Reported Decision : 137 A Crim R 326 New South Wales Court of Criminal Appeal CITATION : R v Gorman [2002] NSWCCA 516 revised - 05/02/2003 FILE NUMBER(S) : CCA 60426/02 HEARING DATE(S) : 28 October 2002 JUDGMENT DATE : 20 December 2002 PARTIES : Regina Ronald Leslie Gorman JUDGMENT OF : Beazley JA at 1; Sperling J at 13; Carruthers AJ at 90 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/1151 LOWER COURT JUDICIAL Viney DCJ OFFICER : COUNSEL : R Hulme SC for the Crown P Strickland for the Respondent SOLICITORS : S E O'Connor for the Director of Public Prosecutions D J Humphreys for the Respondent CATCHWORDS : Criminal Law - sentencing - Crown appeal - principles applicable to senetncing for multiple offences - totality - extent to which "the one episode" may be a relevant consideration in principle - whether "the one episode" in this instance LEGISLATION CITED : Crimes Act 1900, s61I, s61J Drug Misuse and Trafficking Act 1985 AEM [2002] NSWCCA 58 Bavara [2000] NSWCCA 292 Engert (1995) 84 A Crim R 67 Fahda [1999] NSWCCA 267 CASES CITED: Hammoud (2000) 118 A Crim R 66 Israil [2002] NSWCCA 255 Mill (1988) 166 CLR 59 Pearce (1998) 194 CLR 610 Thomson & Houlton (2000) 49 NSWLR 383 DECISION : 1. Appeal allowed; 2. Sentence quashed; 3. Re-sentence the respondent as follows: (a) Count 1: A term of imprisonment of 5 years, commencing on 10 August 2001, with a non-parole period of two years and six months commencing on 10 August 2001 expiring on 9 February 2004; (b) Count 2: A term of imprisonment of 5 years, commencing on 10 August 2001, with a non-parole period of two years and six months commencing on 10 August 2001 expiring on 9 February 2004; (c) Count 3: A term of imprisonment of six years commencing on 10 August 2003, with a non-parole period of three years commencing on 10 August 2003 and expiring on 9 February 2006, that being the earliest date on which the respondent will be eligible to be released on parole. - 3 -IN THE COURT OF CRIMINAL APPEAL 60426/02 Beazley JA Sperling J Carruthers AJ Friday, 20 December 2002 R v Ronald Leslie Gorman Judgment 1 Beazley JA: I have had the advantage of reading in draft the reasons of Sperling J with which I substantially agree. I wish to say something, however, as to the utility of viewing offences as part of a single criminal enterprise. 2 Sperling J, in his very helpful judgment, has set out the facts of each offence. As his Honour has pointed out, the respondent was originally charged with eleven offences arising out of the events of this night but those charges were eventually reduced to the three in respect of which the appellant pleaded guilty. Even on that reduced scale, the facts presented to his Honour revealed distinct episodes of assaults perpetrated upon the complainant. 3 The correct approach to sentencing for separate offences is clearly stated in Pearce v The Queen (1998) 194 CLR 610, where the majority (McHugh, Hayne and Callinan JJ) said at 623: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common . No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." (emphasis added) 4 In stating the principles in these terms, their Honours did not use language such as "part of the one criminal enterprise" or "the same criminal enterprise" for the purposes of determining the question of concurrence or accumulation as well as totality of sentence. Notwithstanding that, the terminology has survived Pearce. Indeed, it is referred to by this Court in R v AEM [2002] NSWCCA 58. 5 Whilst adopting that categorisation may not necessarily be an error, especially for the purposes of considering questions of totality, there is a risk that it may lead a sentencing judge into error, especially where as here the offences were of the one 'kind', that is, sexual assault (recognising that one was aggravated sexual assault) on the one victim on the one night. 6 Sperling J in his helpful judgment has referred to the remarks of Simpson J in R v Hammoud (2000) 118 A Crim R 66 at 67. For the purposes of explaining my own position on this issue, I refer not only to those remarks (which I set out again) but the next passage in her Honour's judgment. The passages state: "… Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong. As a result of the decision of the High Court in Pearce , the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce , a judge is required to fix 'an appropriate sentence' for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced." (emphasis added) 7 Her Honour's remarks have to be read in context. Hammoud pleaded guilty to two charges of conspiracy to supply a large commercial quantity of heroin contrary to the provisions of the Drug Misuse and Trafficking Act 1985. The first conspiracy charge occurred between 11 and 16 June 1999. The second occurred on 16 June 1999. The co-conspirator in both cases was a corrupt police officer. There were other serious charges not relevant to the present discussion. The trial judge had sentenced Hammoud to concurrent sentences for the conspiracy offences on the basis that the conspiracy involved dealing with the same rogue policeman and occurred in the same period. Dowd J held that to arrive at concurrent sentences on this basis "was an invalid process of reasoning". 8 Simpson J (Mason P agreeing) disagreed that the trial judge's reasoning was invalid, although her Honour agreed with Dowd J that the imposition of concurrent terms failed to have regard to the principled approach to sentencing required by Pearce and, in the result, failed to reflect the total criminality of the offences. It was in that context that her Honour made the remarks to which I have referred. Those remarks, with which I also agree, demonstrate the potential for error where a series of offences are labelled or characterised as being part of the one criminal enterprise without due regard being had to the individual circumstances of each offence. 9 In the present case, the three offences had to be considered separately. There was no common element in any of the offences, in the sense that notion is explained in Pearce. To characterise the offences, therefore, as his Honour did as "one episode of criminality" misapplied Pearce and failed to have regard to the specific circumstances of each individual offence. In my opinion, his Honour's categorisation also led him into error in that he then failed to deal adequately with the totality of the criminality involved. I should add that, although I have expressed my reasoning in different terms, I do not see that it necessarily involves a different approach to that taken by Sperling J, except to eschew the characterisation of these offences as being "part of the same" criminal enterprise or being "one episode of criminality". 10 I wish only to make one further comment. The trial judge, in commenting upon the utility of the plea of guilty, said: "In addition to that, [the complainant] was spared the embarrassment of admitting at the age of sixteen to striking up an acquaintance with a total stranger a number of years older than her late at night on a railway station, accepting drugs from him and agreeing to go with him to a vaguely arranged social gathering in the early hours of the morning." 11 I consider these remarks to be inappropriate. Although his Honour characterised the respondent's conduct as "degrading and humiliating", these comments minimise and trivialise the complainant's trauma should she have had to undergo cross-examination. The remarks also suggest some blame in the victim. 12 Having said that, I agree with the orders proposed by Sperling J on the re-sentencing. 13 Sperling J: This is a Crown appeal. 14 The respondent, Ronald Leslie Gorman, was born on 2 April 1976. The offences were committed on 28 January 2001, when the respondent was 24 years of age. 15 On 18 February 2002, the respondent pleaded guilty to three counts on indictment. Count 1: Aggravated sexual intercourse without consent, contrary to s61J of the Crimes Act 1900, for which the maximum penalty is 20 years imprisonment. The circumstance of aggravation consisted of threats to inflict actual bodily harm with an offensive weapon, namely, a knife. Count 2: Sexual intercourse without consent, contrary to s61I of the Crimes Act 1900, for which the maximum penalty is 14 years imprisonment. Count 3: A second charge under s61I. 16 The victim was a 16-year-old female, previously unknown to the respondent. She was lured by subterfuge into a deserted reserve at night. The offences were committed there. 17 The respondent was initially charged with a number of additional offences arising out of the same episode (11 in all), including detain for advantage and cause injury (kidnapping). There was an earlier successful conviction appeal. On the day he was to stand trial for a second time, the charges were reduced to those referred to above and the respondent pleaded guilty to those charges. 18 The trial judge, Viney DCJ, sentenced the applicant as follows. Count 1: Imprisonment for 6 years, commencing 10 August 2001 and expiring 9 August 2007, with a non-parole period of 3 years. The respondent's release to parole was conditional upon the completion of the CUBIT Sex Offenders Program. Counts 2 & 3: On each count, imprisonment for 5 years, commencing 10 August 2001 and expiring 9 August 2006, with a non-parole period of 2 years. 19 The prosecution brief was tendered by the Crown. It included witness statements and a statement of facts. The statement of facts, insofar as it recounted the objective circumstances of the episode, was in the following terms. On Sunday the 28th of January 2001, the complainant (AH – 16 year old) attended an under 18's dance party at Campbelltown. After attending the Dance Party the victim went to Campbelltown Railway to travel home to Liverpool. While waiting for the train the accused approached her and sat down beside the complainant and started conversation. About 10.30pm, both the accused and the complainant got onto the eastbound train. While on the train the accused asked the complainant whether she wanted to accompany him to Doonside to meet up with some friends. The complainant tried to contact her guardian, however was not able to, so both the complainant and the accused got off the train at Liverpool so that the complainant could attend her residence to get changed. Before the complainant left the railway the accused gave her his mobile phone number and told her to ring him if she was going to be late. The complainant returned then both travelled to Granville Railway then changed trains and travelled to Blacktown arriving just after midnight. Once at Blacktown Railway the accused the complainant caught a taxi to an unknown destination in Doonside. This area is unfamiliar to the complainant and the accused led her to "Nurragingy Reserve", an isolated area, he said to meet up with friends and go to a club at Penrith. Count 1 – Aggravated Sexual assault: (digital penetration) While they walked in the reserve the accused asked to use the victims phone as his battery was flat. After using the phone the accused handed it back to the complainant who noticed that the time was (3.13am). At this point the complainant had her back to the accused and felt him grab her from behind in a "bear hug". The accused placed her on the ground and forced her to lie down on her back by pushing her on the shoulders and placing handcuffs on the complainants wrists. As the complainant was on the ground the defendant took off her shoes. The accused then lifted her up and unzipped her pants and pulled them down. The complainant told the accused "No" with an aggressive reply from the accused "Shut up or I will hurt you!" The complainant still insisted for the accused to stop, but was ignored by the accused as he continued to take the complainants underpants completely off. The accused layed down beside the complainant, placed his fingers into her vagina and moving them back and forward several times at the same kissing the complainant on the mouth. The accused loosened one of the handcuffs and sat the complainant upright. The accused had his shorts down with his erect penis exposed telling the complainant to "play with me". When the complainant refused the accused replied in an aggressive tone "Do you want me to get angry!" When the victim replied "No" the defendant took hold of her hand and forced her to place with his erect penis moving her hand which had hold of his penis in a back and forward motion. As the complainant performed this act the accused again kissed the complainant on the mouth and said, "Give me a head job" and at the same time forced the complainants head down towards his penis and swung her around into a "69" position. The accused told the complainant to "suck it" this was repeated several times and when the complainant told him that she "didn't know how" the accused informed her "put your mouth over it now and suck it!" The complainant did what the accused demanded and at the same time the accused licked the complainants vagina. During this act the accused ejaculated into the complainants mouth which in turn forced the complainant to spit the liquid onto the accused green coloured singlet. Shortly afterwards the accused and complainant stood up and the complainant managed to slip one of her hands free from the handcuffs. The accused grabbed hold of the cuff and walked the complainant to another location near a creek bed. The complainant repeatedly asked "are you going to rape me. Please don't rape me". The accused replied "shut up, I'm not going to hurt you. Do you want me to hurt you. Then do what I say" then pushed the complainant onto the ground and took off the handcuffs and told the complainant to take off her shirt. The complainant complied with his demand and handed the items of clothing to the accused. The accused again pushed the complainant to the ground and while she was on the ground the accused grabbed her around the knees and forced them up and separated them. The complainant continually struggled to close them and continued screaming "no". The accused replied "I've got a knife." The complainant didn't see a knife, but felt a cold object against her leg. The accused was on his knees in from of her and placed his fingers into the complainants vagina and said "You like that don't you?" When the complainant told him that she didn't the accused grabbed her forcibly and said, "WHAT" when the complainant replied that it hurts the accused again said "what" then the complainant agreed that she liked it which resulted in the accused loosening his grip. Count 2 – Sexual Intercourse without consent (Penile vaginal intercourse) The accused pulled his fingers from the complainants vagina and retrieved a condom from a bag which he carried. The condom was a "glide" brand with a bright blue wrapper. The accused showed the complainant the condom and said, "do you know what this is?" The complainant refused to answer and saw the accused placed the condom onto his penis, moved onto the complainant, supported himself with his hands on the ground and placed his penis into the complainant's vagina. The complainant told the accused "It hurts. Stop it it's wrong!" The accused removed his penis from the complainants vagina and pulled the condom from the same and the complainant saw white substance in the end of it. The accused said, "Do you know what this is?" The complainant replied, "Sperm". The accused placed the used condom onto the ground. The accused handed the complainant her clothes and told her to put them on. The complainant dressed in front of the accused after handing her items one at a time. Once dressed the complainant picked up her handbag and noticed that her mobile phone was missing. The complainant walked to where the accused first grabbed her to search for it. The accused told the complainant to sit down. Count 3 – Sexual Intercourse without consent (Penile vaginal intercourse) While the complainant was sitting the accused sat down beside her and started talking to her about the events that occurred. The accused questioned her as to whether she enjoyed the experience. The complainant replied, "No – "It hurt" and that she was a virgin. The accused said that he wanted to see her again and when the complainant replied, "No" the accused appeared angry and pushed the complainant's head down towards his penis and with the other hand pulled his shorts down and forced the complainant to perform oral sex on the accused's erect penis. The complainant informed the accused that she wanted to go home and the accused replied, "Suck it!" The complainant was forced to perform the sexual act again. The accused again unclothed the complainant and forced her legs open. The complainant screamed, "No." several times. The accused unzipped the backpack and retrieved another condom from it and placed it on his erect penis. The accused then penetrated the complainants vagina with his penis and moved it in and out an number of times. The accused forced his penis into the complaint's vagina harder than the first time. The complainant continually told the accused "It hurt" but he didn't stop and continued to sexually assault her. Once the accused stopped and removed his penis from her vagina he pulled the condom from his penis which had white substance in the end of it and threw it onto to the ground. The accused told the complainant to get dressed and asked her if she was going to tell anybody. The complainant replied "No". The accused told the complainant that he knew where she lived as he followed her home when she got changed and he also know where she worked. Shortly afterwards the complainant ran from the scene and flagged down a passing motorist who drove her to Liverpool. 20 The facts under the heading "Count 1, Aggravated Sexual Assault (digital penetration)" include an instance of digital penetration of the vagina, an instance of forced fellatio, a threat with what the respondent said was a knife and a further instance of digital penetration of the vagina. I take the charge to have been in relation to the second instance of digital penetration, that being associated with the threat concerning a knife. 21 The facts in relation to Count 2, sexual intercourse without consent (penile-vaginal intercourse), involved the one instance of that act. 22 The facts relating to Count 3, sexual intercourse without consent (penile-vaginal intercourse), include a threat to kill when the complainant said she wanted to go, forced fellatio and an instance of penile penetration of the vagina followed by further threats. The act relied upon under the third count was the penile penetration of the vagina. 23 The complainant was examined by Dr PA Brennan later on the same day. There were bruises on the legs, abrasions on the abdomen and inner thigh, and a linear red mark across the right wrist. Genital examination revealed oedema of the hymen with blue bruising, possibly obscuring a tear, and a tear from the labia minora to the posterior fourchette. In the doctor's opinion the clinical findings on examination were consistent with the history given to the doctor by the complainant. 24 The respondent did not give evidence at the sentencing hearing. 25 The sentencing judge had before him a report by Ms CR Ryder, psychologist, dated 17 January 2002; a Probation and Parole Service pre-sentence report by Ms M Stevenson, probation and parole officer, dated 2 April 2002; a report by Dr O Nielssen, forensic psychiatrist, dated 3 April 2002; and a report by Dr J Baron, clinical psychologist, of the Department of Corrective Services Forensic Psychology Services Division, Sex Offender Programs, dated 5 June 2002. 26 The reports disclosed an unsettled family background in childhood, involving neglect and sexual abuse, a lack of any consistent schooling, some time at home with the respondent's mother and with his father after their separation but a good deal of time in various institutions and detention centres, and illiteracy. There was a history of substance abuse, progressing from marijuana through amphetamines to smoking heroin. 27 The reports also disclosed that the applicant has very low intelligence, being in the lowest centile of the population. This is referred to as being in the "mildly retarded range". Dr Nielssen diagnosed personality disorder with borderline and anti-social traits. There was also self-reporting of hallucination. Dr Nielssen said that his examination suggested a more serious emotional disturbance warranting closer investigation and more intensive treatment and supervision, but he did not affirmatively diagnose a psychotic illness. 28 When interviewed following his arrest, the respondent denied any assault on the complainant, contending that she had consented to what occurred. According to Ms Stevenson, in her pre-sentence report, the respondent persisted in his assertion that the complainant had consented and in his denial that he had threatened her. In the same vein, the respondent told Ms Stevenson it was true that he had a set of broken plastic handcuffs at that time, which he said he had found at a carnival site, but he denied that he had them with him at the relevant time. He also denied that he had a weapon with him at the time. Ms Stevenson said that the respondent did not seem to acknowledge the serious nature of the offences and did not appear to accept responsibility for his actions. 29 Dr Nielssen recorded that the respondent acknowledged his wrongdoing but denied aspects of the allegations indicating pre-meditation. 30 By June 2002, when Dr Baron reported, the respondent was saying that he acknowledged that the offences were his own fault. However, there were still major discrepancies between his account of what had occurred and that of the complainant. He continued to assert that the sexual conduct was consensual and, without any rational basis, attributed the complainant's account of events to a conspiracy between her and one of his brothers. 31 Dr Baron assessed the respondent as being at high risk of some form of sexual or violent recidivism which could be lowered by undertaking suitable programs and engaging in therapy including sex-offender specific therapy such as the CUBIT (custody based intensive treatment) program available at the MSPC, a centre at Long Bay. 32 In his remarks on sentence, his Honour summarised the objective facts of the case in accordance with the agreed statement of facts. He then said (at p7): As I understand the Crown case, the essential facts relied upon for each count are – count one, the fellatio and threats; count two, the penile penetration at the same location and count three, the penile penetration at the second location. The facts reveal a number of serious sexual assaults on a defenceless young woman. 33 I believe that his Honour was in error in his understanding that the act relied upon under the first count was fellatio with threats. As appears from the first heading and the words in brackets under it in the statement of facts, digital penetration was the act relied upon under that count. And it was the second such act, not the fellatio, which was preceded by the threat involving a knife. 34 His Honour then summarised the evidence relating to the subjective features of the case to which I have referred. 35 His Honour made the following observations concerning the objective seriousness of the case: This was truly a serious sexual assault on a young person in vulnerable circumstances but the objective criminality must be kept in context. It was not a gang rape or attack by a number of persons as was the case in Queen v AEM & Others and the like cases cited in that authority nor were there a number of victims. There were threats of violence but aside from the innate violence of any act of non-consensual sexual assault there was no other gratuitous brutality, the victim was not kidnapped or abducted but rather lured to this location and she got away without further violence. I mention these matters not to detract from the objective criminality but to place the objective circumstances in some sort of framework into which the offences can be categorised. 36 As to the respondent's criminal record, his Honour said: His prior record reveals nothing for this sort of offence. There are some charges of assault but it seems they were in a domestic violence situation. 37 The Crown Prosecutor (at Tr 25) submitted that a discount of 20 per cent for the utilitarian value of the pleas, as allowed in AEM [2002] NSWCCA 58, was analogous. That was in invitation to the sentencing judge to allow a discount of 20 per cent for the utilitarian value of the pleas. His Honour allowed a discount of 25 per cent for the pleas of guilty. His Honour's reasons for that were as follows: The prisoner pleaded guilty at the first opportunity when the indictment was framed in its present state and I am satisfied that demonstrates his remorse and contrition and that it is sincere. Apart from that, and the usual utilitarian benefit that accrues from a plea of guilty, there is the additional benefit in this case that the complainant was spared the ordeal of giving evidence of these events which is a significant relief for her. In addition to that, she was spared the embarrassment of admitting at the age of sixteen to striking up an acquaintance with a total stranger a number of years older that her late at night on a railway station, accepting drugs from him and agreeing to go with to a vaguely arranged social gathering in the early hours of the morning. In the circumstances of this case, his pleas of guilty have an additional mitigating feature that might be otherwise inapplicable. Accordingly, I assess the value of his pleas of guilty at the full twenty five per cent discount. 38 His Honour said, in the course of his remarks on sentence, that he was "satisfied that [the respondent's] remorse is genuine". I take his Honour to have allowed a 25 per cent discount for the utilitarian value of the pleas and for contrition as his Honour perceived it to be. 39 His Honour found special circumstances warranting a departure from the provisional statutory formula for a non-parole period. He said: [H] is prospects of rehabilitation are good provided he undergoes the Sex Offenders Programme in gaol and has an adequate and lengthy period of post-custody supervision. Because of those matters and because of the length of the sentence and the other subjective factors I have mentioned, there are special circumstances such as to justify a longer than usual period of post-custody supervision. 40 The three sentences imposed have the same commencement date. As to the offence under the first count, his Honour started with imprisonment for eight years, which he reduced by 25 per cent to six years for the pleas of guilty, with a non-parole period of three years. 41 On each of the second and third counts, his Honour fixed a sentence of five years imprisonment with a non-parole period of two years. Each such sentence was wholly concurrent with the other and with the sentence under the first count. 42 Release on parole was stated to be conditional. His Honour said: He is to be released to parole provided he has completed the CUBIT, Custody Based Intensive Treatment Programme, if it is available to him, and he is to be supervised by the Probation Service with any follow up to the CUBIT programme as may be available. 43 The sentences imposed may be represented diagrammatically as follows: 0 1 2 3 4 5 6 Count 1 * * * * o o o Count 2 * * * o o o Count 3 * * * o o o (Total sentence: *** ooo ; Non-parole period: *** ) 44 His Honour's reasons for this scheme of sentences were as follows: The next matter is the question of accumulation of sentence. I have noted the Crown arguments that these were discrete and separate incidents, certainly as between counts one and two on the hand and count three on the other. It seems to me that this was one continual episode of the prisoner seeking sexual gratification from the same victim. The offences are not separated so far as the evidence discloses by any appreciable length of time nor of location. It all occurred within the same general area and on the times in the complainant's statement the assaults occurred between about 3.13am and 4.40am when she was picked up by the passer by. I am satisfied that it was one episode of criminality, an accumulation or part accumulation of sentence is not appropriate. I realise that a conclusion such as that makes it difficult to comply with the requirement of the High Court decision in Pearce where the sentencing judge has to impose a sentence in respect of each charge that is appropriate to the criminality of that particular charge presuming apparently that one has to fit such an approach into the other principle of totality of criminality and that each charge stands as if it were the only offence with which the prisoner is to be dealt with. As a corollary to that conundrum, if I were to consider accumulation of sentence, then on the principle of totality I would be forced to so adjust each sentence, that its own particular criminality would have to be reduced in defiance of Pearce because it could lead to a total sentence that transgresses the totality principle. Thus so far as I can divine the principles laid down by the appellate courts, should I look at all of the objective and subjective features of the entire event since I have decided that accumulation is not appropriate and asses a total penalty picture, say 'x' years is a head sentence on the basis of it being a conviction after a plea of not guilty. Then deduct twenty five per cent for the pleas of guilty for the reasons given then divide the total sentence between the three offences in some sort of calculation of seriousness? In some cases that would be a relatively simple equation, say three break, enter and stealing cases of three premises on the same night in the same street. But it is complicated in this case because the most serious offence charged is the first one, aggravated sexual assault s61(j) followed by two charges of sexual assault under s61(i). Of course I cannot import into counts two and three any degree of seriousness that is not charged nor presumably can I likewise carry forward into the penalty for counts two and three, the fact that the more serious offence was committed first. It is a fact, of course, but to give it much weight is to run the risk of imposing a penalty on the prisoner for lesser offences that may offend what was said in The Queen v Di Simoni . I admit I am unable to resolve all of those problems so I propose to approach the task in this way: This was an episode of extended and serious sexual abuse of a young woman in the night at an isolated area. She was inveigled into this lonely spot by the prisoner for the express purpose of satisfying his sexual desires upon her. He did so in a degrading and humiliating fashion and caused her fear, alarm and pain. 45 The submissions by the Crown on appeal may be summarised as follows: (1) The sentences, individually and in total, do not reflect the objective gravity of the offences. (2) The gravity of the offences was affected by significant aggravating features, including (a) Premeditation and planning as shown by the possession of handcuffs. (b) Degradation beyond the physical acts constituting the offences. (c) The degree of force in relation to the final act of penile-vaginal penetration. (d) Threats of violence and threats to the complainants. (e) Threats of retribution if she told anyone, including threats to the lives of herself, he brother and her sister. (3) The discount of 25 per cent for the please of guilty was excessive. A discount of about ten per cent was appropriate. (4) The finding that the respondent had demonstrated sincere remorse and contrition by his pleas of guilty was erroneous. (5) Contrary to Pearce , his Honour first determined a total effective sentence and then determined sentences for the individual offences. (6) His Honour erred in deciding that the sentences should be served concurrently because (as his Honour perceived it) there was only one episode of criminality. There were discrete features of the individual offences which required accumulation, at least in part. (7) There was no power to make release on parole conditional. Pearce and totality 46 In Pearce (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said in their joint judgment, at [45-48]: 45 To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality [ Mill v The Queen (1988) 166 CLR 59]. 46 Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision [ House v The King (1936) 55 CLR 499] . It is, then, all the more important that proper principle be applied throughout the process. 47 Questions of cumulation and concurrence may well be affected by particular statutory rules [Crimes Act, s444(2) and (3); Sentencing Act 1989 (NSW), s9; see also Sentencing Act 1991 (Vict), s16] . If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. 48 Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences [ R v Lomax [1998] 1 VR 551 at 564, per Ormiston JA]. 47 The passage referred to in Mill v The Queen (1988) 166 CLR 59 is as follows: The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing , 2nd ed. (1979), pp. 56-57, as follows (omitting references): The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'. See also Ruby, Sentencing , 3rd ed, (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred. The totality principle has been recognized in Australia. In Reg. v Knight (5), the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ.) said, in a joint judgment: it seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker L.C.J. in Reg. v. Faulkner (6), 'at the end of the day, as one always must, one looks at the totality and asks whether it was too much'. 48 As I understand this approach, sentences for separate offences should prima facie be served cumulatively, that is, one after the other, so that the offender serves a sentence which is appropriate for each offence. That is to be moderated, however, if, as was said in Faulkner, that would be "too much". 49 Prior to Pearce, the principle of totality was usually applied in one of two ways. As was said by Simpson J in Hammoud (2000) 118 A Crim R 66, at [9]: The first was to select a single charge (a lead or representative count) and, in accordance with the principle of totality, on that charge impose a sentence that properly reflected the over-all criminality involved in all offences. On the remaining counts, comparatively lenient sentences, frequently fixed terms, were imposed. The second approach was, again with the principle of totality in mind, to select a sentence appropriate to the over-all criminality and impose that sentence in respect of all or most of the charges. Both of these approaches avoided the need for elaborate exercises in accumulation of sentences. 50 Pearce has proscribed both those approaches. As Simpson J said in Hammoud at [10]: Neither of these approaches would survive the application of the Pearce principles. In the case of a judge adopting the first approach, the lengthy sentence imposed in relation to the lead or representative count would appear excessive and those imposed on the remaining counts would appear inadequate. None would represent "an appropriate sentence" for the specific offence for which it was imposed. On the second approach, all sentences would appear excessive for the specific charges to which they related, even when the ultimate term to be served was unimpeachable. 51 In the present case, the sentencing judge adopted the first of these approaches. That is no longer permissible and constitutes error. The approach now required is to fix appropriate sentences for each offence and to apply the totality principle by the extent to which the sentences are made concurrent or cumulative. 52 Whether the offences are unrelated or form part of the same episode or course of conduct is a relevant consideration. As Simpson J said in Hammoud, at [7], in a passage with which Mason P agreed, I do not agree that for the sentencing judge to take into account, in considering questions of concurrence and accumulation, features that were common to the two conspiracy offences, denotes an invalid reasoning process. Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong. 53 The extent to which the sentences are made concurrent or cumulative is determined by the dates set for commencement of the respective sentences. The commencement dates of the respective sentences is the key to the application of Pearce. It may be useful to illustrate that with three re-sentencing decisions of this Court in sexual assault cases decided since Pearce. The code in the following diagrams as follows: (Fixed term x x x . Sentence with non-parole period * * * ooo ) Bavara [2000] NSWCCA 292 0 1 2 3 4 5 6 7 8 9 10 11 12 Count 1 x x x x x (FT 4y) Count 2 x x x x x (FT 4y) Count 3 x x x x x x x (FT 6y) Count 4 x x x x x (FT 4y) Count 5 x x x x x x x (FT 5y) Count 6 x x x x x x x (FT 6y) Count 7 * * * * * o o o o (9y, NPP 5y) Hammoud (2000) 118 A Crim R 66 0 1 2 3 4 5 6 7 8 Count 1 x x x (FT 1y) Count 2 x x x x x x x (FT 3y) Count 3 x x x (FT 1y) Count 4 x x x x x x x x x (FT 4y) Count 5 * * * * * o o o o o o (6y, NPP 2½y) AEM [2002] NSWCCA 58 0 1 2 3 4 5 6 7 8 9 10 11 12 13 Count 1 * * * * * * * * o o o o Count 2 * * * * * * * * * o o o o 54 It is difficult to envisage circumstances in which it would now be permissible to commence all of a series of multiple sentences on the same date, as was done in the present case. On the other hand, provided that the over-all effective sentence is not inappropriate for the totality of criminality involved, there may be limited cause for an appellate court to examine in fine detail the appropriateness of each sentence in isolation or the way in which commencement dates have been set. A failure to determine appropriate sentences for each offence or the appropriateness of relative concurrence or cumulation may, however, lead to error in the over-all result. That is a danger which Pearce is designed to avoid and which the appellate courts will be astute to correct. The one episode? 55 For the purpose of the application of the totality principle, should the offences in the present case have been treated as having occurred in the course of the one episode? 56 I would approach that question in the following way. If, say, the first instance of penile-vaginal penetration had not occurred and everything else had been the same, an appropriate over-all effective sentence would not be very substantially less. By contrast, if that were the situation on this occasion (that is, with one of the instances of penile-vaginal penetration deleted) and there was then a separate offence of the same kind involving a different victim on a different date, an over-all effective sentence would have to be very substantially higher than an appropriate sentence in the present case. 57 Relevantly, the offences in the present case were committed in the course of the same episode. His Honour so found. However, each offence contributed to the total criminality involved and care had to be taken to ensure that the over-all effective sentence was appropriate having regard to the offences which were committed in the course of that episode. Psychological status of the respondent 58 The low intelligence of the respondent was a relevant consideration. So too was the respondent's personality disorder. Both were likely to have reduced the respondent's appreciation of the effect of his behaviour on the victim. The respondent's comment that he would like to see the complainant again demonstrated the absence of a realistic appreciation by the respondent of the effect of his conduct. 59 Such an offender may be regarded as inappropriate to be made the medium of a deterrent sentence, so that general deterrence may then be given little weight in the sentencing process. (The authorities are comprehensively reviewed in the article Sentencing Mentally Disordered Offenders: The Causal Link by S Traynor, Sentencing Trends and Issues, vol 23, Judicial Commission of New South Wales; see particularly Fahda [1999] NSWCCA 267 and Israil [2002] NSWCCA 255.) 60 The respondent's psychological status may decrease the weight to be given to general deterrence but increase the weight to be given to protection of the public: Engert (1995) 84 A Crim R 67. There was evidence in the present case of a potential for similar conduct. Contrition 61 It was not an error of law for the sentencing judge to find that the respondent was genuinely contrite. That finding was open on the basis of the pleas of guilty alone. Little allowance could legitimately be made on that account, however, in circumstances where the respondent had not given evidence and where there was no other evidence of contrition. Discount for the utilitarian value of the plea 62 Thomson and Houlton (2000) 49 NSWLR 383 is the guideline judgment in relation to this topic. Spigelman CJ, with whom other members of the court agreed said, at [151]-[155]: 151 The task of this Court is to identify a discount range which is appropriate and which will serve the public interests sought to be attained in New South Wales from encouraging early pleas of guilty. 152 In my opinion, the appropriate range for a discount is from 10-25 percent. 153 The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. 154 There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 155 The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 63 Wood CJ at CL said, at [163]: I consider these guidelines to properly reflect the mitigating circumstance associated with the utilitarian value of a guilty plea. Adherence to them, in the absence of compelling reason to the contrary, can only assist to secure greater certainty and equity in sentencing practice. 64 In my view, where an offender pleads guilty immediately upon charges being reduced by the Crown, that is "an exceptional case" justifying a discount at or close to the top of the range, notwithstanding that the proceedings have long since been set down for trial. To hold otherwise would offend against considerations of equity to which Wood CJ at CL referred. In addition to the saving in the cost of a trial, the fact that the complainant was spared the stress of giving evidence was also a relevant consideration. 65 I do not think, however, that the sentencing judge was right to take into account the additional factor of the complainant being spared the embarrassment of having, in effect, to confess publicly to her own foolishness in accompanying a stranger to a deserted place late at night. No allowance in mitigation of sentence should be made for the naivety of the victim, even in such an indirect way. 66 It is a relevant consideration that the Crown Prosecutor invited the sentencing judge to discount by 20 per cent for the utilitarian value of the plea. The Crown cannot now contend that no more than a ten per cent discount was warranted. 67 I would not regard the sentencing judge's allowance of a 25 per cent discount for the pleas of guilty as erroneous in these circumstances, although minds may differ as to the precise discount to allow. (As will appear, I have proposed a 20 per cent discount on re-sentencing.) Sentence manifestly inadequate? 68 The overall effective sentence imposed by his Honour was the sentence under the first count of six years imprisonment with a non-parole period of three years, the sentences under the second and third counts being entirely concurrent with that sentence. His Honour arrived at that sentence by commencing with eight years imprisonment, discounting that by 25 per cent for the pleas of guilty, and finding special circumstances warranting a reduction in the provisional statutory non-parole period of 75 per cent of the sentence to 50 per cent of the sentence. 69 The respondent's psychological status was an important factor to be taken into account. What weight was to be given to that factor was very much a matter of discretion. The consideration could legitimately affect the result quite significantly. But, allowing as much weight for that factor as could legitimately be given to it, I would regard the over-all effective sentence as a manifestly inadequate response to the objective seriousness of the offences. In particular, a non-parole period of only three years was patently inadequate. 70 His Honour made release on parole conditional upon completion of the CUBIT programme. His Honour had no power to impose such a condition. 71 The appeal must be allowed and the applicant re-sentenced by this Court. Re-sentencing 72 The objective facts of the case need not be restated. 73 I have recorded his Honour's observations in relation to the respondent's criminal record. I think that was altogether too liberal a construction to put on that record. There were a significant number of property offences and a very bad driving record, including a conviction for dangerous driving. The picture is that of a young man utterly out of control. 74 I have reviewed the evidence concerning the respondent's personal history and his psychological status. His low intelligence and personality disorder make him an inappropriate medium for general deterrence. The prospect of re-offending is there but, with the appropriate management, I would not regard that prospect as outweighing the mitigating consideration in the absence of a diagnosed psychopathic condition. 75 As to contrition, evidence tendered on appeal now includes an affidavit by the applicant. In it, he says: I am very upset about the offence. I am to blame. I regret doing what I have done. I go through it every night. I dream about it every night. I can't get this girl out of my head. I saw a psychiatrist at Parklea. I also used to speak to the Drug and Alcohol lady about it. I was prescribed Zyprexa 5mg. I continue to take one tablet per night. Zyprexa is an anti-depressant. I can't believe I have done something like this. If I could fix it I would but I can't. 76 Such things are easily said but there was no challenge to the respondent's evidence that he has been prescribed medication to allay feelings of guilt. In another affidavit, the respondent's solicitor quotes Mr W Golledge, manager of prison classification in the Corrective Services Commission, as saying that the respondent "appears to be addressing his offending behaviour". There is unchallenged evidence of the respondent's diligent and co-operative approach to departmental programmes. 77 On the sentence, I would now accept that the respondent has developed some insight into the unacceptability of his behaviour and that he is now willing to shoulder some responsibility for it. 78 The respondent is currently at the MSPC, Long Bay. He says that he was first held at Grafton gaol, where he was attacked and put into protection. Then, at Parklea, he was threatened again and was placed in strict protection, which he says involved being locked up continuously. At the MSPC, he does not have this problem because he is apparently not under threat from other sex offenders. 79 As for the future, the respondent's solicitor quotes Mr W Golledge as saying that the respondent would be reclassified if he was re-sentenced; that, if the effective non-parole period were increased by six to twelve months, it is likely that the respondent would remain at the MSPC; but that, if the effective non-parole period were increased by more than twelve months, it is likely that the respondent would be moved out of the MSPC and into strict protection again. 80 The Court reserved its decision on whether to admit the evidence of Mr Golledge's predictions. For my part, I would admit the evidence. Whilst this Court cannot concern itself with the minutiae of prison administration, whether a sentence will be served in protection has long been recognised as a relevant consideration in sentencing and re-sentencing. Where unchallenged evidence is proffered about the likelihood of that, the evidence should be received. I would not draw a line in that regard between what the Court may know about protective custody in a general way and what may need to be established by evidence in a particular case because it is in some way out of the ordinary. 81 The likelihood of being kept in strict protection if the effective non-parole period were increased in this case by more than twelve months is a factor I would then take into account in re-sentencing the respondent. 82 In terms of seriousness, I would rank the offences for which the respondent has been convicted in the following way. The offence under Count 3 is the most serious. It involved an instance of penile-vaginal penetration with a degree of violence sufficient to cause injury to the genital tract. I would rank the offences under Counts 1 and 2 as of lesser and equal seriousness. That under Count 1 involved digital penetration with the threat involving a knife. Count 2 involved a further instance of penile-vaginal penetration. 83 For the offence under Count 3, I would begin with 7 and a half years. I arrive at that figure having taken into account the following considerations in mitigation: the respondent's psychological status; a degree of genuine contrition; the likelihood that the balance of the sentence will be served in strict custody; and, this being a Crown appeal, that the sentence is to be set towards the lower limit of the exercise of sentencing discretion. 84 I would discount that by 20 percent for the utilitarian venue of the pleas, on the basis that the pleas were entered at the earliest practicable opportunity and on the basis that the trial would not have been very lengthy. 85 I would find special circumstances, arising in particular from the likelihood that the balance of the sentence will be served in strict protection. I would retain the sentencing judge's determination of 50 per cent of the sentence as appropriate for the non-parole period, although for a different reason. 86 For these reasons, I would re-sentence the respondent for the offence under Count 3 to imprisonment for six years with a non-parole period of three years. 87 Conformably, for each of the offences under Counts 1 & 2, I would begin with imprisonment for six years and three months. I would discount that by 20 per cent for the utilitarian value of the plea, and I would set a non-parole period of two and a half years. 88 Applying the principle of totality, I would make the sentence under Counts 1 and 2 concurrent, but I would delay the commencement date of the sentence under Count 3 to produce an over-all effective sentence of eight years with a non-parole period of five years. Result 89 I propose the following orders: 1. Appeal allowed. 2. Sentence quashed. 3. Re-sentence the respondent as follows: (a) Count 1: A term of imprisonment of 5 years, commencing on 10 August 2001, with a non-parole period of two years and six months commencing on 10 August 2001 expiring on 9 February 2004. (b) Count 2: A term of imprisonment of 5 years, commencing on 10 August 2001, with a non-parole period of two years and six months commencing on 10 August 2001 expiring on 9 February 2004. (c) Count 3: A term of imprisonment of six years commencing on 10 August 2003, with a non-parole period of three years commencing on 10 August 2003 and expiring on 9 August 2006, that being the earliest date on which the respondent will be eligible to be released on parole. 90 Carruthers AJ: I agree with Sperling J. -oOo- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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