make any reference to whether or not the sentences were likely to be 'crushing'. The length of the sentences imposed made it clear that not only was her Honour aware of the principle of totality but she applied it."
In oral argument in this case senior counsel for the applicant retreated a little from the description of separate "limbs" of the totality principle and submitted: "Now, I don't care whether you call a limb, a principle or a proposition or a consideration, it is something that must be taken into account and of course one can have some issue about what exactly it means to say that one should consider voidance of a crushing sentence. It goes without saying that if you use that kind of analysis in the context of single offences it doesn't really advance the analysis much but in the context of totality and an application of the totality principle it does have work to do."
Having specifically addressed the question of totality, it was not an error for the sentencing judge to fail specifically to refer to separate "limbs" of the principle.
The sentencing judge expressly adverted to the principle of totality and imposed a sentence which was just and appropriate to the applicant's offending behaviour and accurately reflected the totality of criminality comprised in the totality of offences. He was not required to do more.
JOHNSON AND FULLERTON JJ: The Applicant, ZA, seeks leave to appeal against an aggregate sentence imposed by his Honour Judge Conlon SC at the Campbelltown District Court on 18 March 2015 with respect to a number of child sexual assault and child abuse material offences, involving his own daughter.
The Applicant is referred to by initials (which are not his true initials) as identification of him would tend to identify his daughter contrary to the provisions of s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987. We will refer to the daughter as "Amy" (which is not her real name).

ZA v R

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