Local Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v KPB [2013] NSWLC 12 Hearing dates: 1/7/2013, 19/8/2013 Decision date: 19 August 2013 Jurisdiction: Criminal Before: Magistrate Dare SC Decision: See [58]-[62] Catchwords: CRIMINAL LAW - indecent assaults upon 13 year old girl SENTENCING - "grooming" behaviour by offender - breach of trust - relevance of good character where "of assistance" to the offending - custodial penalties - partial cumulation - likelihood of re-offending SENTENCING - Victim Impact Statement - no need for proof of harm - "substantial harm" established Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: Aguirre v R [2010] NSWCCA 115 BT v R [2010] NSWCCA 267 Cahyadi v R (2007) 168 A Crim R 41 Corby v R [2010] NSWCCA 146 DBW v R [2007] NSWCCA 236 Enrique v R [2012] NSWCCA 60 GAT v R [2007] NSWCCA 208 Houssenloge v R [2010] NSWCCA 9 Kenny v R [2010] NSWCCA 6 Mendes v R [2012] NSWCCA 103 Nguyen v R [2007] NSWCCA 14 Porter v R [2008] NSWCCA 145 R v AEL [2005] NSWCCA 148 R v Allpass (1993) 72 A Crim R 561 R v Blundell [2008] NSWCCA 92 R v Brady (Unrep, NSWCCA, 3/3/1994) R v Dagwell [2006] NSWCCA 98 R v Josefski [2010] NSWCCA 41 R v King (2004) 150 A Crim R 409 R v Ma (2004) 145 A Crim R 434 R v McClymont (Unrep, NSWCCA, 17/12/1992) R v Merrin [2007] NSWCCA 255 R v MMK [2006] NSWCCA 272 R v Muldoon (Unrep, NSWCCA, 13/12/1990) R v PGM (2008) 187 A Crim R 152 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 R v Wheeler [2000] NSWCCA 34 R v Woods [2009] NSWCCA 55 R v Zamagias [2002] NSWCCA 17 Rios v R [2012] NSWCCA 8 Ryan v The Queen (2001) 206 CLR 267 Siganto v The Queen (1998) 194 CLR 656 Vaovasa v R [2007] NSWCCA 253 Category: Sentence Parties: Director of Public Prosecutions (NSW) KPB (the Offender) Representation: Mr C Haezlewood for the Offender Mrs V Morgan for the DPP Ms K Holt, Walsh & Blair, Solicitors for the Offender File Number(s): 2010/315903 Judgment Remarks on Sentence 1I make a non-publication order prohibiting the publication or other disclosure of information tending to reveal the identity of, or otherwise concerning, any party to, or witness in, proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court. The order is necessary to avoid causing undue distress or embarrassment to a party to, or witness in, criminal proceedings involving an offence of a sexual nature (including an act of indecency): see sections 7 and 8 of the Court Suppression and Non-publication Orders Act 2010. The order is to apply in the State of New South Wales until further order. To avoid doubt, the order also applies to the Offender because, in the circumstances of this case, to identify him would be to identify the Complainant and her family. I will refer to the Complainant in these Remarks on Sentence as AB. [The Offender] will be referred to as KPB or "the Offender." 2The Offender stands for sentence having entered pleas of guilty to the following charges - "(For that he) between 1st June 2009 and 31st July 2009 at Ariah Park in the State of New South Wales, did assault [AB], a person then under the age of 16 years, to wit, 13 years, and at the time of such assault did commit an act of indecency upon her." Section 61M(2) Crimes Act 1900. "(For that he) between 1st August 2009 and 30th September 2009 at Ariah Park in the State of New South Wales, did assault [AB] a person then under the age of 16 years, to wit, 13 years, and at the time of such assault did commit an act of indecency upon her." Section 61M(2) Crimes Act 1900. "(For that he) between 1st October 2009 and 21st November 2009 at Ariah Park in the State of New South Wales, did assault [AB], a person then under the age of 16 years, to wit, 13 years, and at the time of such assault did commit an act of indecency upon her." Section 61M(2) Crimes Act 1900. "(For that he) between 1st September 2009 and 31st October 2009 at Ariah Park in the State of New South Wales, did assault [AB], a person then under the age of 16 years, to wit, 13 years, and at the time of such assault did commit an act of indecency upon her." Section 61M(2) Crimes Act 1900. "(For that he) between 1st June 2010 and 30th June 2010 at Ariah Park in the State of New South Wales, did knowingly contravene a restriction specified in an Apprehended Violence Order." Section 14(1) Crimes (Domestic and Personal Violence) Act 2007. 3An offence contrary to section 61M(2) of the Crimes Act 1900 carries upon conviction on indictment a penalty of imprisonment for 10 years and has a standard non-parole period of 8 years. The Local Court is limited to imposing a maximum penalty of 2 years imprisonment but can cumulate up to 5 years. Despite the jurisdictional limitation it is well settled law since R v Doan (2000) 50 NSWLR 115 that a Court, in assessing the objective seriousness of an offence, is to have regard to the maximum legislative penalty not the jurisdictional limit. An offence contrary to section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 carries a penalty of imprisonment for 2 years or a fine of 50 penalty units, or both. 4A Statement of Agreed Facts has been tendered to the Court and is part of the Court record so there is no need to rehearse its content at length. The Court has also received into evidence on sentence a statement from the Complainant's mother relevant to the CADVO charge (Seq. 5); a Pre-Sentence Report from Mrs Luff of the Young District Office dated 29 June 2011; a Pre-Sentence Consultation with the Offender by Anne Young, Senior Specialist Psychologist, Community Offender Services, dated 29 June 2011; an updated Pre-Sentence Report from Mrs Luff dated 16 August 2013 and a testimonial for the Offender by Mr Raymond Catlin, dated 31 July 2013. General Background. 5The Offender is aged 56 years. The Complainant AB is currently 15 years of age but was aged 13 years at the time of the offending. The Offender worked for the Complainant's parents as a farm hand for about 9 years. He was often invited to meals at the Complainant's house. The Agreed Facts says he was in a position of trust so far as the Complainant's family was concerned. 6Sometime during the early part of 2009, the Complainant was upset over something and talked to the Offender about it. During this conversation, the Offender started to hug her. This was the first time there had been any physical contact between them. After that initial hug, the Offender began to hug the Complainant regularly. The Complainant says he would often hug her before he left to go home for the day. These hugs would take place in locations that were not visible to the parents, for example, behind a truck. 7Sometime later, the Offender began sending notes to the Complainant. These notes are asserted to be of a romantic nature. He left the notes in the door of his car from where the Complainant would collect them. At the same time, she would leave a note that she had written to him. In September 2009 the Complainant's mother found one of the notes written by the Offender in the pocket of her school uniform. At that time the mother did not know that the Offender had written it. Among other things, the note said, "Hope I did not upset you on Thursday. Did I go too far when I put my hand down your pants. If so I am very sorry." The note was signed, "Your best mate, love you xx". When confronted with the note the Complainant lied and told her mother that the note belonged to a school friend. The mother kept the note. 8During the second week of November 2009 the Complainant went on a school excursion to Sydney. She had left her school backpack on the kitchen floor and her mother wanted to empty and wash it. In a small Velcro pocket on the side of the bag the mother found approximately 16 notes written by the Offender to the Complainant. The notes were asserted to be romantic in nature and the mother realised from their content that they were written by the Offender. Sequence 1. 9About June 2009 the Offender and the Complainant were alone together putting a bale of hay out at the quarry. The quarry is some distance from the house. The Offender was sitting on the seat of the tractor and the Complainant was seated beside him. The Offender stopped the tractor and began kissing the Complainant on the mouth. While he was kissing her he lifted her over so that she was facing him on the seat. He then placed his hands on the cheeks of her buttocks and moved them around on the outside of her clothing. Sequence 2. 10Sometime between the end of August and early September 2009 the Offender and the Complainant were in the shearing shed. During a conversation the Offender pulled her close to him and started kissing her. At the same time he put his hand on her buttocks underneath her underwear. The Complainant says that she pulled away from him and he let her go. Sequence 3. 11Some time between September and October 2009 the Complainant and the Offender were in a shed. He was fixing a truck tyre and she was helping him. He attempted to bend her over the bonnet of his car but she managed to move away. A short time later he asked her to bring him something. When she did, he pulled her down onto the chair on which he was sitting so that she was sitting on his lap facing sideways. He then began to kiss her chest area and put his hands down the front of her pants. He commenced rubbing her on her genital area underneath her underwear. During this incident, the Complainant said she noticed he had an erection as she could feel it against her thigh. Sequence 4. 12Sometime either in September or October 2009 the Offender and Complainant were alone together near the shearing shed on the property. They were putting things into a bucket on the tractor that the Complainant's father then took to the tip. The Offender began to hug her and started grabbing her breasts. The Complainant said this "hurt like hell." 13Following discovery of the notes written by the Offender, arrangements were made to speak to the Complainant when she returned from the school excursion. She initially denied that there had been any inappropriate physical contact between her and the Offender and said that the "touching" referred to in the letters did not happen. She later disclosed the offences. 14The Offender was arrested at his home at Ariah Park on 17 September 2010. As was his right, he declined to be interviewed and was charged with the present matters. Sequence 5. 15Following the discovery of the handwritten notes previously referred to, an Apprehended Personal Violence Order was granted at Temora Local Court naming AB as the Protected Person and the Offender as Defendant. The order was in terms of 1 (a), (b), (c), 3, 7 and 9. AB was doing work experience a local business in Ariah Park. The Offender breached orders 3 and 7 by going to her place of work. He waited for AB to finish serving another customer and then asked her to cash a cheque for him. Crown Submissions 16I was referred to relevant authorities and the provisions of section 21A of the Crimes (Sentencing Procedure) Act 1999. The Crown's position was made abundantly clear from the outset - the community regards sexual offences against children with abhorrence. Children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life, caused by such conduct. It was submitted that the Court should pay regard to the age difference of the Offender and AB and the breach of trust involved. The submission said that this was the most prominent feature of the offending - the trust placed in him was betrayed in the most profound way and in a manner that amounted to every parent's worst nightmare. He was able to access the victim for the purposes of grooming and sexual interference. He was very easily able to engineer situations to be alone with the victim in order to perpetrate the offences upon her. Moreover, he was able to do so without attracting the suspicion of her parents in a way that someone outside the family would. 17The Crown submits that the Court must look at the nature of the touching involved. It is a matter to which the court must have regard in assessing the objective seriousness of the offences. The touching was very sexual in its nature and increasingly intrusive. In addition, rather than being a fleeting or momentary touching, each offence was of some duration. The touching consisted of behaviours such as touching the victim's breasts, kissing her on the mouth, kissing her chest area, placing his hands down her pants and rubbing her on the genital area. The touching of the genital area of the victim and the occasion on which the accused had his penis against the thigh of the victim are also significant as instances of 'genital connection' to which the court must have regard. Defence Submissions 18The Defence submits the Court should keep in mind the purposes of sentencing as set out in sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. I am asked to apply a full discount of 25% in accordance with the principles to be derived from R v Thomson; R v Houlton (2000) 49 NSWLR 383. In this regard the Court file notes that pleas of not guilty were entered to all charges (involving both girls) and brief service orders were made. True it is that pleas of guilty were subsequently entered to the charges involving the present Complainant and it has not been necessary to assemble witnesses or go into evidence. Counsel points out that the present sentencing hearing was delayed due to other matters. This obviously refers to the proceedings in the District Court involving AB's younger sister that, I am advised, are to be finalised next month. 19The submissions acknowledge that while Courts take a serious view of indecent assaults upon children, the present charges cannot be said to "go anywhere near" what might be termed "the worst" within the category. While it is always possible to imagine a worst case scenario, I have made my own assessment of where the offences fall on the notional scale of offending. 20Subjectively, it is submitted that the Offender has no prior convictions or criminal record and despite a lack of higher education he has always been employed. He suffered psychologically after being diagnosed with prostate cancer and the loss of his mother in 2010. He has been of considerable help and assistance to his cousin, Mr Catlin, who is a partial paraplegic. Mr Catlin's letter sets this out in detail. I am asked to take into account that the Offender has been on onerous bail conditions for 3 years without lapse. 21Counsel takes issue with a number of matters raised in the Crown submissions. I will not refer to each of them exhaustively. One issue is the reference to a standard non-parole period for the subject offences. It is submitted that section 54D of the Act does not apply if the offence is dealt with in the Local Court. That is true so far as it goes, however, section 45 is not in the Division referred to in section 54D. It seems to me that the relevance of the Crown's reference to standard non-parole periods is to stress the Legislature's view of the objective seriousness of the offences and to point out that a Local Court cannot impose a fixed term for such an offence. Authority for that latter contention can be found in R v Way (2004) 60 NSWLR 168 at [47]; Houssenloge v R [2010] NSWCCA 9 at [3]; Aguirre v R [2010] NSWCCA 115 at [32] and Mendes v R [2012] NSWCCA 103 per Davies J. 22Issue is next taken with the Crown submissions referring to "grooming". But that aspect, and using that terminology, is specifically raised in the report of Anne Young, Senior Specialist Psychologist, Community Offender Services, dated 29 June 2011, which is in evidence before the Court. As such, the Crown is entitled to refer to it. The content of the notes is not in evidence other than the agreed assertion that their content was "romantic in nature" (whatever that may mean). For myself, I would have thought their content was particularly relevant to the state of mind of the Offender at the relevant times, however, they are not before the Court and I cannot speculate about them. 23Issue is next taken to reference of the offences involving AB's younger sister. It was submitted that the factual material in the Crown Submissions should not be before the Court. It needs be said at once that a Court does not proceed to sentence in a vacuum, particularly given the family dynamics in the present case. For my part, I took the reference to the other charges as advisory only and I have seen nothing of the actual factual allegations concerning the younger sister. 24I take this opportunity to record my thanks to the Crown and Defence for their helpful written submissions. Matters of General Principle 25It is of considerable significance when assessing the objective seriousness of indecent assaults against children to consider the actual character of the assault, including the degree of physical contact involved: R v PGM (2008) 187 A Crim R 152 at [31], applying GAT v R [2007] NSWCCA 208 at [22]; Corby v R [2010] NSWCCA 146 at [71]. In the present case there was, in my view, a steady escalation of offending conduct. The contact progressed from hugging and kissing AB on the mouth, to rubbing her buttocks on the outside of her clothing, to placing his hand on her buttocks underneath her underwear. Contact progressed further to putting his hands down the front of her underwear and rubbing her on her bare genital area to grabbing her breasts and causing her physical discomfort. 26This progressive behaviour is, as outlined in the Report of Anne Young, Senior Specialist Psychologist, consistent with "the grooming process where a sex offender gradually desensitises a child to increased levels of sexual intrusiveness." Such was the process adopted by this Offender. 27The Courts have emphasised that the criminal law in this area operates to protect children from themselves, as well as from those who may exploit their vulnerability: R v Dagwell [2006] NSWCCA 98. Even if they are not unwilling participants: R v McClymont (Unrep, NSWCCA, 17/12/1992) and R v Brady (Unrep, NSWCCA, 3/3/1994). 28The age difference between the Applicant and the victim aggravates the objective seriousness of the offence: Dagwell (supra) at [35]. See also Kenny v R [2010] NSWCCA 6 at [3]-[8], [38]-[41]. In this case, given the Offender's association with the family over time, there could be no suggestion of any doubt in his mind as to the Complainant's age. At the material times, the Offender was aged 52 years and the Complainant was aged 13 years. See Corby v R [2010] NSWCCA 146 at [77]. 29Also relevant to the objective seriousness of the offences is the fact that the Offender's association with the Complainant came about through his friendship with, and employment by, her family so that some element of breach of trust is reflected in his offending: Corby (supra) at [79]. See also R v Muldoon (Unrep, NSWCCA 13/12/1990). 30There is nothing put forward to suggest the use of threats or coercion by the Offender, however, an absence of threats "may have much less, and perhaps little, weight" in the context of offending by persons in positions of authority or trust over their victims than in the case of Offenders not in such a position. See BT v R [2010] NSWCCA 267 at [24] per RS Hulme J referring to R v Woods [2009] NSWCCA 55 at [52]-[53]. Lack of Criminal History and Good Character. 31Given the Offender's prior lack of criminal antecedents, his obvious work ethic and general reputation, the question of good character requires more than cursory attention - particularly given the understandable emphasis placed upon it by the Offender's Counsel. 32The common law as to prior good character is clear. It is of less significance in cases involving sexual misconduct towards the young than otherwise would be the case: see R v AEL (2005) NSWCCA 148. Ryan v The Queen (2001) 206 CLR 267 is authority for the proposition that an offender's otherwise unblemished past is still deserving of some measure of leniency. 33However, since the decision in Ryan, the New South Wales Legislature enacted section 21A (5A) and (5B) of the Crimes (Sentencing Procedure) Act 1999 which specifically provides that in child sexual offences, a Court is not to take good character or lack of previous convictions into account as a mitigating factor if the Court is satisfied that the factor concerned was of assistance to the Offender in the commission of the offence. 34There is no doubting the Offender's good reputation preceded him. He was well and respectably known generally, and, particularly, by AB's parents. The Offender was entitled to rely upon his standing and reputation. Had it been otherwise he would not have been permitted to have the close contact with AB as he obviously did. 35These charges do not, for example, arise out of a chance or casual encounter between strangers where the Offender, coincidentally, just happened to be of prior good character and that, perhaps, is where a distinction can be drawn. It may seem harsh, but the Parliament's intention is clear. If character and repute was "of assistance" in the commission of the offence - that character cannot be relied upon. I am satisfied that good character was, in the requisite sense, of assistance to the Offender in the commission of the offences and, as a consequence, I must not take that character into account as a mitigating feature. 36It is not the case that the subject offences were unpremeditated, unplanned and opportunistic. Quite to the contrary. I have already made comment as to the actual character of the assaults, including the degree of physical contact involved and the gradual desensitising of a child to increased levels of sexual intrusiveness. Victim Impact Statement. 37The Court has received a Victim Impact Statement (VIS) from AB outlining the impact the Offender's conduct has had upon her. The common law requires sentencers to have regard to the effect of the crime on the victim: Porter v R [2008] NSWCCA 145 at [54]. See also Siganto v The Queen (1998) 194 CLR 656. The common law rule is that a court can only have regard to the consequences of an offence that were intended or could reasonably have been foreseen: R v Josefski [2010] NSWCCA 41 at [3]-[4], [38]-[39]. Section 3A(g) of the Crimes (Sentencing Procedure) Act 1999 provides that one of the purposes for which a court may impose a sentence on an offender is "to recognise the harm done to the victim of the crime and the community". 38Division 2 Pt 3 Crimes (Sentencing Procedure) Act contains provisions regulating the receipt of VIS. In the Local Court it applies, relevantly for present purposes, to offences that are prescribed sexual offences referred to in Table 1 of Sch 1 Criminal Procedure Act (previously "or an act of sexual assault"): see s 27(3)(c) and (d). The VIS complies otherwise with the statutory requirements for admission. 39The application of s 3A(g) and s 21A(2)(g) ("the injury, emotional harm, loss or damage caused by the offence was substantial") in a given case is limited by the common law rule cited in Josefski at [38]. What is "substantial harm" in this area of the law was considered as far back as 1993 in R v Allpass (1993) 72 A Crim R 561 where the Court of Criminal Appeal acknowledged that child sexual assault offences are "apt to produce" adverse long-term consequences of a psychological nature "even though they may not manifest themselves until some time in the future". Allpass was applied in Enrique v R [2012] NSWCCA 60 at [50]. 40In making a valid assessment of future psychological harm to the child it is not necessary for the Crown to adduce evidence from studies on the subject or an individual psychiatric assessment. In DBW v R [2007] NSWCCA 236 at [239], Spigelman CJ said, "the public and the Courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse." He continued that the sentencing judge was permitted to draw a reasonable inference about the effect of the crime on the child and "would have been entitled to act on the basis that there was a substantial harm." 41I have carefully read the VIS setting out the physical and emotional consequences of the progressive course of conduct undertaken by the Offender. She was, as previously noted, 13 years old at the time of the offences. She resided on a property in a country area and I have had regard to the impact on her and her family arising out of these offences, particularly in the important time of her personal development. The material adduced permits a reasonable inference that the harm to AB is "substantial" within the meaning of section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 and I so find. 42In applying the content of the VIS to the principles in Josefski, (supra) I cannot conclude that the consequences as set out by AB were intentional on the part of the Offender. Nevertheless, any person with even a modicum of insight and morality could reasonably foresee the consequences complained of arising out of the Offender's actions. Likelihood of re-offending and rehabilitation 43I have read the report of Anne Young, Senior Specialist Psychologist, Community Offender Services, dated 29 June 2011. It is somewhat dated but I doubt much, if anything, has changed. The report says the Offender's risk of sexual re-offending was assessed using an actuarial risk assessment, the Static-99R. The Offender's total score on the Static-99R places him in the low risk category. I note during the interview, while admitting to the sexual offences, the Offender said he was still feeling that he had an emotional connection with AB and had been motivated by helping her. I have to say I find this difficult to reconcile with his now admitted, and more serious, sexual misconduct with AB's then 8-year-old sister. In my view one does not stand with the other. 44Ms Young says that as a low risk offender he would be eligible for community based sex offender treatment conducted by Corrective Services, however, this program is only conducted in Sydney and requires weekly attendance over an 8 to 10 month period. She says that should he receive a custodial sentence, as he is going to, he would be eligible to apply for the CORE custody-based treatment program for low to moderate risk offenders. Pre-Sentence Report 45An updated Pre-Sentence Report from Mrs Luff and dated 16 August 2013 (annexing the original PSR of 29/6/2011 and the Pre-Sentence Consultation of Anne Young of 29/6/2011) says the Offender resided in Ariah Park all his life but for the past two years he has been living with his sister and partner in another country town. He works as a casual farm labourer and is not receiving any Centrelink payments. The Offender indicated that he had developed an attachment to AB and that he "worries about his situation all the time and that it was the dumbest thing (he) had ever done." 46During the adjournment the Offender was referred to the Departmental Psychologist, Mr Evans for an up-date assessment the result of which is included in the PSR. He remains a low risk of sexual recidivism, however, when the Facts become available in the charges involving the younger sister a further review will be necessary prior to any final opinion. The PSR says the Offender presented as a quiet man with little insight into his offending behaviour. He is assessed as suitable for a medium/high level of intervention by the Service including an individualised case plan with ongoing intervention with the Service's Senior Psychologist. He is unsuitable for a Community Service Order. Assessment of Criminality 47I assess the criminality of Sequence 1 to be mid-way on the scale of offending. I assess the criminality in Sequences 2 and 4 to be above mid-way on the scale of offending due to the increased level of intrusiveness in physical contact directly with the person of the Complainant. I assess the criminality in Sequence 3 to be well above midway on the scale of offending dealing, as it does, with the touching of AB's vaginal area on bare skin. I am not advised for how long this conduct persisted but it seems to have been without demur or protest by AB and provides a fair indication that the desensitising process was all but complete. As noted earlier, it is as well her mother found the Offender's notes when she did. 48According to the Court file, pleas of not guilty were initially entered to all charges but pleas of guilty were entered to the present charges on 20th February 2012. There has been quite some delay in bringing the sentencing on for hearing due to charges in the District Court involving AB's younger sister that were listed for trial. I am advised that sentencing for those matters is listed in September 2013. I will allow a pragmatic discount of 20% to recognise the utilitarian value of the pleas. Cumulation of Penalty 49The issue now arises as to whether any sentences imposed in respect of the offences with which I am now dealing should be served cumulatively. Cumulation of sentence will be appropriate when wholly concurrent sentences would not take into account the differences in conduct in the various offences with which the Court is dealing, or, put another way, where there are completely different episodes of criminality. 50In Vaovasa v R [2007] NSWCCA 253 at [15] Justice Howie said It has been made clear that, simply because a number of offences arise out of the same incident or course of criminal conduct, it does not follow that concurrent sentences will be appropriate to meet the total criminality involved. 51His Honour referred to the decision in Cahyadi v R (2007) 168 A Crim R 41, and continued at [16]: This is not a new principle. Similar observations have been frequently made in this Court since Pearce was taken to require that each individual sentence imposed reflect only the criminality of the conduct to which it related and that the totality principle be addressed by an order making the individual sentences concurrent or at least partly cumulative. 52In response to any suggestion that this was simply one ongoing episode of criminality, and accordingly, any sentences imposed should be wholly concurrent, I refer to the judgment of Howie J (Gyles JA, Fullterton J agreeing) in R v Merrin [2007] NSWCCA 255 at [36]: This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. The statement of Simpson J in R v Hammoud (2000) 118 A Crim R 66 concerning the discretion of a sentencing judge in respect of the structuring of offences has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court. 53In Nguyen v R [2007] NSWCCA 14 at [12] Howie J (Sully and Price JJ agreeing) said:- It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order that sentences be served concurrently or made, at least, partially cumulative. There is no rule that sentences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R v MMK [2006] NSWCCA 272. 54I have come to the view that there must be some partial cumulation in sentences to be imposed upon the Offender to address the total criminality involved given the nature and extent of the offending. Also, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: see R v Wheeler [2000] NSWCCA 34 at [36]-[37]. 55The applicable sentencing principles are found in sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999: see R v Ma (2004) 145 A Crim R 434; R v King (2004) 150 A Crim R 409 per McColl JA. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. 56In arriving at that conclusion I have regard to the nature and repetition of the offences committed, the objective seriousness of the criminality involved, the need for general and specific deterrence and the subjective circumstances of the Offender. Taken together, I am of the view that this is not an appropriate case for a sentence designed to assist in the rehabilitation of the Offender at the expense of deterrence, retribution and denunciation. 57It follows from what I have just said that it is not appropriate for the sentences to be suspended: R v Zamagias [2002] NSWCCA 17; R v Blundell [2008] NSWCCA 92 per Simpson J. There is no pre-sentence custody to take into account. I turn now, and perhaps not before time, to the penalties to be imposed. Penalties. 58For Sequence 1, the Offender is convicted and sentenced to an original term of imprisonment of 12 months. I apply the discount of 20% resulting in an actual term of sentence of 9 months and 18 days, however, in conformity with the decision in Rios v R [2012] NSWCCA 8, per Adamson J (Bathurst CJ and Simpson J agreeing) I will pragmatically round down the sentence in favour of the Offender to one of 9 months with a non-parole period of 6 months to commence on 19 August 2013 and expire on 18 February 2014. There will be a balance of term of 3 months to commence on 19 February 2014 and expire on 18 May 2014. 59For Sequences 2 and 4, the Offender is convicted and sentenced to an original term of imprisonment for 18 months. I apply the discount of 20% resulting in an actual term of sentence of 14 months and 12 days, however, in conformity with Rios v R (supra) I will pragmatically round down the sentence in favour of the Offender to an actual term of sentence of 14 months with a non parole period of 9 months to commence on 19 October 2013 and expire on 18 July 2014. There will be a balance of term of 5 months to commence on 19 July 2014 and expire on 18 December 2014. 60For Sequence 3, the Offender is convicted and sentenced to an original term of imprisonment for 2 years. I apply the discount of 20% resulting in an actual term of sentence of 19 months and 6 days, however, again, in conformity with Rios v R (supra) I will pragmatically round down the sentence in favour of the Offender to an actual term of sentence of 19 months with a non parole period of 12 months to commence on 19 December 2013 and expire on 18 December 2014. There will be a balance of term of 7 months commencing on 19 December 2014 and expiring on 18 July 2015. 61I find circumstances are sufficiently special for the statutory proportion to be reduced owing to the Offender's age; this will be his first time in custody; and there has been partial cumulation of sentences. I direct the release of the Offender to parole at the end of the non-parole period provided he is otherwise eligible for release. I direct as a condition of parole that the Offender be subject to supervision by the Probation and Parole Service for such period as that Service deems necessary and undertake any program or treatment recommended by the Service. 62For Sequence 5, the Offender is convicted and ordered to enter into a Bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of 2 years to date from 19 August 2013 with the statutory conditions. Magistrate P.S. Dare SC Cootamundra Local Court 19 August 2013 ********** Publication note: an appeal against sentence by the Offender was dismissed by the District Court on 27 September 2013. 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: 03 October 2013