Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Egan [2013] NSWCCA 196 Hearing dates: 6 August 2013 Decision date: 23 August 2013 Before: Leeming JA at [1] R A Hulme J at [2] Button J at [103] Decision: Crown appeal allowed. Sentences imposed in the District Court quashed. Assault occasioning actual bodily harm (count 3): sentenced to imprisonment for 10 months with no non-parole period. The sentence is to date from 5 January 2013 and expire on 4 November 2013. Assault occasioning actual bodily harm (count 5A): sentenced to imprisonment for 1 year 9 months with no non-parole period. The sentence is to date from 5 January 2013 and expire on 4 October 2014. Sexual intercourse without consent (count 2): sentenced to imprisonment comprising a non-parole period of 2 years and a balance of the term of the sentence of 8 months. The sentence is to date from 5 September 2013. The non-parole period expires on 4 September 2015 and the total term expires on 4 May 2016. Do act with intent to pervert the course of justice (count 6): sentenced to imprisonment comprising a non-parole period of 1 year and a balance of the term of the sentence of 1 year and 6 months. The sentence is to date from 5 September 2014. The respondent is to be released on parole upon the expiration of the non-parole period on 4 September 2015. The total term of the sentence will expire on 4 March 2017. Catchwords: CRIMINAL LAW - Crown appeal - offences of assault, sexual assault and pervert course of justice - suspended sentence of 22 months imprisonment - sentence manifestly inadequate - relevance of comments preliminary to remarks on sentence - whether judge decided to suspend the sentences before determining their length - principles applicable where sentencing for multiple offences - totality CRIMINAL LAW - Crown appeal - errors in assessing impact of mental condition and objective seriousness of offences - error in assessing discount for utilitarian value of pleas of guilty - pleas entered after date allocated for commencement of trial - whether fact that delay partially explicable by charge negotiation warranted deviation from usual discount for plea of very limited utilitarian value Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Burnard v R [2009] NSWCCA 5; 193 A Crim R 23 Douar v R [2005] NSWCCA 455; 159 A Crim R 154 Ghobrial v R [2012] NSWCCA 221 Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Dib [2003] NSWCCA 117 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Pangallo (1991) 56 A Crim R 441 R v Ryan [2006] NSWCCA 394; 167 A Crim R 241 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v XX [2009] NSWCCA 115; 195 A Crim R 38 R v Zamagias [2002] NSWCCA 17 Ryan v The Queen (1967) 121 CLR 205 Siganto v The Queen (1998) 194 CLR 656 Tabuan v R [2013] NSWCCA 143 Category: Principal judgment Parties: Regina (Applicant) Zenas Luke Egan (Respondent) Representation: Counsel: Ms H Wilson (Crown) Ms B Rigg (Respondent) Solicitors: Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2011/146070 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-01-21 00:00:00 Before: Maiden DCJ File Number(s): 2011/146070 Judgment 1LEEMING JA: I agree with R A Hulme J. 2R A HULME J: The Crown has appealed against sentences imposed upon Zenas Luke Egan ("the respondent") by his Honour Judge Maiden in the District Court on 21 January 2013. 3Some details of the offences, their maximum penalties, standard non-parole period (if applicable), and the sentences imposed are as follows: On 4 May 2011 at Newtown in the home of the applicant and complainant: Sexual intercourse without consent (s 61I of the Crimes Act 1900 (NSW)) - maximum penalty imprisonment for 14 years - standard non-parole period 7 years: suspended sentence of imprisonment for 22 months. Assault occasioning actual bodily harm (x 2) (s 59) - maximum penalty imprisonment for 5 years: suspended sentences of imprisonment for 22 months. Between 19 May 2011 and 21 March 2012 in Queensland and New South Wales after having been released on bail for the above offences: Do act with intent to pervert the course of justice (s 319) - maximum penalty imprisonment for 14 years: suspended sentence of imprisonment for 13 months. Background to the offences 4A prominent feature of the case is the respondent's mental condition at the time of the offences. Before referring to the offences themselves it is appropriate to provide the context. I draw the following from the written submissions by Ms Rigg, counsel for the respondent (the accuracy of which was not contested), and the various medical reports that were in evidence. 5The respondent was aged 28 at the time of the offences and 30 at the time of sentence. He had no previous convictions and was found to be of excellent prior character. He enjoyed a positive upbringing and a good education. 6After leaving school he commenced an apprenticeship as a chef and in 2003, at the age of 21, he joined the Royal Australian Navy. He was married that year but the marriage ended in emotionally difficult circumstances in 2007. His relationship with the complainant began in 2007/2008. They lived together in naval assisted accommodation in Newtown. 7The respondent rose to the rank of Recruit Cook in 2003 and Able Seaman Cook in 2008. He saw active service in Iraq and was deployed on vessels to Samoa, Timor, Indonesia, Hawaii and Vanuatu as well as undertaking work around Australia. His service brought the presentation of three medals and a badge. 8He saw confronting situations during his naval service, including a boy being sexually molested in Samoa and, shortly prior to his return to Australia in April 2011, a person engaged in producing baby coffins in West Timor where there was a high infant mortality rate. He saw freshly dug graves decorated only with baby dummies and bottles because of the extreme poverty in the area. He is said to have become distressed generally about witnessing hardship in regions of poverty. 9Relationship issues with the complainant arose about a month before the offences of 4 May 2011. He was at sea at the time. The complainant was due to begin new employment at Perisher Valley and was going to depart Sydney before his expected return date. He sought leave and arranged to fly home early when his ship docked in Cairns. He arrived back in Sydney on 23 April 2011. 10On 25 April 2011, he took an overdose of paracetamol and was taken to the Emergency Department of the Royal Prince Alfred Hospital. The history recorded was that he had recently returned from naval deployment during which he witnessed confronting events; he was having relationship issues and also had been experiencing sleep deprivation. He felt depressed, but did not want to kill himself. 11On 27 April 2011, he was transferred to the Navy Ward at St Vincent's Hospital. 12Dr Geoff McDonald, a consultant psychiatrist, reviewed the respondent on 28 April 2011. He received a history that included that the overdose was an impulsive act with the aim of relieving distress and producing sleep, with no suicidal intent. There was a two-month history of "moderately depressed mood with partial vegetative features". Dr McDonald considered that the "trigger" was relationship tension concerning his absence from home and his next overseas deployment in September. There was also the contribution of the respondent having missed attending the complainant's sister's wedding while overseas; the complainant's recent retrenchment and subsequent decision to pursue employment at Perisher Valley; an inability to use the gym while at sea; and some physical ill-health (pain in the knee and a painful pilonidal cyst). 13Dr McDonald made a diagnosis of "depressive episode of mild to moderate severity". The respondent was to be discharged from St Vincent's on 28 April to return home and was to see a psychologist regularly. With regard to the complainant, Dr McDonald recorded that the respondent believed that both of them remained committed to the relationship. 14On 3 May 2011, he was reviewed by a clinical psychologist, Ms Marilyn Johnston. He reported that his mood levels were steady and that he felt more relaxed having had some time away from work. He was worried about the future and the uncertainty about his career, although he wanted to re-join his ship. When asked about his relationship with the complainant he said that "things were going well with them, but that she had a lot on her plate and her parents had suggested she see a psychologist". Ms Johnston planned to see the respondent again on 12 May 2011 when cognitive behavioural therapy for mood disorder was to commence. The offences 15There were agreed facts before the sentencing judge from which the following is drawn. It is necessary to refer to all of the detail to enable an appreciation of the serious gravity of the respondent's conduct. 16The agreed facts commenced with reference to the respondent and the complainant having been in a relationship for about three and a half years. About a month before 4 May 2011, the complainant came to the view that the relationship was over. The respondent did not see it the same way. They continued to live together but in separate bedrooms. 17At about 1.20am on Wednesday 4 May 2011, the respondent entered the complainant's bedroom and turned the light on. He shook her and woke her. She reached for her mobile phone but found it was missing. He said, "You won't find it. I smashed it on the road". When she asked him why, he replied, "How many guys have you fucked since we've been together?" He repeated the question, screaming as he pulled back the bed sheets. She told him, "We're not together anymore". Sexual intercourse without consent 18The respondent took hold of the complainant's shorts and underwear and pulled them off. He held her ankles and pulled her down towards him. She was lying on her back and he held her legs in the air on either side of him. She asked him to let her go but he inserted two fingers into her anus which caused her pain. The penetration only lasted a couple of seconds. He said to her, "this is what you want isn't it?" She screamed at him to get off her. She struggled and he removed his fingers and moved to the side of the bed. First assault occasioning actual bodily harm 19The complainant got off the bed and ran upstairs with a view to using the landline telephone. She was also yelling out, "Help me please, it's unit eight, someone help me please". The respondent ran past her and got to the phone dock first, pulling it out from the wall. He then struck her with a closed fist to the head, possibly causing her to lose consciousness. Her next awareness was being back on her bed with the respondent straddling her. He punched her with closed fists to the head a number of times. She screamed, "Please help me, unit eight" whilst trying to fight back. He placed a hand over her mouth and told her to stop screaming. She bit his hand. He responded by hitting her with closed fists at least twice. Second assault occasioning actual bodily harm 20The complainant attempted to stand and run but the respondent took hold of her with his hands around her throat. She struggled and they both fell off the bed. A neighbour, having heard the complainant's screams, knocked on the door. The respondent called out, "Everything's ok, everything's fine, go away". But the complainant called out, "Everything's not fine, kick the door in". At this stage she was on her stomach with the respondent on top of her. 21He placed his hands around her neck and exerted pressure, making it hard for her to breathe. He then placed his right hand on her chin and his left hand behind her left ear and wrenched her head to the left. She heard a "popping" sound. He repeated this manoeuvre with more force and then again in the other direction about three times. The complainant described the pain as being "immense". 22The respondent then placed his right arm around her neck and under her chin, exerting pressure on her neck whilst pulling her head back. She struggled to breathe, her vision became blurry and she lost consciousness. He then released his grip and she began to regain consciousness. He said, "You made me this person". 23At the complainant's request, the respondent handed her a bottle of water and then escorted her to the bathroom. There she noted that her face was battered and swollen and there was blood coming from her nose and mouth. The respondent said, "I can't believe I did this to you" and offered to call the police and ambulance. He then said, "I can't believe that I did this to you, you made me this person. I might as well slit my throat because my life is over". 24The complainant put some clothes on and left the unit, saying she was going to look for the neighbour who had knocked on the door. As she entered the hallway she was met by neighbours who allowed her inside their unit. Police were summoned and spoke with her. They observed that she had significant bruising to her face and arms and bloodied eyes. She complained of having been sexually assaulted. She was taken to hospital. 25Police went to the respondent's unit where they met him at the door. He was arrested and taken to a police station. He agreed to be interviewed. He described confronting the complainant in her bedroom. He was asked about the amount of force he applied to her throat and he said, "Not a major amount ... not enough to choke someone out but enough to be discomfort [sic]". He said that she started "choking" and that he "freaked" and released his grip. 26Upon examination at hospital, it was found that the complainant's mouth was painful to open and there was bruising inside and outside the lip. There were widespread petechiae (I take this to mean spots of bleeding into the skin from broken blood vessels) over the face and neck and numerous bruises and abrasions about the head and neck. There was an area of red bleeding in the white sclera of the left eye and a red haematoma inside the right ear canal. There were also multiple bruises to both arms and on the chest, thorax and legs. Do act with intent to pervert the course of justice 27The complainant and the respondent had shared a laptop computer which belonged to him. The complainant had email accounts that were password protected. She usually accessed those accounts on that laptop and used software on it to remember her login and password details. 28When the respondent was released on 19 May 2011, a condition of bail required that he live in Brisbane. In June or July 2011, the complainant noticed some irregular activity on one of her email accounts. There was an email in her "sent items" box addressed to the respondent which she had not sent. She immediately informed police. 29The respondent's trial was due to be held in the District Court in March 2012. Shortly before the trial date, his counsel, on instructions, forwarded to the Crown a series of emails purportedly from the complainant to the respondent. These emails expressed the complainant's love for the respondent; that she was happy he was in gaol; that she had lied to police; and that she had self-inflicted a particular injury that she had allegedly sustained in the assaults. 30The trial date was vacated so as to allow time for investigation. It was revealed that the respondent had accessed the complainant's email account on his laptop computer and had fabricated the emails. The emails had the potential to significantly compromise the complainant's credibility as a witness in the impending trial. Subsequent assessments of the respondent's mental condition 31Documents from Justice Health were in evidence which detailed more history provided by the respondent and assessments made of his mental condition upon entering into Corrective Services custody after his arrest on 4 May 2011. They include that the recent paracetamol overdose "was more an attempt to kill the pain in his leg/knee" but that he admitted "to having thoughts of depression over a long period of time". Those thoughts included, "'I'd be better off dead' but no plans of any kind were ever made." Another note was that in relation to the overdose it was "to help me sleep". 32The Justice Health notes also record an "impression" of there being an "adjustment disorder with depressed mood". The respondent was receiving antidepressant medication and his dosage was increased. A subsequent "impression" was of "MDE", which I understand to be shorthand for Major Depressive Episode, with a query as to Post Traumatic Stress Disorder. 33After the respondent had pleaded guilty, but before sentencing, he was assessed by Dr Gary Larder, a consultant psychiatrist at the University of Queensland. Dr Larder said in his report of 17 December 2012 that there was "no doubt in my opinion that Mr Egan was assessed and correctly diagnosed with a psychiatric disorder in April and May 2011". He said, "He attempted suicide by overdose of medication which could have potentially fatal consequences in the way of liver failure". I note that the history that he had "attempted suicide" is in conflict with what the respondent is recorded as having said to staff at the Royal Prince Alfred hospital, to Dr McDonald and to Justice Health staff. But I also note that the Crown did not object to the tender of Dr Larder's report, or require him to attend for cross-examination (AB 281). 34Dr Larder "supported" a diagnosis of Adjustment Disorder at the relevant time. He described this as "a severe reactive state of emotional, psychological and behaviour disturbance which arose at that time following Mr Egan's experience of a number of stressors which had accumulated and tested his coping mechanisms over a period of months". He considered the diagnosis as being consistent with that made by Dr McDonald. 35Dr Larder offered an opinion about a causal connection between the respondent's mental condition and his offending behaviour on 4 May 2011. I quote what he said about this when dealing with the first ground of appeal. 36Dr Larder noted that the respondent was on a regime of antidepressant medication and under the care of a consultant psychiatrist. He recommended that such treatment continue. 37A subsequent report by Dr Larder of 8 January 2013 supported the proposition that the respondent had good prospects of rehabilitation and an unlikelihood of re-offending if his current regime of treatment continued. Other aspects of the respondent's subjective case 38An affidavit sworn by the respondent's mother was tendered without objection and it set out a number of aspects of the respondent's history, both before and after 4 May 2011. The prior history has been covered already. As to subsequent events, he returned to live with his family in Brisbane after being released on bail. He obtained employment as a chef in the latter part of 2011. He then took up employment as a steel salesman with an uncle and his mother anticipated that such employment would be available again "once released from prison". 39The respondent met his current partner in November 2011. She came to live with him in the family home. She fell pregnant in about March 2012 and gave birth to their son in December 2012. She originated from El Salvador and had few family connections in Australia. But Ms Egan said her family was prepared to support the respondent's partner and his son until he was "release[d] from prison". 40Ms Egan's affidavit included that after the respondent's arrest he was suspended from the Navy without pay. After an appeal, this was changed to suspension on half pay. But she understood that he would be discharged after being sentenced in January 2013. 41Finally, the affidavit referred to difficulties for the respondent being imprisoned in this State, with his family having limited opportunities to visit him for geographical and financial reasons. 42The respondent gave evidence in the proceedings on sentence in response to the judge expressing an interest in whether he was remorseful. He said that he was. He was asked about the fabricated emails. He said that at the time he created them his understanding was that "if all this went away that I'd get back in the Navy and continue serving my country". He could not recall the reason why he created the emails but said he was not intending to hurt anyone (AB 294-5). In cross-examination he agreed that he thought that by providing them to his barrister it would help his defence at trial. He did not realise that the police could do checks on computer systems to determine who had actually sent them (AB 298-9). Proceedings leading up to sentencing 43The respondent appeared before his Honour Judge Bennett for what was to be his trial on its second listing on Monday 15 October 2012. The indictment at that time alleged offences of aggravated sexual assault; alternatively sexual assault; assault occasioning actual bodily harm; attempt to strangle with intent to murder; alternatively attempt to strangle with intent to sexually assault; and do an act with intent to pervert the course of justice. Submissions were made about a number of evidentiary issues requiring resolution before the trial commenced. 44Ultimately the matter came back before Bennett DCJ on Thursday 18 October. In the meantime the parties had negotiated and reached agreement that the respondent would plead guilty to the charges mentioned at the outset of this judgment. The Crown accepted such pleas in full satisfaction of the indictment and the proceedings were adjourned for sentence. Bail was continued, but counsel indicated, "He knows he's going to gaol" (AB 272). 45The sentence proceedings came before his Honour Judge Maiden on Tuesday 15 January 2013 when evidence and submissions were received before the judge reserved his decision until Monday 21 January 2013. Grounds of appeal 46The Crown relied upon seven grounds of appeal, one of which was abandoned at the hearing: 1.His Honour erred in holding that the Respondent had no control of himself by way of mental illness in the happening of Counts 1, 3 and 5A [the 4 May 2011 offences]. 2.(Abandoned) 3.His Honour erred in extending a 25 per cent discount to the Respondent in respect of Counts 1, 2 and 3 [sic - the 4 May 2011 offences] 4.His Honour erred in his application of s 12 of the Crimes (Sentencing Procedure) Act 1999. 5.His Honour erred in his assessment of the objective seriousness of the offences. 6.His Honour erred in failing to accumulate any of the sentences. 7.The sentences are individually, and as aggregated, manifestly inadequate. Ground 1: No control because of a mental illness 47The judge referred three times in his sentencing remarks to his finding that the respondent had no control of himself at the time of the 4 May 2011 offences. He said: I do find that at this time [the time of the first assault occasioning actual bodily harm] the offender had lost control of his emotions, and of his actions, in commencing and continuing the beating upon the complainant as he did. (Emphasis added) (AB 15-16) In respect of the second assault occasioning matters, the choking, I make the similar finding from the last matter, that is that the offender had lost control, and was unable to stop his actions until what appears to be his anger had subsided. (Emphasis added) (AB 16) On the night of this event [4 May 2011] ... and during the course of the assault it becomes clear to this Court on the facts that he was acting in a way that he had no control of by way of mental illness. (Emphasis added) (AB 21) 48The Crown argued that such findings were erroneous. The evidence of Drs McDonald and Larder indicated that the respondent suffered from an adjustment disorder. The respondent would not have had an "inability" to control his aggression, only a reduced capacity to do so. It was submitted for the Crown in oral argument that the judge's findings were tantamount to a finding of automatism. The Crown submitted that the correct approach would have been to acknowledge a reduced need for general deterrence and find special circumstances. 49The respondent argued that the judge's statements were simply findings that mental illness significantly contributed to the offending behaviour. Any differences in expression between that finding and what was actually said were submitted to be negligible. A discussion by the judge of Muldrock v The Queen [2011] HCA 39; 244 CLR 120 was said to be indicative of "shorthand" reference to the appropriate reduction in the importance of general deterrence, punishment and denunciation. The offending behaviour was out of character and unlikely to be repeated. It was also submitted that the respondent's psychiatric disorder would increase the burden of full-time custody. 50Dr Larder's opinion, which the judge fully accepted, was that: The behaviour in which the events of 03 and 04 May 2011 led to the matters before The Court, is assessed as "a loss of control over his anger and aggressive impulses" which occurred as a reaction to the discovery of the breach of trust which had occurred "behind his back" in the context of the depressive illness diagnosed [one which reduced his capacity to control his aggressive impulses]. 51Dr Larder's reference to a "loss of control" is qualified by the later reference to the respondent having a "reduced capacity to control his aggressive impulses". The sentencing judge failed to recognise the qualification. It is clear that the respondent acted in a way that was out of character. His mental condition provided some explanation for this. But finding that he had "lost control" and had "no control" overstated the situation. By his pleas of guilty, the respondent acknowledged that his actions were voluntary; that is they were conscious and willed acts: Ryan v The Queen (1967) 121 CLR 205. In relation to the sexual assault, he acknowledged that he knew at the time that what he did was without the complainant's consent. 52The manner in which the judge expressed his findings cannot be regarded as unintended or infelicitous. This Court readily acknowledges that judges of the District Court "are faced on a daily basis with an almost unending onslaught of serious and complex sentencing exercises": Tabuan v R [2013] NSWCCA 143 at [28] per Harrison J. And, as Spigelman CJ observed in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [48], the conditions under which District Court judges give reasons for sentence "are not such as to permit [them] to be parsed and analysed". But the Chief Justice was talking about sentencing remarks delivered ex tempore. In the present case, the judge reserved so as to reflect upon the matter and the impugned finding was repeated. 53In my view, the error asserted in Ground 1 has been established. Ground 2: Error in allowing 25 per cent discount for pleas of guilty to 4 May 2011 offences 54The judge allowed a 25 per cent discount for each of the 4 May 2011 offences on the basis that there was: no dispute that the offender had been prepared, and was prepared, to plead guilty to the lesser charges, that is the charges which he has now pleaded, at the earliest time based upon what were the admissions given to police on the morning of the offence. (AB 20) 55The Crown, relying upon R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32] and R v Dib [2003] NSWCCA 117 at [5], argued on the appeal that 25 per cent was excessive given that the pleas of guilty were entered three days after the second trial date and that they were a result of charge negotiation. The Crown submitted that an appropriate discount for these three offences was 10 per cent. 56Rather than there being "no dispute" as the judge had said, the Crown Prosecutor had submitted that where there had been no offer to plead to any offence of violence or offence of a sexual nature until October 2012, the discount should not be as high as 25 per cent (AB 305). Counsel for the respondent had submitted to the judge that a discount of 12.5 per cent was appropriate for the sexual assault offence and 25 per cent for the other offences (AB 104; 108; 112; 114). 57The respondent submitted that the circumstances that led to the late pleas were exceptional, especially in relation to the two assault offences, and justified a high discount despite the lack of utilitarian benefit. There had been an earlier offer to plead guilty to the first assault offence which the Crown had not accepted because it wished to persist with the prosecution of more serious charges. 58The respondent conceded that an appropriate discount for the sexual assault was not more than 10 per cent. But it was also submitted that the judge had not allowed as a further mitigating factor the saving of the complainant having to give evidence, and that this, in addition to the utilitarian value of the plea, warranted about the same level of mitigation of the sentence as the judge had assessed. For this reason, the error identified by the Crown was, in a practical sense, immaterial. The respondent placed reliance on R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, particularly at [119]-[121]. 59It is difficult to understand how the judge could have allowed a 25 per cent reduction of the sentence for the sexual assault offence, particularly when it was clearly conceded by the respondent's counsel that a discount of half that magnitude was appropriate. Further, the plea was entered after the date of the second listing for trial. The respondent's concession in this Court that 10 per cent was appropriate should be accepted. 60The countervailing mitigating factor argued for the respondent concerning the saving of the complainant having to give evidence does not neutralise the impact of the judge's error. Saving witnesses from having to give evidence is something that is relevant to remorse: Siganto v The Queen (1998) 194 CLR 656 at [23]; R v Thomson; R v Houlton at [119]-[121]; R v Borkowski at [32]. The respondent received the benefit of a finding that he was remorseful. And in any event, the complainant faced the prospect of having to give evidence in March 2012 and again in October 2012 and was not relieved of that prospect until three days after the second trial date. 61It is true that the respondent made some admissions to police following arrest. It is also accepted that there was an offer to plead to one of the assault offences prior to the first trial listing, although it would seem that this was on a factual basis that the respondent had slapped the complainant (AB 245; 308). The fact remains, however, that no pleas were entered until 18 October 2012. The utilitarian benefit to the criminal justice system was limited. The fact that the pleas followed charge negotiation did not change that: Borkowski at [32] at (9). There should not have been an allowance of any more than 10 per cent. 62It follows that I would uphold ground 2. Ground 5: Error in assessment of objective seriousness 63The judge found in relation to the sexual assault: The complainant was not kept in hospital and after the forensic examination was discharged with her parents to go to their home. In respect to the sexual offence as I have indicated those facts in my mind puts it in the low category of sexual assault. ... In respect of the first matter, I have indicated that in my mind this is at the lower end of the range of seriousness. (AB 26; 28) 64He later said: In respect of the two assault occasions, the second matter is at the higher end of the range. (AB 28) 65And finally: The last matter, which is the perversion of justice, I should say, in my mind, is at the low end of the range, although the submissions of counsel were that it was a matter of great seriousness. (AB 29) 66The Crown submitted that the judge's erroneous characterisation of the respondent's mental illness (see Ground 1) caused him to fail to appreciate the objective seriousness of the 4 May 2011 offences. The Crown also argued that the characterisation of the s 319 offence as "at the low end of the range" was incorrect. The commission of that offence struck at the heart of the criminal justice system, requiring a strongly deterrent sentence: R v Pangallo (1991) 56 A Crim R 441 at 443. 67The respondent argued that the judge's findings on objective seriousness should be viewed in the context of the findings of fact that accompanied them. In particular, the respondent drew attention to the preliminary remark that: When one looks at the assault matters one forms the conclusion that these were serious matters, and in terms of these matters the facts should be closely looked at in terms of the gravity of the three assault matters. (AB 15) 68It was submitted that the judge did not draw a causal connection between mental illness and the offending to reduce objective seriousness, but rather took the illness into account in considering the subjective circumstances. 69The respondent conceded that "[d]isquiet as to the finding regarding objective seriousness...may arise more readily in connection with ground 6 than the others", but submitted that the facts supported a finding of low seriousness, including the lack of a clear plan and the amateurish nature of the offending, and that in any event that this Court should be reluctant to intervene in the assessment: Mulato v R [2006] NSWCCA 282. 70It is possible in relation to the 4 May 2011 offences that the judge's erroneous exaggeration of the significance of the respondent's mental condition infected his assessment of their objective seriousness. But it is also possible that he adopted the approach suggested in this Court by the respondent's counsel. The reasoning is not sufficiently clear to determine this issue. Whilst minds might differ about the assessment, I do not believe that it can be said that the findings were not ones that were open to be made. 71The situation is different in relation to the s 319 offence. The finding of "at the low end of the range" was made in the face of the Crown submitting that it was "well above mid range" and the respondent's counsel submitting that it was "middle to high range". 72The offence involved the multiple acts of the respondent creating the emails on nine different days in June 2011, then providing them to his barrister and instructing him to forward them to the Director of Public Prosecutions. They were clearly designed to be damaging to the credibility of the complainant. 73The respondent said in his evidence that he was unaware that it would be possible for the police to investigate the integrity of the emails and determine their provenance. The actual impact of the offence was to have the first trial listing vacated and for a police investigation to be carried out. The respondent claimed in his evidence that he could not recall the reason why he created the emails but said that he was not intending to hurt anyone. But he also said that, at the time, his understanding was that "if all this went away that I'd get back in the Navy and continue serving my country" (AB 294-5). He said in cross-examination that he thought that by providing them to his barrister it would help his defence at trial (AB 298). 74The actions of the respondent were intended to pervert the course of justice in respect of his trial for serious criminal offences. He was, in effect, seeking to bring about a miscarriage of justice for his own benefit. His actions might have been inept, and ultimately unsuccessful, but it is not the case that they had no actual impact on the course of justice and their potential impact was quite significant. In my view it was not open to regard the offence as "at the low end of the range". 75I would uphold this ground but only in respect of the s 319 offence. Ground 4: Error in imposing suspended sentences Ground 6: Error in failing to accumulate sentences Ground 7: Manifest inadequacy 76These grounds are related and so it is appropriate to deal with them together. 77I do not propose to review the submissions of counsel in relation to the individual grounds. Suffice to say that the Crown contended for error in relation to each while Ms Rigg, valiantly it must be said, sought to support the correctness of the judge's approach, and the availability to him of imposing the sentences, despite there being some "unfortunate" aspects of the sentencing remarks. Some principles relating to suspended sentences of imprisonment 78Before looking at how the judge approached these aspects of the sentencing exercise it is worth recalling some principles of sentencing in relation to suspended sentences that are well settled. The following is by no means exhaustive but they are principles relevant to the case at hand. 79There are three matters to be determined before a sentence of imprisonment can be suspended: first, whether no penalty other than imprisonment is appropriate (s 5(1) of the Crimes (Sentencing Procedure) Act) 1999 (NSW); secondly, if the answer to the first question is affirmative, the length of the sentence; thirdly, having regard to the length of the sentence, whether the sentence can, and should, be suspended. See, for example, Douar v R [2005] NSWCCA 455; 159 A Crim R 154, per Johnson J at [69]-[72]. (A sentence of imprisonment can only be suspended if its length is not more than 2 years: s 12(1) of the Crimes (Sentencing Procedure) Act.) 80An important issue in the decision to order suspension of the execution of a sentence of imprisonment is whether it would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment: R v Zamagias [2002] NSWCCA 17 per Howie J at [28]. 81It is erroneous to reduce the length of a sentence solely for the purpose of enabling its execution to be suspended: R v Ryan [2006] NSWCCA 394; 167 A Crim R 241 per Barr and Latham JJ at [2], [4]. That is a corollary of the proposition that it is impermissible to determine that the sentence should be suspended before determining its length: Burnard v R [2009] NSWCCA 5; 193 A Crim R 23 at [114]-[116]. 82Part 4 of the Crimes (Sentencing Procedure) Act does not apply when a sentence of imprisonment is suspended: s 12(3). Part 4 includes s 47, which provides for the commencement of sentences and a power to order that a sentence be served consecutively, or partly concurrently and partly consecutively, with some other sentence of imprisonment. It follows that there is no power to back-date or post-date a sentence of imprisonment that is suspended and, where there are multiple sentences to be imposed, there is no power to order any degree of accumulation. 83It follows that where a court is sentencing for multiple offences, it is necessary to have regard to what the overall term of the sentence should be before considering whether an alternative to full-time imprisonment is appropriate: Burnard v R at [111]. The sentencing judge's approach 84Remarks made by a judge prior to the delivery of judgment on sentence are seldom of use in identifying appellable error. It is accepted that in the exchanges with counsel in the course of submissions a judge will often express preliminary or tentative views that might not ultimately reflect the judge's concluded view: see, for example, the cases cited in Ghobrial v R [2012] NSWCCA 221 at [56]. 85But the present case was rather extraordinary. The judge received all of the documentary material, including written submissions by counsel for the respondent, and retired to read it before the proceedings continued. The written submissions for the respondent included a concession that a full-time custodial sentence should be imposed, and that after a suggested (erroneously generous) reduction by 25 per cent for the 4 May 2011 offences, there should be an overall term of imprisonment of 3 years and 9 months. 86After having read the material, and before hearing much else, the judge inquired whether it was worth having the respondent assessed for an intensive corrections order (ICO). A ICO is an alternative to full-time imprisonment and only available if it has been determined that the total sentence should be not more than 2 years: s 7 of the Crimes (Sentencing Procedure) Act. Counsel for the respondent answered, "No your Honour". The Crown Prosecutor answered likewise (AB 286). 87Later, when the Crown Prosecutor told the judge that an ICO was unavailable because a prescribed sexual assault offence was involved (s 66), the judge raised the possibility of deferring sentence pursuant to s 11 of the Crimes (Sentencing Procedure) Act or suspending the execution of sentences (AB 290; 292). This was all at the judge's initiative. No-one was suggesting it and it was only at the end of the proceedings that counsel for the respondent relented and embraced the judge's suggested approach (AB 309). 88Relevant to the present three grounds of appeal, at a late stage of his sentencing remarks he said: The difficulty that this Court faces is this, that in terms of having an intensive corrections order, because of the sexual nature of the first matter to which he has pleaded, that particular option is not available. In respect of home detention, because he is living in Queensland and will continue to do so hopefully, that option is not available. Which leaves the Court considering [a] full time custodial sentence or dealing with the matter by way of suspended sentence. Clearly this matter calls for a gaol sentence. The question is whether the matter should be dealt with pursuant to s 12 of the Crimes (Sentencing Procedure) Act. I am of the view that it should, and although, despite my urgings, the Crown has not acceded to that view, I propose to deal with this matter as I indicated pursuant to s 12. (AB 29) 89The judge had not given any inkling up until this point that he had determined what the length of the sentences, and the overall sentence, should be. I can only interpret his Honour's remarks as indicating that he wanted to impose something other than full-time imprisonment, and was searching to find a way to achieve that end. 90After the remarks quoted above, the judge referred to some aspects of the s 319 offence and then continued: In that matter, I propose, bearing in mind his plea of guilty, for which I allowed twenty-five per cent, to impose a sentence of thirteen and a half months. That sentence, because it is s 12, must start from today, but I discount from that time a period of fourteen days, being the period of time that he served in custody before being released to bail on 19 May 2011. In respect of [the] three other matters, I am of the view that the sentences of imprisonment should be imposed but they should be suspended pursuant to s 12. (AB 29-30) 91Having determined that the sentence for each offence should be suspended, necessarily involving that there be no accumulation, his Honour immediately, and to my mind curiously, proceeded to say: The Court needs to consider whether those sentences should be imposed concurrently or aggregated in some way. Having considered the matter I propose that they be served effectively together, and that each of them will be for a period of twenty-two months to date from today. In doing so, there is some mathematical inconsistency in my reasons, taking into account the twenty-five per cent discount. However, looking at the totality of the matters, I believe it is appropriate that those three assault matters be dealt with, as I have indicated, together and that also the matter relating to the perversion of justice also date from today. I do this in circumstances where I have no alternative but to commence the use of s 12 from today, and it only applies to matters of sentence of two years or less, and I do so. (AB 30) 92This sentencing exercise miscarried. The judge decided to suspend the sentences before determining their length. There was a failure to do what was obvious in the circumstances, to impose partially accumulated sentences. And, in any event, the individual sentences, and the total effective sentence, were manifestly inadequate. A total effective 22-month suspended sentence utterly failed to bear any relationship to the objective seriousness of the offences and the various purposes of sentencing. Re-sentencing 93It was submitted by Ms Rigg for the respondent that this Court should exercise its discretion not to intervene on the basis that doing so would disrupt the progress that he had made towards rehabilitation: Green v R; Quinn v R [2011] HCA 49; 244 CLR 462. 94An affidavit by the respondent confirms the progress he has made in terms of the assistance he has received in respect of his mental condition. Further, he has employment; his family life is settled; and there would be significant, although not exceptional, financial and family hardship if he is sentenced to imprisonment. 95This case demonstrates the unfortunate consequences that flow from a judge being unduly merciful in imposing a sentence that is substantially less than that which the law demands and that the judge's duty requires be imposed. Unpalatable as it is, it is the duty of this Court to rectify the significant errors of the primary judge by re-sentencing. 96The respondent should have the full benefit of the favourable findings made by the judge as to his prior good character, remorse, good prospects of rehabilitation and unlikelihood of re-offending. There should also be a finding of special circumstances, which the Crown conceded, to justify a non-parole period of the overall term that is less than the usual proportion (s 44 Crimes (Sentencing Procedure) Act). An extended period of parole supervision will further the respondent's rehabilitation which is likely to require additional focus after he has served a period in custody. 97The sentences for the 4 May 2011 offences will be less than they otherwise should be on account of the reduced need to factor in general deterrence in the assessment because of the respondent's mental condition at the time. That consideration does not arise in relation to the s 319 offence; it was committed between May 2011 and March 2012 when the severity of the mental condition had subsided. 98The respondent's affidavit indicates the level of supervision by the Probation and Parole authorities in Queensland to which he has been subject since the imposition of sentence and there is no question about his compliance and co-operation. He should be given credit for the time that he has been subject to the s 12 good behaviour bond since 21 January 2013. The respondent should also receive credit for the 16 days he spent in custody between his initial arrest and being released on bail. The sentence will accordingly date from 5 January 2013. 99The sentences should be partially accumulated to reflect the different degrees and types of criminality, although the sentences for the two assault offences should be concurrent amongst themselves. The intention is to impose an overall sentence that appropriately reflects the totality of criminality: the relevant principles were set out by Hall J in R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52]. 100It is permissible to decline to set a non-parole period where no standard non-parole period is prescribed: s 45 Crimes (Sentencing Procedure) Act. I propose to adopt that approach where there would be no utility in setting a non-parole period. 101The sentence for the s 319 offence should be reduced by 25 per cent on account of the utilitarian benefit to the criminal justice system for a plea of guilty entered at an early opportunity. The pleas of guilty for the 4 May 2011 offences were late and had limited utilitarian benefit; the reduction should be 10 per cent. To achieve a practical result there will be some rounding but to the respondent's benefit. Orders 102I propose the following orders. They will have the effect that the respondent will be sentenced to an overall term of imprisonment of 4 years and 2 months with a minimum custodial component of 2 years 8 months. Crown appeal allowed. Sentences imposed in the District Court quashed. Assault occasioning actual bodily harm (count 3): sentenced to imprisonment for 10 months with no non-parole period. The sentence is to date from 5 January 2013 and expire on 4 November 2013. Assault occasioning actual bodily harm (count 5A): sentenced to imprisonment for 1 year 9 months with no non-parole period. The sentence is to date from 5 January 2013 and expire on 4 October 2014. Sexual intercourse without consent (count 2): sentenced to imprisonment comprising a non-parole period of 2 years and a balance of the term of the sentence of 8 months. The sentence is to date from 5 September 2013. The non-parole period expires on 4 September 2015 and the total term expires on 4 May 2016. Do act with intent to pervert the course of justice (count 6): sentenced to imprisonment comprising a non-parole period of 1 year and a balance of the term of the sentence of 1 year and 6 months. The sentence is to date from 5 September 2014. The respondent is to be released on parole upon the expiration of the non-parole period on 4 September 2015. The total term of the sentence will expire on 4 March 2017. 103BUTTON J: I agree with R A Hulme 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: 23 August 2013