Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AAT v R [2011] NSWCCA 17 Hearing dates: 9 February 2011 Decision date: 21 February 2011 Before: McClellan CJ at CL at [1] Buddin J at [2] Schmidt J at [48] Decision: 1. Leave to appeal is granted and the appeal is allowed. 2. The sentences imposed in the District Courts are quashed and the following sentences are substituted: (a) in respect of count 2, the applicant is sentenced to a non-parole period of 3 years 3 months to commence on 13 March 2009 with a balance of term of 2 years imprisonment; (b) in respect of count 3, and taking into account the Form 1 matter, the applicant is sentenced to a non-parole period of 3 years 3 months to commence on 13 September 2009 with a balance of term of 2 years imprisonment; (c) in respect of count 1, and taking into account the Form 1 matter, the applicant is sentenced to a non-parole period of 4 years 3 months to commence on 13 June 2010 with a balance of term of 2 years imprisonment which will expire on 12 September 2016; (d) in respect of count 4, the applicant is sentenced to a fixed term of 12 months imprisonment to commence on 13 June 2012; (e) in respect of count 5, the applicant is sentenced to a fixed term of 6 months imprisonment to commence on 13 December 2012. 3 The applicant will be eligible for release on parole on 12 September 2014. Catchwords: CRIMINAL LAW – appeal against sentence – various offences of sexual intercourse with a person under the age of 10 – offences of producing child pornography and using the internet to access child pornography - whether sentencing judge erred in treating offences as falling into the "worst category of case" – whether sentencing judge erred in relation to discount permitted for pleas of guilty and assistance to the authorities Legislation Cited: Crimes Act 1900 (NSW) Criminal Code Act 1995 (Cth) Cases Cited: Dolman v R [2010] NSWCCA 137 Eedens v R [2009] NSWCCA 254 Glover v The Queen (2009) 193 A Crim R 292 MLP v R (2006) 164 A Crim R 93 Pearce v The Queen (1998) 194 CLR 610 R v AJP (2004) 150 A Crim R 575 R v Davis [1999] NSWCCA 15 R v Schodde (2003) 142 A Crim R 307 R v Simpson (2001) 53 NSWLR 704. R v Way (2004) 60 NSWLR 168 R v Woods (2009) 195 A CrimR 173 SZ v The Queen (2007) 168 A Crim R 249 Category: Principal judgment Parties: AAT (Applicant) Regina (Respondent Representation: Counsel: S Odgers SC/A Goldsworthy (Applicant) J Pickering (Crown) Solicitors: Tully & Co (Applicant) S Kavanagh (Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/105363; 2009/116896; 2009/151790; 2009/264115 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-06-03 00:00:00 Before: Finnane DCJ File Number(s): 2009/105363; 2009/116896; 2009/151790; 2009/264115 Judgment 1 McClellan CJ at CL: I agree with Buddin J. 2 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court. He pleaded guilty in the Local Court to five offences and adhered to those pleas when he appeared for sentence. For convenience I shall refer to each of the charges as counts although that is not the technically correct description of them as they appeared on a committal for sentence document rather than on an indictment. The first three counts to which the applicant pleaded guilty were brought pursuant to s 66A of the Crimes Act 1900 (NSW) and alleged that the applicant had had sexual intercourse with a child under the age of 10 (counts 1 – 3). The maximum penalty for each of those offences is imprisonment for 25 years and a standard non-parole period of 15 years is applicable to them. The applicant also pleaded guilty, pursuant to s 91H(2) of the Crimes Act, to producing child pornography (count 4) and to a further charge, pursuant to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth), of using the internet to access child pornography (count 5). 3 In respect of the first of the three counts involving sexual intercourse with a child under 10, the applicant received a non-parole period of 5 years and 3 months with an overall term of imprisonment of 7 years. A further offence of aggravated indecent assault, which appeared on a Form 1 document, was taken into account on sentence at the request of the applicant. That sentence was ordered to commence on 13 March 2009. 4 In respect of the second of those counts, the applicant received a non-parole period of 3 years 3 months with an overall term of imprisonment of 5 years 6 months. That sentence was ordered to commence on 13 March 2011. 5 In respect of the third such count, and taking into account a further offence of aggravated indecent assault which appeared on a Form 1 document, the applicant received a non-parole period of 3 years 3 months with an overall term of imprisonment of 5 years 6 months. That sentence was ordered to commence on 13 March 2012. A fixed term of 12 months to commence on 12 June 2014 was imposed in respect of the count of producing child pornography, whilst a fixed term of 6 months to commence on 12 December 2014 was imposed in respect of the count of using the internet to access child pornography. Each of those latter two offences attracts a maximum penalty of 10 years imprisonment. The effective total sentence is thus one of 8 years 6 months imprisonment with the effective non-parole period being 6 years 3 months which will expire on 12 June 2015. 6 The following background to the offences may be gleaned from the agreed statement of facts which was in evidence. The applicant, who was aged 22 at the time of the offences, is the older half brother of the victim (KT), who was then aged 8. The first offence in time occurred whilst they were living together in the family home whereas the other offences occurred after the applicant had moved into separate accommodation. 7 The applicant had come to notice in November 2008 as a result of information received by the Australian Federal Police (AFP) from New Zealand Customs officers concerning possession of child pornography by another offender, DH. In November 2008 DH returned to Sydney from New Zealand. The following day the applicant drove DH to his address where he stayed overnight. 8 The AFP began electronic monitoring of the applicant's premises. During the evening of 5 December 2008 that equipment picked up noises which were coming from the applicant's bedroom. The sounds were consistent with two persons engaging in sexual activity, and in particular, acts of mutual oral sexual intercourse. 9 Urgent arrangements were made to have NSW police officers attend the premises. When entry was forced, the officers found the applicant in the living area and KT hiding in a cupboard. The forced entry, which had included banging on the door, created considerable noise. KT later said that he had hidden because he had been frightened by the noise. KT was taken to Westmead Children's Hospital, where he was examined and treated. Shortly thereafter, he began counselling sessions with a social worker. 10 The applicant was arrested but declined to participate in a recorded interview. He was then charged and, after spending 6 days in custody, was released on bail. (The applicant received credit for that period of time which was reflected in the commencement date of the sentences). 11 KT initially told investigating police that that he did not want to talk about what had happened between the applicant and himself at the premises. Subsequently however, he disclosed that there had been instances of sexual activity between them and that the applicant had taken photos of him. That activity, he said, had commenced in April 2008. These disclosures were made to police officers, to counsellors and to his mother over a period of months. 12 The AFP continued to electronically monitor the applicant's activities, and in February and March 2009 ascertained that the applicant had referred, in "chat room" exchanges, to being aware that the police knew about three of the photos which he had taken of KT. The applicant disclosed that he was also aware that the police had obtained this information not from his computer, but from New Zealand authorities, it having been taken from a laptop computer seized from DH. The applicant was re-arrested on 19 March 2009. 13 In mid 2009 the AFP were advised by New Zealand authorities that a further 17 photos, that had been taken by the applicant of KT, had been found on DH's computer. These photos were found to contain child pornography material, which was rated variously at "levels 1, 2 and 3" on the five level COPINE scale (1 being the lowest level) (count 4). 14 In October 2009 KT made detailed disclosures to police in which he identified specific incidents of sexual abuse. So far as events that had occurred on 5 December 2008 were concerned, KT said that the applicant had caused him (KT) to suck his penis (count 1) and that the applicant had then sucked his (KT's) penis (count 2). He said that the applicant had also rubbed his penis against KT's penis (the first Form 1 matter). He then referred to an incident which had occurred in the family home, in around May 2008, during which the applicant had sucked KT's penis (count 3). He said that during the same incident the applicant had rubbed his penis against KT's penis (the second Form 1 matter). 15 During the course of monitoring the applicant's on-line activities in December 2008, the AFP discovered that he had received seven images attached to an email on his home computer. They found that he had viewed all seven as thumbnails, and had then enlarged two of the images which showed pornographic images of an unknown male child, who was aged about 10. That material had a rating of "level 1" on the COPINE scale (count 5). 16 A victim impact statement, prepared by a senior social worker at the Children's Hospital who had been extensively involved in counselling KT, provided some insight into the significant impact that the applicant's offending conduct had had upon him. It revealed that he had displayed symptoms of post-traumatic stress and that he continued to suffer nightmares 17 The case which was advanced on behalf of the applicant consisted of a psychologist's report, handwritten letters of apology from the applicant to KT and to other members of the family, and a number of character references. That material revealed that the applicant's parents separated when he was 3 years of age. In due course his father re-married and KT was born as a result of that relationship. The applicant attended an exclusive GPS school for a period of 7 years. He was overweight, lacked any proficiency in sporting activities and was one of very few students with an eastern European background. As a result, he was subjected to constant bullying and abuse. On other occasions he was ostracised, and as a consequence, experienced constant feelings of isolation. He described those years as having been "horrendous". The bullying put the applicant in a constant state of anxiety and led him, on occasions, to feign illness in order to avoid having to attend school. From the age of 14, the applicant commenced using cannabis, alcohol and ritalin (for which he did not have a prescription) on a regular basis in an endeavour to block out the pain of his daily existence. Although his parents knew that the applicant was unhappy at school, they were unaware that he was being bullied. That was because the applicant was too embarrassed to tell them. His mother did indicate however that on one occasion he had asked her to pick him up from school and that when she had arrived she had found him "hiding in the bushes". Nevertheless, the applicant's parents did take him to see a number of specialists and, in due course, a psychiatrist diagnosed the applicant as being depressed. He was then commenced on anti-depressant medication. The applicant did not however reveal to the psychiatrist anything of his underlying problems, including issues he was having surrounding his sexual orientation. At the commencement of year 10 the applicant changed schools. He appeared to have made considerable progress at his new school and, as a result, his not inconsiderable musical talents came to the fore. Upon leaving school, the applicant completed a TAFE course in sound engineering and thereafter remained in continuous employment. He initially worked for a company that manufactured internet security software but, by the time of his arrest was employed in a well paid position in an IT company. 18 The applicant told the psychologist that he had been the victim of sexual abuse himself as a child. By the age of 13, the applicant had become aware that he may be homosexual. By his late teens he was accessing homosexual websites on the internet. As a result he came into contact with men involved in paedophilia. Although his parents and extended family were unaware of this aspect of his life until his arrest, he nonetheless retains their support. The psychologist who examined the applicant expressed the opinion that he suffered from severe depression and anxiety and went on to say that he was "one of the most psychologically troubled young men I have seen in 30 years of practice." Since entering custody, the applicant has sought to be enrolled in the CUBIT program which is designed to assist sex offenders. He was advised however that he is ineligible to enter the program until such time as he is closer to his release date. 19 The sentencing judge concluded that the matters involving sexual intercourse were "very serious" and that they were "at the highest level of seriousness". On the other hand, his Honour indicated that there were a number of features of the case which operated to ameliorate the otherwise appropriate sentences. His Honour allowed a discount of 25% for the applicant's pleas. He then allowed a further 40% for his assistance to authorities, the result being that an overall discount of 65% on account of those factors was allowed. His Honour also took into account the applicant's good character, including the fact that he had no prior convictions, the fact that he had indicated some insight into his offending conduct and had shown remorse, and that he suffered from an anxiety disorder which was related to his traumatic school experiences and what his Honour described, in general terms, as "his sad background". His Honour also found that the applicant enjoyed "good prospects of rehabilitation". His Honour then observed that but for the applicant's pleas of guilty and his assistance to the authorities, the offences of sexual intercourse each called for the "imposition of the maximum penalty, a fifteen year standard non-parole period and a maximum sentence of twenty". 20 The applicant relies upon the following grounds of appeal: Ground 1. The sentencing judge erred in determining that the offence in count 1 was in the worst case category. Ground 2. The sentencing judge erred in determining that the offence in count 1 required, but for the plea of guilty and assistance to authorities, the imposition of the maximum penalty. Ground 3. The starting point sentence for count 1 was manifestly excessive. Ground 4. The starting point sentences for counts 2 and 3 were manifestly excessive. Ground 5. The sentencing judge erred in failing to find "special circumstances" in relation to the sentence imposed on count 1. Ground 6. The sentencing judge erred in failing to find "special circumstances", other than by reason of accumulation, in relation to the sentences imposed on counts 2 and 3. Ground 7. The sentencing judge erred in determining the head sentence for counts 2 and 3. 21 It is pertinent to observe at this stage that counsel for the respondent candidly conceded that the sentencing judge had made a number of errors in the sentencing process, albeit that some of them favoured the applicant. The first such error was his Honour's understanding that the maximum penalty for the three s 66A matters was 20 years imprisonment whereas it was in fact 25 years. Accordingly, it is common ground that this court must "exercise its own sentencing discretion (albeit that exercise may lead to a conclusion that no lesser sentence is warranted in law). In exercising this discretion… regard [must be paid] to the circumstances as they exist at the date of the application": R v Schodde (2003) 142 A Crim R 307 [at paras 26-7]. The Crown's position is indeed that no lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912. 22 Given those errors, it will not be necessary to make a determination about each of the individual grounds although some reference to the submissions which were advanced is called for. Grounds 1 - 3 23 It is convenient, as the parties did, to address these grounds together. On behalf of the applicant it was contended that it was not open to the sentencing judge to find that the objective seriousness of these offences placed them in the worst category. In advancing this submission, counsel pointed to the sentencing judge's finding that the offences were not "committed as part of some organised criminal activity". Nor, he submitted, were they committed in the context of "a history of sexual abuse": see R v AJP (2004) 150 A Crim R 575 [at para 19]. Counsel also referred to other matters the absence of which, it was submitted, served to demonstrate that the offences could not reasonably have been assessed as falling into the worst category of offence. He relied, interalia, upon the absence of any threats or coercion of the victim, the absence of the use of force or violence, the fact that no apparent physical discomfort was occasioned to the victim, the fact that no direction was given to the victim not to reveal what had happened, and the absence of a finding that the offences were planned. He also placed emphasis upon the applicant's troubled state of mind at the time when he committed these offences and to the nature of the offences themselves, namely that they involved acts of fellatio and not penile, or for that matter anal, penetration: see R v Davis [1999] NSWCCA 15 [at para 66]; AJP (supra) [at para 23]; MLP v R (2006) 164 A Crim R 93 [at para 45]; R v Woods (2009) 195 A Crim R 173 [at para 51]. 24 In Glover v The Queen (2009) 193 A Crim R 292 this court dealt with a complaint made by an offender, who had been sentenced by the same judge who sentenced the present applicant, for an offence of aggravated sexual intercourse. That case also involved a challenge to his Honour's finding that that offender's conduct placed his offences in the "worst category of case". In the course of upholding the challenge to that finding I said, with the concurrence of the other members of the court: It is trite law that an appellate court should not lightly interfere with a sentencing judge's assessment of where a particular offence lies in the range of objective seriousness. The authorities which support that proposition are conveniently collected in this Court's decision in Boney v The Queen (2008) 187 A Crim R 167 at [105], a case in which this Court nevertheless intervened and substantially reduced sentences for a variety of offences which largely involved instances of sexual assault. In doing so the Court found that the sentencing judge in that case (who by coincidence is the same judge who sentenced the present applicant) had erred in his assessment of the objective gravity of many of the offences in question and in particular had erred in characterising certain of the offences as "offences of the worst kind". Hulme J, who wrote the leading judgment and with whom the other members of the court agreed, reached that conclusion after a "comparison with many offences against these sections with which the courts have to deal" (at [111]). … As this court said in R v Twala (unreported, Court of Criminal Appeal, NSW, No 60187 of 1993, 4 November 1994) at 3, "to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)". That said, I have not overlooked that in Veen v The Queen (No 2) (1988) 164 CLR 465; 33 A Crim R 230, a majority of the High Court after observing that the maximum penalty is intended for the worst category of case, said "[t]hat does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case: ingenuity can always conjure up a case of greater heinousness" (at 478; 239). It is of course always ultimately a matter for a sentencing judge to assess where a particular matter lies on the scale of objective gravity, but in my view a sentencing judge should be loathe to determine that a case falls into the worst category in circumstances in which no submission to that effect has been made by the Crown. The representative of the Crown appearing on sentence in the present case submitted that the offence "should be regarded as more serious than the mid-range offence". (at paras 19, 22-24) 25 Those remarks are apposite to the present case particularly as the submission made on behalf of the Crown at first instance in this case was simply that: there is nothing in the evidence…that would suggest that the objective level of seriousness of the s 66A offences should be found to be below the mid-range. 26 In this court, counsel for the respondent quite properly conceded that "it would be hard to maintain a finding that the offence was as objectively serious as the worst category of offence". 27 Needless to say his Honour did not seek to identify those features of the case which he regarded as being "of very great heinousness". Serious as the offences were, none of them in my view, came even close to warranting his Honour's characterisation of them. Error, in my view, has clearly been established. 28 It is convenient at this stage to address another feature of the case in relation to which his Honour fell into error. It concerns his Honour's determination that the applicant was entitled to a combined discount of 65% for his pleas of guilty and assistance to the authorities. It is apparent from his Honour's remarks that that discount was intended to apply to each of the five counts. 29 The evidence revealed that the applicant had provided several witness statements in which he had nominated another person as having committed child sex tourism and child pornography offences. He had also indicated a preparedness to give evidence in accordance with those statements. The court was informed that although the authorities had determined not to call the applicant as a witness in the proceedings against that person, that offender had nonetheless pleaded guilty. The applicant had also provided information about a large number of other persons, which either confirmed or supplemented intelligence holdings of the police both here and overseas, concerning child pornography offences. His Honour referred to evidence given by an Australian Federal Police officer and accepted that "as a result of information which the offender provided, [police] were able to close down an internet site accessed by people who used it for the purpose of leaving Australia in order to get sexual contact with children. There were apparently something like 10,000 people associated with this website." The Australian Federal Police evaluated the applicant's assistance as being "medium to high" and his Honour, correctly in my view, assessed it as being "significant". Moreover, the court was informed that his assistance was "on-going". 30 His Honour made the following observations concerning the applicant's time in custody: He has been in protective custody every day. He sought treatment from the gaol psychologist, he made application to join the corrective services sex offender's program, he has decided to punish himself by attempting suicide by slashing his wrists with a razor. He also said he was slashed with a razor by an inmate and a cup of urine was thrown on him. He did not complain because "others copped more". He has been attacked by another inmate and his eye socket was split open. The psychologist saw the black eye on him. He has also been elected as a sort of "delegate" for inmates and has been able to negotiate with the general manager and area manager of the prison to improve conditions. He has also involved himself in various units and he has arranged for twenty-four of a hundred inmates to commence studying a course, and he has managed to get the authorities to relocate the tailor's shop in the protection unit to enable inmates to participate in work. He had an ambition to involve fifty per cent of the unit's population in undertaking study or work. 31 In SZ v The Queen (2007) 168 A Crim R 249 this court was presented with a case in which remarkably similar issues arose for consideration. The sentencing judge in that case had allowed a 25% discount for the plea of guilty and a further discount of 50% for assistance to the authorities. Having reviewed the authorities concerning the approach to be taken in cases where there is both a plea of guilty and assistance to the authorities, I reached the following conclusion: I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender. See, for example, R v NP (supra); R v OPA [2004] NSWCCA 464 and R v AMT [2005] NSWCCA 151. However, in light of the authorities to which I have referred and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case. Counsel for the applicant went so far as to suggest that a combined discount of 75%, comprising a discount of 25% for the plea of guilty to which would be added a further 50% for assistance to authorities, may be available in an appropriate case. In view of the matters to which I have referred, I regard such a submission as being simply untenable. Apart from any other consideration, the aggregation of discrete discounts is at odds with the observations of Gleeson CJ in Gallagher (supra) which are recited in the extract from El Hani (supra) which appears at par 31 of this judgment. See also R v NP (supra) at pars 30 and 47. (paras 52-3) 32 Howie J agreed with my judgment and made some additional observations of his own. His Honour said: In my opinion the application of two discrete discounts, as was done in the present case, is liable to lead to error unless the court is conscious of the overall discount being given and considers whether a discount of that degree can result in a sentence that does not infringe s 23(3). An overall discount of more than 60 per cent, however derived, will rarely, if ever, result in a sentence that is not manifestly inadequate. If then special circumstances are found and the non-parole period is reduced to say 50 per cent of the overall sentence, the unreasonableness of the sentence is magnified. It should be borne in mind that a discount in the overall sentence will inevitably result in a discount of the non-parole period. This is why it is important to avoid doubt counting in cases of assistance by finding special circumstances for the very same reasons that the sentence was reduced: R v S (2000) 111 A Crim R 225; R v PG (2001) 122 A Crim R 529. (par 11) 33 Simpson J agreed with my judgment and with the additional observations of Howie J. 34 His Honour made no reference to this line of authority and nor did he seek to explain what features of the case warranted a reduction of the kind which he had permitted. Important as the assistance was in the present case, it was not such as warrant a discount in excess of 50%. Ground 4 35 In respect of counts 2 and 3 his Honour said that: [t]he next two offences, which stand alone, I have decided should receive different sentences slightly of ten years and fifteen years reduced to three years six months and five years and three months. As I will indicate they will be partly concurrent. 36 As best I can understand what that passage is intended to convey, his Honour's starting point for each of these offences, before applying the 65% discount, was a non-parole period of 10 years and an overall term of 15 years imprisonment. I have already indicated that the sentence which his Honour actually imposed in respect of each of these offences, was an overall sentence of 5 years 6 months imprisonment with a non-parole period of 3 years 3 months. It is not easy to reconcile his Honour's expressed intention with the sentences which he actually imposed. 37 As I indicated earlier when considering ground 1, his Honour determined that, but for the pleas of guilty and assistance to the authorities, the applicant would have received the maximum penalty for each of the offences of sexual intercourse. Count 1 related, as I have said, to the complainant sucking the applicant's penis whereas counts 2 and 3 involved the applicant sucking the complainant's penis. His Honour also said that he regarded counts 2 and 3 as "very serious but not as serious perhaps as the foregoing" (which, from the context, was clearly a reference to count 1). By imposing less severe penalties in relation to counts 2 and 3 than in relation to count 1, it can be inferred that his Honour gave effect to that conclusion. It may also be inferred, although his Honour did not say so explicitly, that his Honour ultimately formed the view that these offences did not fall into the worst category of offence. In any event his Honour did not indicate where, upon the scale of objective seriousness, the offences which gave rise to counts 2 and 3 lay. Grounds 5 and 6 38 These grounds were also argued together. It was noted that the non-parole period imposed in respect of count 1 was 75% of the head sentence. It was submitted that his Honour erred in not making a finding of "special circumstances" in respect of that count. Counsel who appeared for the applicant during the sentence hearing contended that such a finding should be made particularly as there was evidence that the applicant required "intensive long term psychological treatment". The sentencing judge had, it was observed, accepted that he had "good prospects of rehabilitation". His Honour also seemed to accept the psychologist's opinion that if the applicant engaged in cognitive behavioural therapy, his chances of not re-offending were "excellent". In those circumstances it was submitted that it could be inferred that the reason his Honour had made no finding upon the issue of "special circumstances", was because he had simply overlooked it. 39 By way of contrast to the way the sentence in respect of count 1 was structured, the non-parole periods which were imposed in respect of each of counts 2 and 3 did represent a departure from the normal statutory proportion of 75%. Each non-parole period was fixed at a point that was a little under 60% of the head sentence. Although his Honour did not indicate why he had done so, counsel for the applicant submitted that it may be inferred that his Honour had made a finding of "special circumstances" because of the need to accumulate the sentences in respect of those counts. Although that may be a reasonable inference, once again the parties and indeed the Court are left in a quandary in endeavouring to determine his Honour's reasoning process, particularly as his Honour made no reference at any stage to the question of "special circumstances". Ground 7 40 As I observed earlier, although the sentencing judge indicated that he had intended to impose an overall sentence of 5 years 3 months and a non-parole period of 3 years 6 months in respect of each of counts 2 and 3, he nevertheless proceeded to impose an overall sentence of 5 years 6 months. It was submitted by counsel that had his Honour given effect to his original intention, then the overall effective sentence would have been one of 8 years and not 8 years 3 months. That, it was submitted, would have produced a ratio between the non-parole period and the overall sentence of 78%. It was accordingly submitted that it should be inferred that that realisation had prompted his Honour to extend the head sentence for each offence by a period of 3 months (and also to reduce the non-parole period by the same period) in order to avoid producing a non-parole period that was greater than the normal statutory ratio. By that mechanism, so it was submitted, the sentencing judge had managed to produce a ratio of 73.5%. Counsel then relied upon a line of authority to support the proposition that it is an error for a sentencing judge to extend the head sentence in order to achieve what is considered to be an appropriate ratio between the non-parole period and the head sentence: Dolman v R [2010] NSWCCA 137 [at paras 15-17]. 41 Since his Honour did not explain the apparent anomaly in his approach, it is impossible to assert with any confidence just what he intended. An equally plausible explanation is that what occurred was attributable to a simple mathematical error. Conclusion 42 It is apparent from what I have said that his Honour's sentencing discretion miscarried in a number of important respects. Although counsel for the applicant did not make reference to it, there is one further matter which, in my view, is of considerable significance. His Honour said that it was his intention to impose "a sentence that is not, in the overall sense, crushing. That sentence will see him spend 6 years from 13 March 2009 in custody with a release 18 months after that". (emphasis added) In other words, his Honour's intention was to impose an effective total sentence of 7½ years imprisonment with a non-parole period of 6 years. However, as I said at the outset of these reasons, the effective total sentence which his Honour actually imposed was 8 years 3 months with an effective non-parole period of 6 years 3 months. I shall return to this matter in due course but I observe at this stage that that state of affairs leads me to conclude that the court should, on that basis alone, intervene and proceed to re-sentence the applicant. 43 In embarking upon that exercise, I bear in mind that each of counts 1 – 3 attracts a maximum penalty of 25 years imprisonment. As I have also said, a standard non-parole period of 15 years is applicable to each of those offences. In approaching that issue, I have had regard to the principles which have been distilled in authorities such as R v Way (2004) 60 NSWLR 168; AJP (supra) [at para 13]; MLP (supra) [at para 33]. Nor have I overlooked the serious objective gravity of each of those offences particularly given that there was a relationship between the applicant and the complainant which the applicant had abused. I referred earlier, in the context of discussing the submissions advanced in support of ground 1, to those factors which bear upon the question of the objective seriousness. As a consequence, I have reached the view that the first three offences each fell considerably below the middle of the range of objective seriousness. Due consideration must also be paid, in re-sentencing, to the offences giving rise to counts 4 and 5 and to the Form 1 matters. Furthermore, in arriving at the appropriate sentences, it is important to observe that the applicant is entitled to a significant discount for his pleas of guilty and assistance to the authorities. In that respect, I have also had regard to the contents of two affidavits which were sworn by the applicant for the purposes of this application. They reveal that the applicant was threatened and abused by fellow inmates whilst he was being held in a minimum security institution. The applicant maintains that later that same evening he was physically assaulted because he had informed upon the person to whom I referred earlier. Although the applicant did not make a formal complaint, he was nonetheless moved to the strict protection section of a medium security gaol. The person upon whom he informed is in another section of that facility and the applicant is understandably fearful of the possible repercussions that may flow. In light of all the evidence to which I have referred that touches upon this issue, I have concluded that the applicant is entitled to a combined discount, in the order of 45%, on account of his pleas of guilty and assistance to the authorities. 44 In addition to those considerations, there are a number of other favourable subjective factors to be weighed in the balance. His prior good character, his age, his remorse, his mental condition at the time of the offences, and the fact that he had, as his Honour found, good prospects of rehabilitation all operate to ameliorate the otherwise appropriate sentence. 45 It is necessary, given the multiplicity of offences for which the applicant stands to be sentenced, to have regard to the principles of totality as enunciated in Pearce v The Queen (1998) 194 CLR 610. It is true that the applicant was afforded considerable leniency by the sentencing judge because of the manner in which the various sentences were structured. That is not necessarily the approach which I would have adopted had I been sentencing at first instance particularly as the applicant was on bail at the time he committed the Commonwealth offence (count 5). His Honour also took a rather benign view of the facts surrounding count 4, in accepting that it had been due to "carelessness" on the applicant's part. That said, I do not intend to completely ignore the approach taken by his Honour. 46 In arriving at the appropriate sentences, I have derived some assistance from a number of authorities to which the court's attention was drawn: see AJP (supra); Woods (supra) and Eedens v R [2009] NSWCCA 254. In my view, the effective total sentence should be reduced so that it gives effect to his Honour's stated intention, namely that the applicant should receive an overall sentence of 7 years 6 months imprisonment. A non-parole period of 6 years, which is what his Honour had in mind, however represents 80% of that overall sentence. In my view, an effective non-parole period of 5 years 6 months would be more appropriate in all the circumstances. It represents, in my view, the minimum period of time which the applicant must spend in custody: R v Simpson (2001) 53 NSWLR 704. A non-parole period of that duration is marginally less than 75% of the head sentence but such an outcome is warranted because of the need to partially accumulate the sentences. For that reason, I would make a finding of "special circumstances". In my view, the outcome to which I have referred can be best achieved by reducing the head sentences imposed in respect of counts 2 and 3 by 3 months (which will give effect to his Honour's expressed intention) and by also reducing the head sentence and the non-parole period in respect of count 1. It will also be necessary to alter the commencement dates of the various sentences. 47 Accordingly, I propose the following orders: 1 Grant leave to appeal and allow the appeal. 2 Quash the sentences imposed in the District Court and substitute the following sentences: (a) in respect of count 2, sentence the applicant to a non-parole period of 3 years 3 months to commence on 13 March 2009 with a balance of term of 2 years imprisonment; (b) in respect of count 3, and taking into account the Form 1 matter, sentence the applicant to a non-parole period of 3 years 3 months to commence on 13 September 2009 with a balance of term of 2 years imprisonment; (c) in respect of count 1, and taking into account the Form 1 matter, sentence the applicant to a non-parole period of 4 years 3 months to commence on 13 June 2010 with a balance of term of 2 years imprisonment which will expire on 12 September 2016; (d) in respect of count 4, sentence the applicant to a fixed term of 12 months imprisonment to commence on 13 June 2012; (e) in respect of count 5, sentence the applicant to a fixed term of 6 months imprisonment to commence on 13 December 2012. 3 The applicant will be eligible for release on parole on 12 September 2014. 48 SCHMIDT J: I agree with Buddin J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2011