New South Wales Court of Criminal Appeal CITATION : Regina v Johnston [2002] NSWCCA 201 FILE NUMBER(S) : CCA 60079/00 HEARING DATE(S) : 18 March 2002 JUDGMENT DATE : 3 June 2002 PARTIES : Regina v Peter Phillip Johnston JUDGMENT OF : Dunford J at 1; Carruthers AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0238 LOWER COURT JUDICIAL His Honour Judge Gibson QC OFFICER : COUNSEL : Applicant - P.G. Berman SC Crown - P.E. Barrett SOLICITORS : Applicant - D.J. Humphreys Crown - S.E. O'Connor CATCHWORDS : Sentencing appeal - serious sexual offences - pleas of guilty - whether sentencing regime allowed sufficient time on parole. LEGISLATION CITED : Crimes Act 1900 ss 61C(1)(b), 61I, 109(2), 112(2), 113(2) R v Blackman & Waters [2001] NSWCCA 121 R v Deahm (CCA, unreported, 27/3/96) R v Ellis 1986) 6 NSWLR 603 R v Sharrock (1999) NSWCCA 289 CASES CITED: R v Simpson (1961) 61 A Crim R 58 R v Thomson & Houlton (2000) 49 NSWLR R vThornbury (2000) NSWCCA 526 R v Wahabzadah [2001] NSWCCA 253 Yardley v Betts (1979) 22 SASR 108 DECISION : Appeal allowed. Sentences below quashed in part. For re-sentencing see pars 58-60. IN THE COURT OF CRIMINAL APPEAL 60079/00 DUNFORD J CARRUTHERS AJ Monday, 3 June 2002 REGINA v Peter Phillip JOHNSTON Judgment 1 DUNFORD J: I have read the judgment of Carruthers AJ in draft form and agree with the orders proposed and his Honour's reasons therefor. 2 CARRUTHERS AJ: Peter Phillip Johnston seeks leave to appeal against sentences imposed upon him by Judge Gibson QC at the Sydney District Court on 4 February 2000. The applicant had previously pleaded guilty to four counts of aggravated break and enter and commit serious indictable offence pursuant to s 112(2) of the Crimes Act 1900 (the Act) (counts 1, 2, 13 and 14), which offence carries a maximum penalty of twenty years imprisonment; one count of aggravated enter dwelling with intent to steal pursuant to s 109(2) of the Act (count 3), which offence carries a maximum penalty of twenty years imprisonment; one count of sexual assault category 2, threat to inflict bodily harm by means of an offensive weapon with intent to have sexual intercourse pursuant to s 61C(1)(b) of the Act (count 4), which offence carries a maximum penalty of twelve years imprisonment; seven counts of sexual intercourse without consent pursuant to s 61I of the Act (counts 5 to 11), which offence carries a maximum penalty of fourteen years imprisonment; and one count of aggravated break and enter with intent to steal pursuant to s 113(2) of the Act (count 12), which offence carries a maximum penalty of fourteen years imprisonment. 3 With respect to count 1, his Honour sentenced the applicant to imprisonment for a fixed term of seven years commencing on 4 July 2005 and expiring on 3 July 2012. 4 With respect to count 2, His Honour sentenced the applicant to imprisonment for a minimum term of three years commencing on 4July 2012 and expiring on 3 July 2015 with an additional term of four years expiring on 3 July 2019. 5 With respect to count 4, his Honour sentenced the applicant to imprisonment to a fixed term of five years commencing on 4 January 1999 and expiring on 3 January 2004. 6 With respect to each of counts 3, 12, 13 and 14, his Honour sentenced the applicant to imprisonment for a fixed term of eighteen months commencing on 4 January 2004 and expiring on 3 July 2005. 7 With respect to count 11, his Honour sentenced the applicant to imprisonment for a fixed term of three years commencing on 4 July 2012 and expiring on 3 July 2015. 8 The applicant was arrested on 4 January 1999 and has remained in continuous custody since that date. 9 The overall effect of the above sentences is that the applicant was sentenced to serve by way of actual imprisonment sixteen years and six months from 4 January 1999 to 3 July 2015, with an overall head sentence of twenty years and six months from 4 January 1999 to 3 July 2019. There is thus effectively a parole period of four years. 10 For the sake of convenience I have adapted the agreed facts which were before the learned sentencing judge as an adequate summary of the relevant factual circumstances relating to each count. I set that summary out below. "COUNT 1 : Break, Enter and Commit Felony, to wit Sexual Assault Without Consent (In Circumstances of Aggravation). Victim: MG. On the evening of Wednesday 30 September 1998 the prisoner left his residence on foot to walk through the orchard to scare off fruit bats. He continued through the orchard and into Mid Dural Road. He walked along Mid Dural Road until he reached a lane which leads to Hakea Crescent, approximately 1 kilometre from his residence. He stated he walked around Hakea Crescent and into various properties looking for something to steal. He entered the property of number 17 Hakea Crescent via a side gate. He walked into the backyard and saw the victim in the lounge room. He walked away from the premises where he had a cigarette. He returned to the premises about 12.15 am being Thursday 1 October and entered the rear yard. He saw the victim asleep in bed. He removed a flyscreen from a spare bedroom window gaining entry to the premises via window. He entered the house at which time the victim was alone. He walked into the victim's (MG) bedroom where he removed his pants. The prisoner climbed onto the bed and placed his hand over the victim's mouth and told her to be quiet. He placed a pillow case over her head and sat on top of her. The prisoner began to touch the victim who was naked. He touched the victim's breasts and pubic area and inserted his penis into the victim's vagina and commenced intercourse. While doing this the prisoner asked the victim her name. The prisoner continued to sexually assault the victim a number of times including oral sexual intercourse. At the conclusion of the assaults the prisoner took the victim to the bathroom where he forced her to wash her mouth and have a bath. Prior to leaving the prisoner removed a black fitted sheet from the bed. The prisoner left the house via the same window and walked home. At no time did the victim give the prisoner permission to sexually assault her. The victim resides alone at the house. The attack occurred during the night whilst the victim was asleep in the house. The prisoner stated he knew the victim was inside the house asleep when he entered the house. As a result of the assault the victim is suffering emotional distress for which she is undergoing counselling. COUNT 5: Sexual Assault Without Consent Upon MG . After vaginally assaulting the victim the prisoner ordered her to kneel on the floor. As she did this she could feel the prisoner in front of her. He said "Take my penis put it in your mouth and suck it". The prisoner pulled the pillowcase up so that the victim's mouth was showing. He started to push his penis in and out of the victim's mouth. The prisoner did this for about three minutes and said "Don't worry I'm clean". COUNT 6: He took his penis from the victim's mouth and ordered her back onto the bed. The prisoner pushed the victim's legs apart and lay between her legs. He began to thrust his penis aggressively into the victim's vagina. The victim states that his penis felt harder than the first time. COUNT 7: After vaginally penetrating the victim again on the bed he said "Come with me". He lead the victim to the bathroom where he took a hand towel and wet it in the basin. The victim's head was still covered with the pillowcase. The prisoner ordered the victim to kneel on the bathroom floor. The victim believed the prisoner wiped himself with the towel. He said "Just put this in your mouth". The prisoner put his penis in the victim's mouth and moved it back and forth. COUNT 8: The prisoner withdrew his penis from the victim's mouth and walked her back to the bedroom where he sat on the bed. He forced the victim to kneel on the floor and said "Open your mouth wider". He placed his penis into the victim's mouth and said "I am going to come in your mouth". He then said "Have you got any cream". The victim pointed to a jar of Vitamin E cream on the bedside table. The prisoner opened the jar and placed some cream on his penis. He pushed the victim over the bed and tried unsuccessfully to anally penetrate her. COUNT 9: The prisoner ordered the victim to lie on her back on the floor. The prisoner rubbed cream around the victim's vagina. He inserted his semi-erect penis into the victim's vagina. He instructed the victim to rub the cream over her breasts and to squeeze her nipples. COUNT 10: The prisoner pulled the victim up so that she was sitting on the floor. He placed his penis into the victim's mouth and pushed it back and forth until the victim felt him ejaculate into her mouth. He said "swallow it, swallow it". The victim spat out onto the pillowcase and the prisoner wiped the victim's face and mouth. The prisoner led the victim to the bathroom where he made her gargle water and rinse her mouth. He pushed her into the bath and turned on the taps. He instructed the victim to wash herself twice. The prisoner led the victim back to her bedroom and asked her for her bag. The prisoner obtained her bag from the wardrobe and asked for identification. The victim obtained a credit card with her name on it. The prisoner removed the bottom sheet from the bed and ordered the victim to lie on the bed and not to call the police. He asked the victim if she had a security light to which she replied no. He said "well get one". The prisoner then left the house via the open window. COUNT 2: Break, Enter and Commit Felony, To Wit Sexual Assault Without Consent Upon SS (In Circumstances of Aggravation). On the evening of Monday 14 December 1998 the prisoner walked from his residence along Galston Road to the laneway which leads to 7 Hakea Crescent. He had seen a young girl inside the premises on a prior occasion. He walked to the rear of the premises where there is a fly screened enclosure. He walked into the enclosure and opened a sliding door which leads into the house. Prior to entering the house he had seen the parents of the victim, in bed asleep, through a side window. He walked into the lounge room and located the victim's (SS) bedroom. He walked out of the premises and into the rear yard where he removed his pants. The time was approximately 3.30 am on Tuesday 15 December. The prisoner walked back into the house and switched a light on in a room adjoining the victim's bedroom. He walked into the victim's bedroom where the 17 year old victim was asleep. He placed his hand over the victim's mouth causing her to wake. The prisoner said "If you should I will kill you and your family". He asked the victim how old she was and she informed him she was seventeen. He said "Are you a virgin?" and she said "Yes". He said "Do you want me to give it to you down here or up there?" indicating her vagina or mouth. The prisoner was lying on top of the victim and attempted to place his penis in her vagina. The victim informed the prisoner she was wearing a tampon. The prisoner pulled the victim so that she was sitting on the side of the bed. He placed his erect penis in her mouth and commenced oral intercourse. He told the victim to suck his penis and he forced her head down further onto his penis. COUNT 11: Sexual Assault Without Consent upon SS . The prisoner withdrew his penis and pushed the victim back onto the bed. He instructed the victim to remove her tampon and lay on top of her. He commenced to insert his penis into her vagina but, had some difficulty. He commenced to thrust his penis into the victim's vagina. At the same time the prisoner bit and sucked the victim's nipples. The victim was unsure whether the prisoner ejaculated. The prisoner got off the victim and said "If you're going to shout or scream I'll kill you and your family and if you tell anyone I'll burn your house down. I have a can of petrol nearby". The prisoner instructed the victim to take a shower and he left the room. The victim went to the bathroom and washed her face and when she returned the prisoner was gone. At the time the victim was a seventeen year old who had had no sexual experience. At the time of the assaults the victim's mother, father and sister were present in the house. During the assaults the victim's eyes were covered with a doona or something similar. As a result of the assault the victim suffered two tears on her hymen and soreness to her vagina. COUNT 4: Sexual Assault Without Consent – Category 2: MZ . On 17 December 1990 the prisoner attended the premises of 374 Galston Road, Galston where the victim, MZ, was asleep in bed. The victim resided at the premises with her two children. That night she went to her bedroom at about 11.30 pm where she removed her clothing and went to bed. The victim awoke to a hand pushing at the back of her head. She attempted to turn her head and saw a male person. This person grabbed her hair and pushed her head into the pillow. The prisoner said "Don't move or I'll kill you". The prisoner was leaning on the bed and holding a knife near the victim's left ear. The prisoner placed his hand around the victim's mouth and said "I have been to see the kids, if you don't do as you are told I will hurt them as well". The victim started to struggle and grab for the knife but the prisoner said "Shut up, Shut up, do as your told and you won't get hurt". The prisoner rolled the victim onto her stomach and she informed him she would have to remove a tampon as she was menstruating. The prisoner pulled the victim up and held the knife to her face. He pulled down his shorts and said "Go to it, do your stuff". The prisoner pushed the victim's head into his exposed penis. The victim clenched her teeth to abrade his penis. The prisoner said "Do your stuff properly or I will kill you". The prisoner forced his penis into the victim's mouth and she commenced to suck it until he ejaculated. The prisoner removed his penis and said "Stay still if you even think of ringing the police, the next time I will come and get both you and the kids. The prisoner then left the premises. After being arrested the prisoner was questioned in respect to the assault and he fully admitted the offence, although he denied the use of the knife. COUNT 3: Enter Dwelling In Circumstances of Aggravation: GS. About 11 pm on Monday 14 December 1998 GS went to her bedroom where her daughter was already in bed. The victim changed into her night wear and got into bed with her daughter. The victim's husband was in the lounge room watching television. About 2.30 am on Tuesday morning the prisoner attended the premises where he walked to the rear of the house and observed the victim and her daughter asleep in bed. He removed the flyscreen from the frame and moved the curtain across the window. The prisoner stated he saw a handbag inside the bedroom so he took a stick from the yard and reached into the room with the stick in an attempt to get the handbag. In attempting to grab the bag he leaned into the room with his head and shoulders. He stated the victim stirred from her sleep so he left. The victim woke as she heard a noise in the room. She went to the lounge room where her husband was asleep and woke him. He left the house with their pet dog which ran off up the laneway which leads to Galston Road. No person was sighted by the victim or her husband. The victim inspected the bedroom and observed pieces of bark on the bed. She stated her handbag was not in a position that it could have been removed from the room with the stick. The prisoner was unable to state how the bark got onto the bed. COUNT 12: Break and Enter With Intent In Circumstances of Aggravation: DC . About 9.15 pm on Saturday 28 March 1998 the prisoner walked from his residence to the rear yard of a property located at 14A Middle Dural Road, Galston. At this time the occupants of the premises Mr and Mrs C were at home with their children. The prisoner observed a handbag in the kitchen of the premises, in the vicinity of Mrs C. Whilst her head was turned the prisoner removed a flyscreen from the open window and attempted to take the bag. The victim observed the prisoner at the window and alerted her husband who came into the kitchen. The prisoner fled from the property. Whilst being interviewed the prisoner freely admitted to removing the flyscreen in an attempt to steal the handbag. COUNT 13: Break and Enter In Circumstances of Aggravation: VT . On Wednesday 28 January 1998 VT and her husband were having a party at their premises at 4 Sylvan Street Galston. The party commenced about 5 pm and was held mainly in the lounge room and rear sections of the house. About 10.00 pm the prisoner attended the premises where he observed the party being held inside. He approached a front bedroom window and removed the flyscreen. He observed a handbag on the bedroom floor. He reached in and removed the bag. Then he walked from the premises into a neighbouring yard where he inspected the bag and removed money ($85.00) from the purse. Prior to reaching in and removing the bag, the prisoner stated he had attended the house during the night and observed the persons inside. COUNT 14: Break and enter In Circumstances of Aggravation: BG. On the evening of Friday 3 July 1998 BG was at home with his girlfriend. Whilst at home the victim left his wallet on an ironing board in the lounge room. During the course of the night the victim left the house to walk his girlfriend home. He returned about ten minutes later and went to bed. During the night the prisoner attended the premises where he saw the victim asleep. He also saw the victim's wallet on an ironing board. The prisoner obtained a stick from the rear yard and cut the flyscreen on a window adjoining the lounge room. He put the stick through the window and removed the wallet with the stick. The prisoner removed $30.00 from the wallet. The prisoner stated that at the time of the theft he knew there were people inside the premises." 11 At the time of the subject offences the applicant (who was born on 14 February 1962) and his mother resided on the property at Galston. The applicant's mother had resided in the cottage on the property for the past forty years and the applicant was employed as a farm hand on the property. As a result of a police investigation police officers attended the premises at 6 am on 4 January 1999. 12 During the course of that day police located a number of handwritten letters indicating the applicant's involvement in the sexual assaults. As a result of an extensive search police located the applicant at about 6 pm on that day in bushland adjoining Galston Road. He was arrested and conveyed to Hornsby Police Station and following an interview was charged with the subject offences. 13 The applicant's record disclosed a number of convictions for minor sexual offences, stealing and a minor drug offence together with some driving offences. The applicant was in fact on a bond for a driving offence at the time of the subject offences. In addition his record shows convictions in 1984 including fifteen matters on a schedule for similar types of offences, to the subject charges, being break and enter and commit felony being indecent assault on a female. 14 The learned sentencing judge noted that the applicant was not entitled to "any great mitigation" because of his record, neither did he receive more because of it. His Honour noted that the applicant's last conviction was in 1996 and took that into consideration. 15 The applicant pleaded guilty at the first available opportunity in respect of all matters and co-operated with police officers in providing them with relevant information that they sought from him, including admissions in relation to certain of the offences of which, prior to the interview date, he was not an identified suspect. 16 His Honour had before him a report dated 23 August 1999 from Duffy Barrier Robilliard, psychologists, under the hand of Adam Ferrier. 17 It is important to note Mr Ferrier's "Clinical opinion" and "Recommendations" in full. " CLINICAL OPINION Peter is a thirty seven year old man of average intelligence. Personality test results indicate he would likely attract a diagnosis of personality disorder (Borderline type). He finds himself in prison awaiting sentence for four counts of Aggravated Sexual Assault. Peter grew up on a property on the outskirts of Sydney. He was not close to any of his brothers and sisters, and both his mother and father were emotionally detached, cold and disinterested. His father, when he did show emotion was often angry and violent. Peter was the subject of his father's violence on numerous occasions. As a child Peter could remember feeling extremely angry and often lonely. He began to act out his anger, isolation and sense of injustice in numerous ways. By the age of eight years he reports a pattern of cruelty to animals and fire setting. Such expressions of anger can be seen as a means for Peter to exert control over his environment. Being cruel to animals gave him a sense of power that in turn validated his sense of self worth. Peter was also cruel to his new born infant brother and can remember burning him with cigarette butts. At around the same age Peter began to act in sexually promiscuous and deviant ways. He received no sexual education either formal or informal and was left to his own devices to explore his developing sexual and emotional needs. His early sexual experiences again demonstrated a desire to exert control over others. This is exemplified when he would not let his sister and his sister's friend out of a tree house until they had stripped. Peter can remember spying on his sister's friend through cracks in the house when she was naked. This peeping behaviour generalised to outside the home when he would roam the neighbourhood and peep and pry. As he grew bolder, his offending behaviour became more risky and involved closer contact with his victims. He was eventually arrested for his offending behaviour and incarcerated. The punishment he received for the offences stopped his offending behaviour for a short while as he was embarrassed and ashamed. Upon his release from incarceration, Peter attempted to have mutual consenting relationships with other adults, however these relationships failed. When the women left him he reacted with extreme feelings of anger, hurt, depression and bitterness. Such reactions are typical of people with the particular personality pathology Peter has. Needing to re-establish feelings of control he began re-offending. Part of Peter's modus operandi was to make his victims have a shower or wash their mouth after he had sexually abused them. Peter has done this for seemingly conflicting reasons. Part of him did not want to hurt his victims and he was actually seeking intimacy through his abusive acts. On the other hand, such demands are also about reinforcing himself as the powerful person, in complete control of the situation. Currently Peter admits to masturbating about fantasies relating to his victims. His masturbatory fantasies include violent themes centred around the issues of power and control. It is unclear whether Peter's offending behaviour has stopped escalating in both severity and frequency. He believes that his deviant masturbatory fantasies are out of his control. He tries to masturbate about appropriate regular themes however cannot masturbate to ejaculation when he does so. Peter's risk of re-offending is extremely high. He has a high propensity for violence and if left untreated will sexually abuse more victims and his offences may continue to escalate to the point of homicide. RECOMMENDATIONS Whilst in gaol Peter needs intense and long term intervention. He wants help and his frankness and openness during our interview should be seen as an indicator of the sincerity of his desire to get help and not re-offend. Once sentenced Peter needs to be psycho-sexually assessed for treatment within the prison system. Such assessment and treatment programmes are now under way within Corrective Services under the direction of psychologist Mr Michael Edwards. Assessment by a psychiatrist for possible anti-depressant medication may also assist. When released to the community your client will need strict supervisory conditions imposed by Probation and Parole as deemed suitable by professional assessment conducted at the time of his release. It is important to reiterate that Peter's current risk of re-offending is extremely high as is his propensity for violence. It is therefore mandatory that he receive appropriate treatment and management to minimise his chances of re-offending in the future. His alcohol and other drugs misuse also needs attention." 18 His Honour also had before him a report by Dr William E. Lucas, psychiatrist, dated 16 November 1999. 19 By way of medical and psychiatric history Dr Lucas noted that the applicant informed him that when he was in prison in 1984 he was raped and afterwards was in the psychiatric unit at Long Bay for a couple of months. He also said that he had swallowed a "gaol cross", a small metal construction designed to spring open after having been swallowed. According to Dr Lucas such behaviour is not uncommon in prison when inmates are in difficulties or under pressure. 20 I note those sections of the report under the headings "Diagnosis" and "Opinion" which I set out below. " Diagnosis Mr Johnston is not suffering from a major psychiatric disorder such as schizophrenia or mood disorder. It appears that depression has been a problem over the years and often associated with failed relationships, ones into which Mr Johnston appears to have put a reasonable if not considerable amount of emotional effort. He has the psychiatric diagnoses of exhibitionism (indecent exposure) and voyeurism (peep and pry) although the latter condition has perhaps been less evident in recent years. The relationship between his stealing behaviour and his sexual offending is not entirely clear but it may be that expeditions for the purpose of theft exposed him to situations where his sexual interests easily became manifest. Of concern is the fact that he moved from relatively minor offending around 1980 through the indecent assault of sleeping with young women (he touched breasts through windows) to rape in 1990 and 1998. The history from Mr Johnston and from other sources suggests his capacity for retaliatory violence needs to be taken into account although this has not led to problems with the law. His lengthy statement indicates he has a strong ambivalence about his behaviour and has been troubled by it although unable to control it adequately. It is unclear just why he began raping women rather than continuing with his less worrying behaviour but his history of failed relationships may have played a part. Mr Johnston has a history of abusing drugs and alcohol but he was not intoxicated at the time of his offences. His drug of preference appears to be cannabis although earlier there was a problem with drinking. Mr Johnston does not have any current medical problems. In this report I have given his history and provided an indication of the psychosocial factors likely to have played a part in his offending. His childhood experiences of emotional and physical abuse are important. The fact that he was raped in Long Bay gaol is certainly significant to him but just what its importance might be with regard to his offending is unclear. There was a history of sexual aggression before this. Mr Johnston has been subjected to many stressors over the years largely as a result of relationships which began well and then failed. It is of note that he has endeavoured to maintain contact with his children. Opinion Mr Johnston has committed serious offences and is pleading guilty to a total of ten charges in relation to sexual matters and four breaking offences. The nature of these offences and his preceding history of sexual and property offences is a matter of great concern. During the period of imprisonment which he expects he must be given every opportunity to receive treatment and counselling aimed at reducing the chance of further offences. Unless this is done one cannot be optimistic about his ability to refrain from re-offending in some way, possibly seriously. Despite the seriousness of his conduct I believe Mr Johnston is capable of co-operating with a suitable treatment program. When one looks at all the information he has provided, to myself and others, it is reasonable to conclude that he is capable of revealing himself and being reasonably introspective about his actions and their causes. He is also able to express some empathy with his victims although ambivalent about his behaviour. All this suggests that treatment is not only essential but is likely to be worthwhile. His prognosis is guarded and when he returns to the community strict supervision and enforcement of parole conditions will be needed. Mr Johnston is under protection in prison and it is likely he will remain so. One might hope that at an early stage in his sentence he can be classified to Junee Correctional Centre where there is a quite extensive program of treatment for sexual offenders. If he completes the program there then he could be eligible for more intensive treatment at a unit in Long Bay Prison. I think it needs to be urged on the Department of Corrective Services that Mr Johnston's offending is of a most serious nature and that his inclusion in a treatment program at the earliest possible stage of his sentence is absolutely necessary for the protection of the community and for his welfare. His recent offences were serious and it is of concern that should his offending continue there may be a risk of violence due to the manner of his offending and the unpredictability of the behaviour of victims or other persons present in a house he might enter." 21 The reference to the applicant being under protection in prison, with the likelihood that he will remain so, seems to be the only reference in the material before his Honour as to this particular aspect of the applicant's case. 22 Finally, I note that his Honour had before him a letter from Ms Diane Vera Waddell, a cousin of the applicant. Ms Waddell is forty-six years of age and a mother of three children. She currently works as a teacher and previously as a communications researcher and consultant. 23 She was brought up in the Galston area when it was a rural area and she grew up with the applicant on the same farm, a farm which her parents owned and on which the applicant's father lived and worked. The following passages from her letter to the sentencing judge dated 28 January 2000 give some insight into the applicant's upbringing. "I remember her saying how as a child Peter has responded so positively to a bit of T.L.C. (tender loving care) something she felt he failed to get at home. He appeared to be the unfavoured son next to his youngest indulged brother. This was something that pained all of us to watch. Even my younger sister recalls her discomfort at how Peter was treated. I myself had difficulty even as a child understanding why my uncle seemed to pay him so little attention and I never saw an open display of affections. This was to me very puzzling given that my uncle was like a second father to me. I could always ask a favour of him, a tyre pumped on my bike, a lift to tennis. Nothing seemed too much trouble, yet I was aware he probably wouldn't do the same for his own children. I believe he was a good man but fatherhood starting at 16 years of age I think was overwhelming especially with 8 children, little money and a wife who was estranged from the community. In all the years we all lived together on the farm I could count the number of times I saw my aunty Elsie. To my knowledge they never went out or did anything socially together. And as Galston was a rural area when I was growing up this was extraordinary behaviour. The point of this is that to grow up in the country with no real social contacts is crippling for the whole family. Particularly for an intelligent boy like Peter. My uncle had at least the farm and fruit stall as a means of contact with the rest of the community but his family rarely shared that. While I and my siblings were all encouraged and expected to work and contribute to the farm his family were not. They were never encouraged to participate in community sporting activities, or to use what the farm had to offer, like the horses. If they had an old bicycle which broke down they were not fixed. In short my uncle and aunt's children were left to grow up pretty directionless. 24 His Honour accepted the material both in Ms Waddell's statement and those of the psychologist and psychiatrist, in particular, as to what happened to the applicant when he was in custody. However, not surprisingly, his Honour was concerned that both reports referred directly to the fact that the applicant, unless treated, was dangerous to the community and likely to re-offend in an even more serious manner. Both reports indicated that the applicant is in need of long term treatment, and indeed the applicant has said that he is willing to undergo treatment. In this regard, his Honour commented: "And even then, when released, he would need careful monitoring because of his present risk of re-offending and his propensity to violence. In the light of the medical evidence I do not consider that this is an appropriate case for the finding of special circumstances because of medical or psychiatric history, or that it would in any way reduce the need for particular or general deterrence." 25 His Honour observed: "It seems to me that the offences against the person committed against the individual women should, in relation to each, be treated as one incident. In relation to the property matters, it seems appropriate that they be treated as the one continuing incident for the purpose of sentence." 26 His Honour specifically noted that he took into consideration the fact that the public must be protected from this type of conduct and the likelihood of further offending. This is not to try and impose preventive detention, his Honour said, but to make sure that the public is protected and the appropriate sentence on all counts is imposed in the light of the totality of the criminality involved. 27 In his submissions before this court Mr Berman SC, for the applicant, submitted that the effective sentences were significantly longer than they should have been because there were a number of principles of law which were either overlooked or given insufficient weight by the learned sentencing judge. He relied on four particular matters: the evidence that the applicant was serving his sentence in protection and likely to remain in protection for the remainder of his sentence: the fact that his Honour albeit mentioning the pleas of guilty, did not quantify the relevant discount or explain why he considered quantification was inappropriate: the contention that insufficient consideration was given to the principle of totality and, finally, his Honour's finding that there were no special circumstances. 28 Mr Berman informed the Court, as to the first point, that his understanding was that the applicant was of his own volition in protection because of his rape when in custody on an earlier occasion, and that is why he wishes to remain on protection. In fact he said that it would now appear that the applicant has been removed from protection to strict protection. Thus he contends there is material to support the view that he will remain in protection, either normal protection or strict protection, for the remainder of the sentence. 29 In response, Mr Barrett of counsel for the Crown submitted that as an experienced sentencing judge his Honour would have been aware that serving a sentence in protective custody is more onerous than serving such sentence amongst the normal gaol population. In reliance on the judgment of this Court in R v Deahm (CCA, unreported, 27 March 1996) the Crown submitted that the fact that the sentencing judge did not specifically refer to the matter of protective custody did not amount to an error of principle or fact. 30 The Crown accepted that the fact that the sentence would be served in protection or strict protection may well be relevant to special circumstances, but was nevertheless not decisive and at the end of the day it was always up to the sentencing judge to find special circumstances justifying a reduction in the non-parole period: see R v Wahabzadah [2001] NSWCCA 253 at par 19. Further, that the question of what weight should be given to such a factor depends upon the objective seriousness of the offences and the extent to which other factors such as general and specific deterrence must be reflected in the non-parole period. 31 As to the second ground raised by Mr Berman, he submitted that albeit his Honour may not have been under an obligation to quantify the discount for pleading guilty at the earliest opportunity, it was important in a case such as the present where the sentencing regime was so lengthy that the applicant be made aware that he was in fact receiving a tangible benefit for his early pleas of guilty. This, counsel contended, was the thrust of the judgments in R v Thomson and R v Houlton (2000) 49 NSWLR, allowing for the fact that the Court nevertheless did not proclaim that the non quantification of the discount for the plea of guilty was itself an error of principle. 32 It was of considerable importance in the instant case, he submitted, that the pleas of guilty were entered because it avoided in particular the complainants in the sexual offence cases from having to suffer the ignominy and embarrassment of detailing the nature of the criminal treatment which they had received at the hands of the applicant. One complainant, it would appear, certainly continues to suffer post traumatic stress disorder as a result of the attack upon her. Stress was also laid by Mr Berman upon the fact that although the applicant may not have become entitled to an Ellis discount, ((1986) 6 NSWLR 603) nevertheless the degree of co-operation and the information which the applicant afforded the police when being interviewed, particularly in relation to the 1990 offence, brought him at least very close to the Ellis discount situation. 33 It was pointed out that assuming the discount for early pleas was twenty to twenty-five per cent in accordance with Thomson and Houlton, bearing in mind the immediate admissions (and even allowing for as low as twenty per cent) his Honour's starting point must have been greater than twenty-five years and six months by way of overall head sentence and more than twenty years and six months by way of the effective non-parole period. 34 Drawing upon these "grossed up figures", we were taken to the sentencing statistics being "Head Sentences/Full Terms" for all offenders in relation to sentences under s 19A (murder) of the Act for the period July 1994 to June 2001. Those statistics (being a total of 157cases) disclose that only thirty-one per cent of prisoners received greater than twenty years by way of full terms (including nine per cent sentences of life imprisonment). 35 As to the "Non-Parole Period/Minimum/Fixed Terms" for all offenders in relation to the same offence over the same period only seventeen per cent received terms greater than eighteen years (including eight per cent sentences of life imprisonment). 36 Mr Berman acknowledged of course the restricted use that could be put to such statistics in the instant case but nevertheless relied upon them as part of his overall submissions to indicate there was an inadequate discount for the pleas of guilty. This, it was contended, was also a factor in demonstrating that the totality of the sentences imposed was excessive. 37 Particular reference was made to the sentence imposed in relation to count 4 (sexual assault category 2) which occurred on 18 December 1990. As stated above this was imprisonment for a fixed term of five years commencing on 4 January 1999 and expiring on 3 January 2004. The sentence in relation to count 1 of seven years was accumulated upon this sentence which resulted in the expiration of that latter sentence being 3 July 2012, upon which the fixed term of three years in respect of count 2 was accumulated, thus giving an ultimate expiry date of 3 July 2015 (the eligibility for parole date) and of course to this was added the additional term of four years in relation to count 2 which brought the ultimate expiry date of the overall sentences to 3 July 2019. 38 It was submitted in written submissions on behalf of the applicant to this Court that bearing in mind the maximum penalty for the offence under s 61C of the Act (now repealed) is twelve years imprisonment, the fixed term of five years imprisonment was manifestly excessive in the light of the maximum penalty and the plea of guilty. It was contended that the applicant would have been entitled to significant leniency with regard to this offence because in the absence of his admissions, the Crown may well have had difficulty proving the offence, given the lapse of time and the absence of other evidence implicating the applicant. This submission involved a more direct application of the Ellis principle. 39 Further, it was argued that no adjustment could possibly have been made to take into account the above accumulation of sentences 40 As to the final ground, that of special circumstances, it was pointed out that special circumstances may exist merely by reason of the imposition of cumulative sentences so that the Court can ensure a proper proportion between the total minimum term and the effective additional term: see R v Simpson (1992) 61 A Crim R 58, R v Thornbury (2000) NSW CCA 526 and R v Sharrock (1999) NSW CCA 289. 41 The effect of his Honour's sentences is that the applicant would serve an effective minimum term significantly greater than the usual statutory proportion. If one applied the statutory ratio to the total effective sentence of twelve years and six months it results in a parole period of approximately five years and one month, whereas his Honour only allowed a parole period of four years. 42 The thrust of the argument by Mr Berman for the intervention by this Court, particularly on the question of special circumstances, is aided not only by the accumulation to which reference has already been made but naturally enough the evidence before the sentencing judge as to the need for treatment and supervision of the applicant bearing in mind the concern expressed by the experts' reports to the effect that without adequate treatment the applicant's risk of re-offending is extremely high. 43 This Court was reminded of the well-known passage from the judgment of King CJ (with which Mitchell J and Legoe J agreed) in Yardley v Betts (1979) 22 SASR 108 at 112, namely "The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not yet developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection for the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced." 44 This passage was again cited with approval by this Court in R v Blackman and Waters [2001] NSWCCA 121 at par 44. 45 These observations are of course in significant respects not directly apposite to the subject case because the present applicant is by no means a first offender or remotely approximating a first offender. However, to the effect that they emphasise the desirability of the successful rehabilitation of offenders they have maintained a continuing importance. 46 Dr Lucas concluded that there were a large number of areas which required exploration during the treatment of the applicant and despite the seriousness of the applicant's conduct, Dr Lucas said that he believed that the applicant was capable of co-operating with a suitable treatment programme. He said that these matters suggested that treatment was not only essential, but likely to be worthwhile. Nevertheless, Dr Lucas said that his prognosis was guarded and when he returned to the community strict supervision and enforcement of parole conditions will be needed. Thus it is contended that it is implicit in the psychiatric and psychological material that the applicant will need not only intensive treatment in gaol, but also a significant period of conditional liberty, with the benefit of supervision and the sanction of parole, to foster his rehabilitation. This is particularly so in the light of the length of time he will inevitably spend in custody. Thus it is argued his Honour did not give adequate to the applicant's particular need for ongoing treatment and supervision or to his prospects of rehabilitation. 47 These various arguments raised on behalf of the applicant were dealt with firmly and resolutely in submissions by Mr Barrett for the Crown who resisted any intervention by this Court either as to the overall effective sentence or the effective non-parole period fixed by his Honour. 48 The learned sentencing judge was faced with a difficult sentencing problem here bearing in mind the applicant's past record for sexual offences and the high degree of criminality from an objective point of view involved in the commission of the subject offences with particular reference to the sexual assaults. There can be no doubt that they did require salutary punishment. 49 Despite the careful and forceful arguments that have been put to the Court by Mr Berman SC for the applicant, together with the written submissions by Ms Burgess, I am unable to conclude that the overall sentence of twenty years and six months imposed by his Honour, an extremely experienced sentencing judge, was for the reasons contended, beyond the sentencing discretion which was available to his Honour. 50 I have concluded however that error has been demonstrated in fixing the parole period of four years which is significantly less than that provided by the statutory ratio. Reluctant as one always is to conclude that a judge had erred in declining to hold that there were special circumstances, I am, nevertheless, of the view in the instant case that error has occurred here. 51 The evidence clearly demonstrates that a lengthy period of rehabilitation under supervision is required for the applicant bearing in mind his past record for sexual offences and the concern expressed in the psychiatric and psychological evidence of the likelihood of his re-offending unless he receives appropriate treatment and counselling. 52 In addition it is necessary to take into account, bearing in mind the length of the sentence, the probability that it will be spent in protection of some form. This is a case where the successful rehabilitation of the applicant is extremely important so far as the protection of the community is concerned. It assumes very particular importance in this case and the sentences should accommodate that requirement. 53 In the event that the Court were to intervene additional material has been put before the Court directed to the rehabilitation steps that have been taken by the applicant over the period that he has been in custody. 54 Without objection an affidavit affirmed on 14 March 2002 by the applicant was placed before the Court by senior counsel for the applicant. 55 Bearing in mind the content of this affidavit and the concern which I have expressed about the need for rehabilitation of the applicant, I set out hereunder paragraphs 2 to 12 of that affidavit. "2. I am currently classified to Goulburn Correctional Centre and have been at Goulburn since before I was sentenced for these matters. 3. I have seen psychologists on a number of occasions since I came to gaol. I referred myself to see the psychologist before I was sentenced and again about the time of sentence. I was seeking treatment for my offending behaviour as well as counselling for other issues. 4. A couple of months after I was sentenced I referred myself to see a psychologist again. Treatment was discussed and a referral was completed for the CUBIT/CORE sex offenders program. 5. However, I was informed that it would be years before I could receive treatment. I was told that I had to be a 'C' classification before I was eligible for sex offender treatment programs. I was told that while I could put my name down to see the psychologist if I had any general issues I wanted to discuss, that I could not receive psychological treatment through those sessions and there was no treatment program I could undertake in the meantime. 6. I am currently an 'A2' classification and I have been told that I can expect to remain at that classification for about a third of my non-parole period. After an 'A2' classification I know I must progress through a 'B' classification. Although I'm not sure how long it should take me to progress through classification, I know it will be many years until I can reach a 'C' classification. The Serious Offenders Review Council has not seen me the last twice they have been at Goulburn. 7. I felt frustrated when I was told I would have to wait years for treatment and couldn't believe it. I know I need treatment and I want to be treated. If I was a junkie I would have been able to go on a program straight away. 8. As it is every day I try to work things out in my head but I feel like I've come to a brick wall because I don't understand the reasons for my behaviour. 9. I've seen a psychologist a few times since then. The last time I saw the psychologist was about a week ago. I intend to keep seeing the psychologist occasionally. 10. During the second half of last year I was forced to move from normal protection to strict protection because I was afraid for my safety. Other inmates were talking of clearing the wing of sex offenders and another inmate was bashed. I expect that I will have to remain on strict protection for the rest of my sentence. 11. For about two years I was working in Cortex sewing prison clothes. I completed a course related to my work. Last week I changed to working as a painter in the wing. This change was offered to me and I decided to accept. 12. Currently I am studying shorthand as I believe it will help me with creative writing in the future. I am also continuing to write poetry. I hope to be able to do creative writing. I would like to be able to do books for children combining information and poetry." 56 Case notes from the Goulburn Correctional Centre in relation to the applicant indicate that his behaviour at that Centre has been very good and he works well. The report speaks encouragingly of his efforts to improve his educational standard and appropriate certificates to that effect are annexed. 57 In the circumstances I would increase the parole period to one of five years and six months which would have the effect that the applicant will serve fifteen years before being eligible to apply for parole. This period to be served would, in my view, adequately take account of the high degree of criminality involved in the various offences which the applicant has committed. 58 To give effect to this proposal I would quash the sentences imposed by his Honour in relation to counts 2 and 11. In lieu thereof I would sentence the applicant on count 2 to imprisonment for seven years commencing on 4 July 2012 and expiring on 3 July 2019. 59 In order to take account of the accumulation and the other special circumstances I would propose that there be a non-parole period of one year and six months to commence on 4 July 2012 and to expire on 3 January 2014, which will mean the applicant would serve fifteen years before being eligible to apply for parole on 3 January 2014. 60 I would sentence the applicant on count 11 to imprisonment for three years commencing on 4 January 2011 and expiring on 3 January 2014. I would not fix a non-parole period in relation to count 11 because it is to be served partly concurrent with count 2. 61 I would propose that there be a recommendation to the Commissioner for Protective Services that the applicant be given appropriate treatment and management whilst in the Corrective Services system to minimise his chances of re-offending in the future and to this end that the Commissioner be provided with copies of the reports by Dr Lucas and Mr Ferrier. 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.