New South Wales Court of Criminal Appeal CITATION: Russell v R [2010] NSWCCA 248 HEARING DATE(S): 22/09/10 JUDGMENT DATE: 11 November 2010 JUDGMENT OF: Campbell JA at 1; Latham J at 2; Price J at 3 DECISION: (i) Leave to extend time to appeal be granted. (ii) Leave to appeal against sentence be granted. (iii) Appeal against sentence allowed in the following respect: Quash the sentence imposed for count 2. In lieu thereof, sentence the applicant to imprisonment with a non-parole period of 7 years to commence on 4 April 2009 and expiring on 3 April 2016 with a balance of term of 2 years to commence on 4 April 2016 and expiring on 3 April 2018. (iv) In all other respects confirm the sentences imposed by the Judge. The earliest date on which the applicant will be eligible for release to parole is 3 October 2016. CATCHWORDS: Criminal law - appeal - sentencing - whether error in commencement date of sentence - whether error in taking into account breach of parole - whether totality considered - whether Fernando principles taken into account - whether applicant sentenced on basis of preventative detention - whether manifestly excessive Crimes Act 1900 s 61I, 61L, s 61J, 61J(2)(b), 61J(2)(g) LEGISLATION CITED: Criminal Appeal Act 1912 s 6(3) Crimes (Sentencing Procedure) Act 1999 s 45(1), 44(2) CATEGORY: Principal judgment Amacha v R; R v Amacha [2010] NSWCCA 180 Gillon v R [2009] NSWCCA 277 Hejazi v R [2009] NSWCCA 282 House v The King (1936) 55 CLR 499 Mulato v R [2006] NSWCCA 282 Musgrove v R (2007) 167 A Crim R 424 Postiglione v The Queen (1997) 189 CLR 295 R v AJP (2004) 150 A Crim R 575 R v Cheh [2009] NSWCCA 134 R v Daley [2010] NSWCCA 223 R v De Simoni (1981) 147 CLR 383 R v Dunn [2007] NSWCCA 312 CASES CITED : R v El-Hayek (2004) 144 A Crim R 90 R v Fernando (1992) 76 A Crim R 58 R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) R v Hibberd [2009] 194 A Crim R 1 R v Johnson [2004] NSWCCA 140 R v King [2009] NSWCCA 117 R v Knight; R v Biuvanua (2007) 176 A Crim R 338 R v McNaughton [2006] NSWCCA 242 R v Simpson (2001) 53 NSWLR 704 R v Way (2004) 60 NSWLR 168 SGJ v R; Ku v R [2008] NSWCCA 258 Veen v R (No 2) (1988) 164 CLR 465 Wakefield v R [2010] NSWCCA 12 PARTIES: Brett Thomas Russell Crown FILE NUMBER(S): CCA 2008/14758 COUNSEL: Mr M C Ramage QC (Applicant) Mr P G Ingram (Crown) SOLICITORS: Voros Lawyers Mr S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT JUDICIAL OFFICER: Woods QC DCJ IN THE COURT OF CRIMINAL APPEAL 2008/14758 CAMPBELL JA LATHAM J PRICE J 11 November 2010 Russell v R Judgment 1 CAMPBELL JA: I agree with Price J. 2 LATHAM J: I agree with Price J. 3 PRICE J: The applicant Brett Thomas Russell pleaded not guilty in the District Court to an indictment containing two counts of indecent assault contrary to s 61L Crimes Act 1900 (counts 1 and 4) and three counts of sexual intercourse without consent contrary to s 61 Crimes Act (counts 2, 3, and 5). The alleged offences occurred on 6 April 2008 and involved a single complainant. 4 After a trial before a jury, verdicts of guilty were returned to counts 1, 2, 4 and 5, but not guilty to count 3. 5 On 2 July 2009, the applicant was sentenced by Woods QC DCJ on count 1 to a fixed term of imprisonment of 18 months commencing 4 April 2009 and expiring 3 October 2010. On count 2, a fixed term of imprisonment of 7 years commencing 4 April 2009 and expiring 3 April 2016 was imposed. On Count 4, a fixed term of 18 months imprisonment commencing 4 October 2009 and expiring 3 April 2011 was imposed. On count 5, the applicant was sentenced to imprisonment with a non-parole period of 7 years commencing 4 October 2009 and expiring 3 October 2016 with a balance of term of 2 years commencing 4 October 2016 and expiring 3 October 2018. 6 As a result of partial accumulation and concurrence, the total overall sentence was 9 years 6 months commencing 4 April 2009 and expiring 3 October 2018 with a non-parole period of 7 years 6 months commencing 4 April 2009 and expiring 3 October 2016. 7 The maximum penalty for a 61 Crimes Act offence is 14 years imprisonment. A standard non-parole period of 7 years applies. The maximum penalty for a s 61L Crimes Act offence is 5 years imprisonment. No standard non-parole period is prescribed. 8 The applicant now seeks leave to appeal against the severity of the sentences imposed. Facts 9 The Judge found the following facts (ROS 1, 2 and 3): "[The applicant] is an aboriginal Australian man born on 13 December 1962. At the relevant time he was therefore forty-six years of age. The victim was a young woman…and was accordingly nineteen y ears of age. The girl was residing with her mother whom she either lived full time with, or visited from time to time, at a flat in Maroubra. This flat was next door to where the offender lived with his partner, a middle aged woman named M. The offender had not long before been released from prison and was living in a sexual relationship with his partner. That lady was a friend of the victim's mother and it was not unusual for the young female victim to drop by from time to time. She was in the habit of taking various people's dogs in the neighbourhood for a walk. On the day in question the victim visited the flat where [the applicant] lived with M, and there was a conversation between the victim, the offender and his partner. Through what I find to be no initially sinister arrangement, [the applicant] said he was going out and the victim went along with him. They went firstly to a hotel where [the applicant] played poker machines, then after that drove briefly to Centennial Park and then drove on to Watsons Bay. At some point the offender formed the intention to engage in some sexual conduct with the girl. She was, as the video and the other evidence plainly shows, and I conclude, a naive and unworldly young person. At the park at Watsons Bay, not far from Camp Cove Beach, the offender and the victim sat down together on the grass and [the applicant] made advances to her. The form that the indecent assault in count one took was that he put his hand up her skirt and touched her on the leg in a sexual fashion. She subsequently said, "I don't want to be touched by you.", and she made it clear that she was upset. Count two occurred within this sequence of events and at the same place, on the grass, and constituted the offence of sexual assault without consent by the insertion of his fingers into her vagina. I refer there to the interview with Constable McEvoy, which is in evidence and particularly pages 23 and 24. She said, and I accept, that when he put his fingers into her vagina he also kissed or licked her vagina. Notwithstanding her vigorous rejection of him, she accompanied him back to Maroubra in the car and then stayed in the flat occupied by [the applicant] and his partner. I accept the victim's evidence that he repeatedly made threats of violence against her if she were to reveal what had occurred. During the course of the afternoon she was in the room occupied by the partner's son, a young lad who had a computer in his bedroom. The boy was not there at the relevant time. The [applicant] was drinking whisky and cola and he offered her a drink, as mentioned in the interview at page 32. She said: "Can you just go away and just fuck off and leave me alone. I don't want to speak to you at the moment, I'm really upset and angry and I'm trying not to get upset in front of [M]." The [applicant] prevailed upon her to look up some songs for him on the computer and demanded also that she look up pornography for him. He threatened to kill her if she did not do that. As she was complying with the threat he knelt beside her and groped her sexually. He started touching her on the leg and she pushed him away. Subsequently he did it again, pulling her underwear across and inserting two fingers into her vagina. She said it hurt a lot and she cried. The incident concluded when [the applicant] heard his partner, [M], coming back." 10 During the sentencing proceedings a victim impact statement was read to the court by the victim's mother. The applicant's offending was said to have severely affected the victim's health, well-being and happiness. The victim was described as "a loving, sweet and very innocent girl before the assaults." The Judge remarked that the "young lady has been deeply disturbed by these offences. This is a conclusion which I would have reached in any event, regardless of the victim impact statement". The Judge said that the victim impact statement had not caused him to increase the sentence he otherwise would have imposed. 11 The Judge found that the offences were not planned in advance but were "opportunistic". Subjective circumstances 12 The applicant, who is of Aboriginal descent, was born in late 1962 and was 46 years old when the offences were committed. His subjective circumstances were before the Judge by way of a report from Terry Smith, a clinical psychologist. The applicant had given evidence during the trial but did not give evidence on sentence. 13 Mr Smith reported that the applicant was the third eldest of twelve children. Both his parents suffered from severe alcoholism and there was sustained violence, particularly by his father, for the first ten years of the applicant's life. 14 Between the ages of 10-15 years he spent most of his time in Boys' Homes because of repeat offending. During the ages of 12 to 18, the applicant ran riot, was on the streets and did what he wanted. He was too frightened to go home and "get bashed by dad." He estimated that he was incarcerated for three to four years of this period and that from the age of 18 he had spent eighty per cent of his time in prison. 15 The applicant started sniffing lighter fluid when aged 10. Around age 11 he commenced consuming flagons of port wine with friends and had progressed to spirits and beer by the following year. He became a binge drinker and experienced prolonged blackouts from alcohol intake. For about four years from the age of 12, he consumed marijuana in moderate quantities but subsequently became addicted to amphetamines. 16 The applicant attended La Perouse Primary School where he had severe conduct problems. He was placed at Chifley Primary School, in an activity-based specialised program for conduct-disordered children. The applicant then attended Matraville High School and left at the end of Year 7 at which time he was barely literate and numerate. 17 The applicant's employment consisted of various positions as a labourer. During his estimated 23 years in custody, he did not complete any educational courses but told the psychologist that through his own efforts, he had improved his literacy skills. He has twelve children from various relationships, three of whom are to his current partner. 18 Mr Smith described the applicant's background history as being complex and disturbing. His early years involved a dysfunctional family characterised by high levels of alcohol, violence and fear. He grew to young adulthood with "a strong sense of anti-social values, sense of being a victim, a strong sense of inadequacy and a fierce determination." Mr Smith reported that, "the adult years had been largely described as, a career offender." The applicant told Mr Smith that he was now at a point in his life where he needed to change. Mr Smith opined that the applicant's prognosis was uncertain. The issue for the applicant was, the psychologist stated, that "over time it has taken very little pressure or frustration for [the applicant] to make the wrong decisions and his re-offending seems to occur very quickly." Prior criminal history 19 The applicant's extensive criminal history reveals prior offences of violence and dishonesty. As an adult, his convictions include robbery whilst armed, assault occasioning actual bodily harm, malicious wounding, assault, malicious injury, escape from lawful custody, stealing and break, enter and steal. For an offence of sexual intercourse without consent, he was sentenced in the District Court in May 1992 to a minimum term of imprisonment of 2 years with an additional term of 2 years. At the same time, he was sentenced to a fixed term of 1 year imprisonment for an offence of maliciously inflict grievous bodily harm. On 18 December 2001, he was sentenced at the Downing Centre Local Court for three counts of aggravated indecent assault. On each count, he received suspended sentences of 6 months imprisonment. His record includes offences of driving a motor vehicle whilst disqualified, some of which have resulted in terms of imprisonment. At the time of the present offences, the applicant was on parole for an offence of driving whilst disqualified for which he had been sentenced to imprisonment for 12 months commencing 5 December 2007 with a non-parole period of 3 months. 20 The Judge described the applicant's criminal history as being "formidable, even in this court." He went on to state that "it [was], of course, the history of violence and sexual misbehaviour on previous occasions which is most pertinent in the present case." Dealing with the appeal 21 The applicant requires an extension of time to seek leave to appeal. I accept that the applicant was not dilatory in his desire to appeal. As his solicitor explains in an affidavit, the delay arose from the consideration of whether the appeal would be against conviction as well as sentence and in fulfilling the requirement for grant of legal aid. I propose that an extension of time be granted. 22 The notice of appeal identifies ten grounds. As grounds 1 and 2 complain about manifest excess of sentence it is convenient to deal with these grounds after considering the specific issues which are raised in grounds 3 –10. Ground 3 : The sentencing Judge erred in failing to impose a non-parole period in respect to the sentence imposed on count 2. 23 The Crown conceded that the Judge had erred by sentencing the applicant to a fixed term of imprisonment for count 2. This was an offence contrary to s 61 Crimes Act for which a standard non-parole period has been prescribed. Section 45(1) Crimes (Sentencing Procedure) Act 1999 removes the discretion to decline to set a non-parole period for such an offence: SGJ v R; Ku v R [2008] NSWCCA 258; Amacha v R; R v Amacha [2010] NSWCCA 180. Ground 3 of the appeal has been established. Ground 4: The sentencing Judge erred in fixing the sentences to commence on 4 April 2009. Ground 5 : Alternatively to (4) above, the sentencing Judge erred in taking into account a breach of parole. 24 These grounds of appeal are centred upon the discussions between the Judge and counsel during the sentencing proceedings. The applicant contended that the Judge had accepted that the sentence should commence on 5 December 2008 and that there should be no increase in his sentence because of the breach of parole as he had served the balance of his parole sentence. The applicant submitted that the Judge overlooked his acceptance of these matters in the sentence that was imposed. 25 The applicant's parole for the offence of driving whilst disqualified had been revoked on 18 April 2008 and he had served the balance of the sentence of 7 months 29 days which expired on 5 December 2008. He had also been sentenced on 15 February 2009, for the offence of larceny, to imprisonment for 4 months commencing 5 December 2008 and expiring on 4 April 2009. 26 The following exchange took place between the Judge and counsel: T 8 L 39-50; T 9 L1-39: "His Honour: When do you say I should start the sentence? Paish: That's the problem your Honour, because there is no doubt that he's served the balance of parole which expired on 4 December 2008. His Honour: 4 December? Paish: 2008, so he served a balance of parole of approximately 8 months. His Honour: Was he then sentenced to something else? Paish: He was then sentenced to this four months in the Local Court for a larceny matter and that sentence expired on 04/04/2009… … His Honour: …but when was the offence? Paish: He was charged on 4 June 2008.The offence was some years prior. It was a DNA match on the system, your Honour. His Honour: Mr Crown why wouldn't I take the view that if that had been dealt with at the time of an exercise of breach of parole that probably would have been an old matter? Crown: Yes, your Honour, I'm content with that. If that's the attitude and Mr Paish is quite right. It's a discretion part for your Honour in some ways. You'd start the sentence on – if your Honour was minded, on 5 December. His Honour: 5 December 08, yes. Very well. Paish: And your Honour on that point I hate to be pedantic, then your Honour would not increase the sentence to reflect the breach of parole, because that's already been reflected in him serving that balance. His Honour: Of course, of course." 27 During his sentencing remarks the Judge said (ROS at 7): "It is appropriate to commence the sentences in this matter from 4 April 2009. Time served before that date is attributable to a previous sentence resulting from and associated with breach of parole." 28 I do not think that the Judge intended to convey by the words "very well" in the exchange with counsel quoted at [26] above, that he had decided to commence the sentence from 5 December 2008. As may be readily seen from the transcript of the proceedings on sentence, the Judge frequently used the words "very well". What his Honour meant, it seems to me, is that he understood what had been put to him by the Crown and the applicant's counsel on that issue. His Honour reserved his decision on sentence during which he considered the submissions. He did not forget what had been put to him but determined to commence the sentences on 4 April 2009. It was within his Honour's discretion to cumulate the sentence on the larceny sentence. I am not persuaded that his Honour erred. 29 There is nothing in the sentencing remarks which indicates that the Judge found that the commission of the offences whilst on parole was an aggravating factor or otherwise warranted an increase in sentence. 30 The applicant's breach of parole, however, remained relevant to the assessment of his prospects of rehabilitation. His record reveals that on six occasions the State Parole Authority had revoked parole orders. These breaches of parole and the applicant's prior criminal history justified the Judge's remarks that "little in this sad history excites any realistic hope of rehabilitation" and "rehabilitation appears minimally relevant." 31 Grounds 4 and 5, in my opinion, have not been established. Ground 6 : The sentencing Judge erred in failing to consider totality. 32 The applicant submitted that as the sentences were accumulated on top of an existing sentence, which in turn had been fixed to commence immediately on the completion of the parole sentence, the Judge should have taken into account the totality of the sentences and adjusted the sentences imposed so as to reflect the total criminality involved. 33 The totality principle required consideration of "the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence": Postiglione v The Queen (1997) 189 CLR 295 per McHugh J at 308. 34 The Judge approached the question of totality by fixing a sentence for each offence and then considering questions of cumulation or concurrence. Concurrent sentences were imposed for the offences committed at Watsons Bay (counts 1 and 2). The offences committed in the applicant's flat at Maroubra (counts 4 and 5) were also fixed to be served concurrently with each other but were partially accumulated upon the sentences for counts 1 and 2. The Judge determined that there should be some accumulation as the offences at Watsons Bay and at Maroubra were separate "in time and place." 35 His Honour was plainly aware that the applicant had been in continuous custody since the revocation of his parole. He recognised in the passage quoted at [27] above that the present sentences were being imposed cumulatively upon the previous sentences. The Judge went on to say (ROS at 8): "Although the final result will be a non-parole period overall of slightly more than three-quarters of the overall head sentence, that seems to me to be appropriate in the circumstances of the case and is within my recognised sentencing discretion." 36 In my view the Judge gave consideration to the principle of totality in relation to both the sentences to be imposed and the sentences that had been served. I am not persuaded that his Honour, an experienced sentencing judge, overlooked this consideration and would reject this ground of appeal. Ground 7 : The sentencing Judge erred in his setting of the effective non-parole period. 37 The applicant contended that the Judge erred in failing to identify reasons to justify his departure from the "statutory ratio". Furthermore, special circumstances should have been found as a result of the accumulation of sentence. The Judge was also said to be in error in failing to take into account in not finding special circumstances that the applicant had been "thoroughly institutionalised by the prison environment" and required a longer period on parole. 38 During the proceedings on sentence, the Judge was not asked to find special circumstances for either of the reasons advanced to this Court nor was he asked to find special circumstances at all. 39 Section 44(2) Crimes (Sentencing Procedure) Act requires that the balance of the term of the sentence must not exceed one third of the non-parole period, unless the Court decides that there are special circumstances. 40 The overall non-parole period of the sentence imposed by the Judge is 79 per cent (round figures) of the total sentence as against the statutory relationship of 75 per cent. The Judge declined to find special circumstances as is required before imposing a sentence where the balance of term is greater than one third of the non-parole period. 41 Having declined to find special circumstances, his Honour was not then obliged to give reasons for not varying the statutory relationship in s 44(2): R v Simpson (2001) 53 NSWLR 704; Musgrove v R (2007) 167 A Crim R 424. However, where the non-parole period exceeds the statutory relationship some reasons should be provided to avoid an inference that there must have been an error or oversight: Wakefield v R [2010] NSWCCA 12 per Grove J at [26]. It was said in R v Dunn [2007] NSWCCA 312 that this was especially the case where cumulation of sentence had taken place. 42 In the present case, the increase of the non-parole period above the statutory relationship could not be thought to have resulted from error or oversight. The Judge made it very clear that his intention was to set a non-parole period that was more than three-quarters of the sentence. He said so both upon determining each individual sentence and upon fixing the overall non-parole period. His Honour considered that such an overall non-parole period was "appropriate in the circumstances of the case." When the whole of the sentencing remarks are considered, I do not think that the Judge failed to give reasons for the overall non-parole period being above the statutory relationship. 43 Whether or not special circumstances are found is a matter for the discretion of a sentencing judge. For the applicant to succeed on this ground, he must show that it was not open to the Judge to reach the decision that he did: Musgrove v R per Simpson J at [24]; R v El-Hayek (2004) 144 A Crim R 90. 44 Although the accumulation of sentence does not necessarily compel a finding of special circumstances, the Judge was obliged to have regard to the outcome of the accumulation. As Howie J explained in Hejazi v R [2009] NSWCCA 282 at [36]: "It may be necessary to find special circumstances and reduce the non-parole period imposed on the second offence to bring about that result. This has been conventional sentencing practice in this State since at least 1992: see R v Simpson (1992) 61 A Crim R 58. However, the ultimate question to be asked is what is the least period the offender is required to serve before being eligible for parole? The answer to that question will depend upon a consideration of all the purposes of punishment and not simply the rehabilitation of the offender." 45 When having regard to the outcome of the accumulation, an important consideration was the requirement that the overall non-parole period appropriately reflected the criminality involved in all of the offences, including its objective gravity and the need for deterrence, both specific and general: R v Simpson. The promotion of the applicant's rehabilitation was undoubtedly an important consideration. The Judge, however, was justifiably pessimistic about the applicant's prospects and was entitled to give less weight to rehabilitation when he looked at the overall sentence. It appears to me that the Judge had this in mind when he said (ROS at 5): "Regrettably, rehabilitation appears minimally relevant. Deterrence is an important consideration, both for him and for others who may be tempted to misbehave in this fashion." 46 The Judge, in my view, determined that a non-parole period of 7 years 6 months was the minimum period of mandatory incarceration required to adequately reflect all of the purposes of punishment. Whilst another Judge may have found special circumstances, it was open to his Honour to make the finding that he did. I would reject this ground of appeal. Ground 8: The sentencing Judge erred in failing to take sufficiently into account the Fernando principles. 47 The applicant complained that the Judge rather than applying the principle established in R v Fernando (1992) 76 A Crim R 58 in terms of mitigating punishment, appeared to have discounted it. The applicant pointed to his background which had been disclosed in Mr Smith's report. 48 In his sentencing remarks, the Judge observed that (ROS at 4): "[The applicant] has a long and tragic history of criminality flowing from deprived family circumstances and exposure to violence." 49 His Honour then referred to the psychologist's report and later on said (ROS at 6): "The decision in Fernando's case, relating specifically to deprivation in the background of aboriginal offenders, is one which cannot be ignored in a case such as this. The historical cycle of deprivation and marginalisation of aboriginal people looms large. Nevertheless, whether this man is an aboriginal person of deprived background, which he is, or a child migrant blighted by the war in Lebanon, or in some other sense himself a victim due to some other kind of poisonous factor afflicting his early life, the reality is, in this matter, that no sentence other than a significant sentence of imprisonment is appropriate. Objectively, the offences are serious, particularly counts 2 and 5." 50 It is evident from these remarks that the Judge recognised the deprivation and disadvantage which the applicant had experienced. The applicant's long history of serious offending and many breaches of parole, however, significantly diminished any mitigation that could be extended to him arising from the socio-economic circumstances and environment in which he had grown up. As Hislop J (with whom McClellan CJ at CL and Howie J agreed) in Gillon v R [2009] NSWCCA 277 said at [30]: "However, it is not every case of deprivation and disadvantage suffered by an offender of Aboriginal race or ancestry that calls for the special approach adopted in Fernando (see R v Newman [2004] NSWCCA 102 per Howie J at [61]) and the mitigating effect of being an Aboriginal person loses much of its force where the offender had committed similar serious offences in the past (see R v Drew [2000] NSWCCA 384 per Newman J at [21])." 51 I am not persuaded that the Judge erred in his approach to the Fernando principle. I would reject this ground of appeal. Ground 9 : The sentencing Judge erred in finding that the seriousness of the offences warranted a 7 year fixed term or non-parole period in respect to Counts 2 and 5. 52 The applicant submitted that a finding should have been made that the offences did not involve a mid-range standard non-parole period. It was further contended that the Judge had not made a finding as to where each of the offences lay in terms of objective criminality. 53 The Crown agreed that the Judge should have made an express finding of relative objective seriousness, but its absence was an "error of process" that would not necessarily engage this Court's discretion to intervene. The Crown argued that the circumstances of counts 2 and 5 were sufficient to warrant a finding that the offences were in the middle range of objective seriousness. 54 As counts 2 and 5 were offences to which a standard non-parole period applied, the Judge had to determine where these offences lay on the scale of objective serious of an offence of their type: R v Way (2004) 60 NSWLR 168. The question whether or not an offence falls in the middle of the range of objective seriousness is to be carefully considered by a sentencing judge and appropriately described. Where the offence is found to rise above or fall below the middle range, the extent to which it is above or below the middle range, should be identified. A failure to do so may suggest error: R v Knight; R v Biuvanua (2007) 176 A Crim R 338; R v Cheh [2009] NSWCCA 134; R v Sellars [2010] NSWCCA 133. 55 Counsel for the applicant put to the Judge during the sentencing proceedings that counts 2 and 5 did not "reach the threshold of medium range offending and therefore the application of a standard non-parole period." His Honour replied: "You say basically that the misconduct is such that in the scale of such offences, it doesn't objectively reach the midrange." 56 The Crown advocate told the Judge that "if this is not midrange, it's awfully close." His Honour was invited to read R v Hibberd [2009] 194 A Crim R 1 in which this Court considered non-consensual sexual intercourse by digital penetration. His Honour said that he would do so. 57 The Judge did not in precise terms characterise the degree of objective seriousness of the offences. In his sentencing remarks he said (ROS at 7): "For each of counts 2 and 5 there is a standard non-parole period of seven years imprisonment. That, of course, is not a binding or automatic minimum. Such an indicative non-parole period is a guidepost, so to speak, and it may be varied up or down by the sentencing Judge depending on the particular case. However, in my view, the standard non-parole period for each of counts two and five is indeed appropriate to fit the circumstances of the present case. In my view, seven years is the appropriate non-parole period for each of counts two and five. There is no rule of law or practice, or sentencing custom, that penetration of the vagina by the fingers will, in every case, involve less culpability than penile penetration. There may be many cases where digital penetration is more culpable than penile penetration and there will be many cases where the reverse is so. In the present matter, the victim was young and naïve and the episodes of digital penetration were intrusive and grossly degrading. However, I do not see this as a case where I should place the seriousness of the offence above the statutory guidepost to which I have referred". 58 Although the Judge did not say that he had assessed the offences as being in the middle of the range of objective seriousness, it seems clear that is what he meant in the passage I have quoted at [57] above. A standard non-parole period applies to an offence in the middle of the range of objective seriousness and takes its place as a reference point or guidepost: R v Way at [122]. The Judge considered, I conclude, that the objective seriousness of each offence was neither greater nor lesser than that of an offence in the middle range of seriousness. 59 The offences were, the applicant argued, below the mid-range of objective seriousness of an offence contrary to s 61 Crimes Act as the offences involved acts of digital penetration rather than penile penetration which has generally been considered to be more serious and: (i) "the offences were opportunistic – not planned in advance; (ii) the only violence was very minor… (iii) although there was a complaint of hurt there was no physical injury sustained; (iv) the duration of each offence was very short – a matter of seconds in each case; (v) no drugs were involved; (vi) the offences were isolated ones or not part of a pattern (usually found in cases involving sexual abuse of children, involving multiple victims as well as breaches); (vii) no threats were made immediately prior or during the commission of the offences." 60 A determination of where the subject offence lies on the scale of objective seriousness of an offence of its type is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v The King (1936) 55 CLR 499; see R v Johnson [2004] NSWCCA 140; Mulato v R [2006] NSWCCA 282. The question is whether or not the determination of the offences as being in the middle of the range was open to the Judge in the circumstances of the offence: Johnson per Spigelman CJ at [34]. 61 The Judge correctly identified in the passage quoted at [57] above, that the assessment of where the offences lay on the scale of objective seriousness, was not determined solely by the form of the non-consensual intercourse: Hibberd at [56]; R v King [2009] NSWCCA 117; R v AJP (2004) 150 A Crim R 575. Other than the form of the non-consensual intercourse, which is an important consideration, relevant matters in determining where on the scale of seriousness the offences lay included the degree of violence, the physical hurt inflicted, the circumstances of humiliation and the duration of the offence: Hibberd at [56]; R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) at [10-11] per Mahoney JA. As was said in King at [36] what is to be considered is the type of non-consensual intercourse in all the circumstances surrounding the offence. 62 The Judge found that in committing the offence in the park at Watsons Bay (count 2) the applicant digitally penetrated the victim by the use of three fingers and had kissed or licked her vagina. The offence at his flat at Maroubra involved digital penetration by the use of two fingers (count 5). The Judge found that neither offence was planned in advance but was opportunistic. The Judge accepted the victim's evidence that the applicant repeatedly made threats of violence against her if she was to reveal what had occurred. He also found that the victim was "naïve and trusting", her person had been "violated" and that the episodes of digital penetration were "intrusive and grossly degrading". He accepted her evidence that the second sexual assault had "hurt a lot" and she had cried. Furthermore, she had been deeply disturbed by the offences. 63 The submission that no threats were made immediately prior to the commission of the offences is incorrect. The Judge found that immediately prior to the commission of counts 4 and 5 the applicant had threatened to kill the victim if she did not look up pornography for him. The threats of violence made by the applicant after the sexual assault at the park and immediately prior to the sexual assault at Maroubra were neither elements of an offence contrary to s 61 Crimes Act nor circumstances of aggravation under s 61J(2)(b) Crimes Act. The Judge was entitled to have regard to these threats when assessing the objective seriousness of the offences. Whilst it is true that the level of violence that accompanied each of the offences was low, the threatened violence was of a high order. 64 The applicant criticised the Judge's description of the episodes of digital penetration as "intrusive and grossly degrading" as being an exaggeration. It was further submitted that if the Judge had regard to the victim's intellectual level in determining the objective seriousness of the offences, he would be in error as the applicant was not charged with aggravated sexual assault contrary to s 61J Crimes Act. A circumstance of aggravation found in s 61J(2)(g) is as follows: "…the alleged victim has a cognitive impairment…" 65 During a preliminary hearing before Hosking DCJ, evidence was given that the victim's mental ability was far below the level of most 19-year-old women and was more on the level of a child of about 10 years old. Her composite IQ put her at the bottom few per cent of adults generally and below an IQ score of 70. Should the Judge have taken into account a cognitive impairment suffered by the victim, the principle in R v De Simoni (1981) 147 CLR 383 would have been infringed, as to do so would have punished the applicant for the more serious offence contrary to s 61J which carries a term of imprisonment for 20 years and a standard non-parole period of 10 years. There is nothing, however, in the sentencing remarks which suggests that the Judge had regard to her low level of mental ability and I would reject any suggestion that he did. His finding that the victim was naïve and trusting was plainly open to him. 66 As an experienced Judge who presided at the trial, he was in a far better position than this Court to assess the impact that the applicant's offending had upon the victim. It is hardly surprising, in my view, that he found the digital penetration to be "intrusive and grossly degrading". I would reject the applicant's criticism of this finding. 67 The short duration of the sexual assaults did not mitigate the objective seriousness of these offences. I explained in R v Daley [2010] NSWCCA 223 at [48]: "In R v Hibberd (2009) 194 A Crim R 1 I said at [56] that the duration of the offence was a relevant consideration in the assessment of the seriousness of an offence contrary to s 61 I Crimes Act . I wish to make it clear that the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased." 68 Having had the advantage of seeing and hearing the victim giving evidence during the trial, the Judge was in a strong position to assess the objective seriousness of the offences. This Court would ordinarily respect that advantage unless it appears that wrong principle has been applied, or an irrelevant consideration has been taken into account (or a relevant consideration has been overlooked) or that the finding itself simply was not open on the evidence: House v The King. I am not persuaded in all the circumstances of counts 2 and 5 that the determination of the offences being in the middle of the range was not open to the Judge. I would reject this ground of appeal. Ground 10: The sentencing Judge erred in sentencing on the basis of preventative detention. 69 The applicant contended that he had been sentenced on the basis of preventative detention which contravened the principles expressed by the High Court in Veen v R (No 2) (1988) 164 CLR 465. It was put to the Court that a significant factor in the sentence appears to have been "simple prevention to keep the applicant away from people whom he may victimise". The focus of asserted error is the following passage in the sentencing remarks (ROS at 5): "Little in this sad history excites any realistic hope of rehabilitation. This man is thoroughly institutionalised by the prison environment and in my view a significant factor in sentencing this man should be simple prevention. Regrettably, rehabilitation appears minimally relevant. Deterrence is an important consideration, both for him and for others who may be tempted to misbehave in this fashion. As I have said, it is a case where one important purpose of the prison sentence must be to keep him away from people whom he may victimise. I say this bearing in mind the decisions of the High Court in Veen's cases and I specifically identify the incapacitative element in this sentence within the range of what I judge to be the just deserts for this criminality, in light of other recognised principles of sentencing." (bold in original) 70 The applicant submitted that the circumstances of the commission of the offences and his subjective circumstances did not justify his Honour's remarks. The Judge, it was said, was strongly and impermissibly influenced by the applicant's sexual history and having fathered a large number of children. The Court's attention was directed to the following remarks (ROS at 4): "Whether he fathered twelve children or some other number is not entirely clear, but certainly I accept that he does have numerous children. This is relevant in the present case because [the applicant] is a strikingly handsome aboriginal man who, it would seem, has little difficulty during the limited time he is out of gaol, forming sexual relationships and fathering children, whatever be the precise number. The situation is quite extraordinary and indeed pathological. It would appear to explain much about this present case." 71 It was further argued that the Judge took into account the applicant's prior criminal convictions in determining the objective circumstances of the offences contrary to the decision in R v McNaughton [2006] NSWCCA 242. 72 The Crown argued that the remarks quoted at [69] above demonstrate that the Judge did not impermissibly incorporate into the sentences any element of preventative detention. On the contrary, the Judge had expressly referred to the limitation provided by authority that the sentence may only provide for the protection of society within the range of an appropriately proportionate sentence and not by the extension of the sentence beyond that range for the purpose of the preventative detention of an offender. Furthermore, the remarks quoted at [70] above were an observation by the Judge that the applicant's intimate relationships and the number of his children provided an explanation for the circumstances that led to the offences on the basis that the applicant had been acting in response to longstanding impulses directed (at that stage) towards the victim. 73 Whilst the protection of the community is a consideration in the sentencing of offenders, a sentence should not be increased beyond what is proportionate to the crime merely to protect the community from the risk of recidivism on the part of the offender. In Veen v R (No 2), Mason CJ, Brennan, Dawson and Toohey JJ said at 473: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible". 74 I would not take his Honour's remarks at [69] above, to indicate an intention to extend the sentence merely by way of preventative detention. The Judge recognised by his reference to "Veen's cases" and to the "just deserts for his criminality" that his consideration of the protection of the community was constrained by legal principle and his obligation was to impose sentences which were proportionate to the offences that the applicant had committed. Furthermore, I do not think that his reference to the applicant's "sexual relationships and fathering children" was other than to provide some explanation for the applicant's conduct. 75 There is nothing in the sentencing remarks which indicates that the applicant's prior criminal history was used by the Judge to impose a disproportionate sentence. The Judge emphasised later on in his remarks that the applicant was not being sentenced for previous offences. The Judge, in my view, gave more weight to considerations of personal deterrence and the protection of the community because of the applicant's prior offending, which was consistent with the principles settled in McNaughton. This ground of appeal has not been established. Ground 1: The total sentence imposed on the Applicant was unduly harsh and severe. Ground 2: The sentences imposed on the Applicant for the 2 sexual intercourse offences were unduly harsh and severe. 76 The applicant referred to Judicial Commission sentencing statistics to support the argument that the sentences were manifestly excessive. The Crown, however, disputed the applicant's contention that only 9 per cent of offenders were sentenced to terms of imprisonment in excess of 7 years for offences contrary to s 61 Crimes Act. The Crown submitted that if reference was made to the sentencing statistics for consecutive and non-consecutive sentences for all offenders, 19 per cent received a sentence of 7 years or more. 77 This Court has previously emphasised that more than the usual cautions should be borne in mind when considering the sentencing statistics for s 61 offences as the definition of "sexual intercourse" covers a wide range of conduct. Careful attention must be paid to the facts of each case: Hibberd at [61]. 78 I consider that the statistics indicate that the sentence for count 2 is a stern sentence but not outside the legitimately available range. Whilst the sentence for count 5 was one of 9 years with a non-parole period of 7 years, the effective non-parole period for this offence, as a result of partial accumulation was only 6 months and the effective balance of term was 2 years. In my view, neither the sentence for count 5 nor the total overall sentence can be described as being manifestly excessive. I would reject these grounds of appeal. Intervention 79 Although error has been identified, I am not of the opinion that some other sentence is warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912. No lesser sentence is warranted and I would not intervene other than to set a non-parole period and balance of term for count 2. 80 The orders that I propose will not impact upon the overall sentence imposed by the Judge. 81 Accordingly, I propose the following orders: (i) Leave to extend time to appeal be granted. (ii) Leave to appeal against sentence be granted. (iii) Appeal against sentence allowed in the following respect: Quash the sentence imposed for count 2. In lieu thereof, sentence the applicant to imprisonment with a non-parole period of 7 years to commence on 4 April 2009 and expiring on 3 April 2016 with a balance of term of 2 years to commence on 4 April 2016 and expiring on 3 April 2018. (iv) In all other respects confirm the sentences imposed by the Judge. The earliest date on which the applicant will be eligible for release to parole is 3 October 2016. ********** 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.