Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: SHR v R [2014] NSWCCA 94 Hearing dates: 9/04/2014 Decision date: 02 June 2014 Before: Basten JA at [1]; Fullerton J at [3]; Davies J at [61] Decision: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed in the District Court. 4. In lieu, sentence the applicant to an aggregate term of imprisonment of 12 years, to date from 11 September 2010, comprising a non-parole period of 8 years and balance of term of 4 years. The earliest day on which the applicant will become eligible to be released on parole is 10 September 2018. Catchwords: CRIMINAL LAW - appeal against sentence - sexual assault - multiple offences - historical offences - juvenile offender - delay between commission of offence and sentence - aggregate sentences of imprisonment - whether indicative sentences took guilty plea into account - whether sentencing judge took applicant's youth and immaturity into account - whether aggregate sentence manifestly excessive - re-sentence Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 17, 18, 28 Crimes Act 1900 (NSW), ss 61D, 94, 97 Crimes (Amendment) Act 1989 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44, 53A; Pt 3 Criminal Appeal Act 1912 (NSW), s 6 Probation and Parole Act 1983 (NSW) Sentencing Act 1989 (NSW) Cases Cited: BT v R [2012] NSWCCA 276 Fernando v R (1992) 76 A Crim R 58 KT v R [2008] NSWCCA 51; 182 A Crim R 571 MPB v R [2012] NSWCCA 213 PD v R [2012] NSWCCA 242 R v Brown [2012] NSWCCA 199 R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481 R v Murray (1987) 11 NSWLR 12 R v Nikolovski; R v Alam (Court of Criminal Appeal (NSW), 5 December 1990, unrep) R v Nykolyn [2012] NSWCCA 219 R v Page (Court of Criminal Appeal (NSW), 17 June 1993, unrep) R v Palmer (Court of Criminal Appeal (NSW), 4 September 1992, unrep) R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 R v Scerri (Court of Criminal Appeal (NSW), 28 June 1994, unrep) R v Tainsh (Court of Criminal Appeal (NSW), 4 August 1988, unrep) R v Williams (Court of Criminal Appeal (NSW), 15 August 1991, unrep) Rosenstrauss v R [2012] NSWCCA 25 Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 Category: Principal judgment Parties: SHR (Applicant) The Crown (Respondent) Representation: Counsel: H Cox / C Wasley (Applicant) N Noman SC (Crown) Solicitors: Aboriginal Legal Service (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/150270; 2010/304771; 2011/164852 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-09-06 00:00:00 Before: Woods DCJ File Number(s): 2010/150270; 2010/304771; 2011/164852 Judgment 1BASTEN JA: I agree with the orders proposed by Fullerton J. I also agree with her reasons. I set out what I considered the principled approach to sentencing for 'old' offences in MPB v R [2012] NSWCCA 213 at [4]-[33]. 2The error in specifying indicative sentences in accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), while not determinative of the outcome of the appeal, caused confusion in this case and was apt to lead to a misreading of the outcome for other purposes. 3FULLERTON J: The applicant seeks leave to appeal against sentence imposed by Woods DCJ on 6 September 2012 after he adhered to pleas of guilty entered on 20 July 2012 to the following offences: (1)Sexual intercourse without consent contrary to s 61D(1) of the Crimes Act 1900 (NSW), maximum penalty 8 years imprisonment (since repealed). (2)Robbery with an offensive weapon, contrary to s 97 of the Crimes Act, maximum penalty 20 years imprisonment. (These offences relate to an assault on LG committed on 10 July 1989.) (3)Sexual intercourse without consent contrary to s 61D(1) of the Crimes Act, maximum penalty 8 years imprisonment (since repealed). (4)Robbery with an offence weapon, contrary to s 97 of the Crimes Act, maximum penalty 20 years imprisonment. (These offences relate to an assault on MS committed on 15 December 1989.) (5)Sexual intercourse without consent, and in company, contrary to s 61D(1B) of the Crimes Act, maximum penalty 10 years imprisonment (since repealed) (6)Steal from person, contrary to s 94 of the Crimes Act, maximum penalty 14 years imprisonment. (7)Sexual intercourse without consent, and in company, contrary to s 61D(1B) of the Crimes Act, maximum penalty 10 years imprisonment (since repealed) (These offences relate to an assault on AS committed on 18 January 1990.) A further offence of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act (since repealed) was taken into account on a Form 1 attached to count 1. 4The offences were committed against three women in unrelated incidents between 10 July 1989 and 18 January 1990 when the applicant was aged between 16 years and 3 months and 16 years and 9 months. He was aged 39 at the time of sentence. 5In 2010 the police were notified by the "Cold Case Justice Project" that the applicant's DNA profile matched the DNA profile of the offender in each of the three incidents. On 16 June 2010, whilst in custody for unrelated offences, the applicant was charged with the offences the subject of counts 3 and 4. On 13 September 2010, after being released to bail on those offences, he was charged in relation to the offences the subject of counts 5, 6 and 7. He was charged in relation to counts 1 and 2 on 19 May 2011. 6Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), Woods DCJ imposed an aggregate sentence of imprisonment of 14 years to date from 11 September 2010 with a non-parole period of 10 years. The statutory ratio between head sentence and non-parole period was varied by six months after his Honour found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act. 7The applicant relied upon the following grounds of appeal: Ground 1: His Honour failed to take into account the applicant's youth and immaturity at the time of the commission of the offences. Ground 2: The sentences imposed were manifestly excessive. 8The applicant's written submissions in reply identified a potential error in the way his Honour dealt with the applicant's pleas of guilty in the imposition of an aggregate sentence under s 53A, s 53A(2)(b) requiring the sentencing judge to account for the pleas of guilty in the specification of the indicative sentence for each count rather than applying the discount to the aggregate sentence. Although the applicant did not seek leave at the hearing of the appeal to amend the grounds of appeal, the Crown accepted that if the sentencing judge did not comply with s 53A(2)(b), and that error was shown to be material to the individual indicative sentences, or any of them, then consideration would need to be given to s 6(3) of the Criminal Appeal Act 1912 (NSW). 9The following schedule sets out sentences indicated by his Honour referable to the maximum penalties that applied in 1989/1990. It also includes an indication of those sentences both in compliance with the obligation under s 53A(2)(b) to apply the discount for the plea of guilty and without that discount being applied: Offence Maximum penalty as at the date of the offending Indicative sentence Starting point if indicative sentence included 20% discount for plea of guilty as required by s 53A(2)(b) Adjusted indicative sentence if 20% discount for plea of guilty was applied as required by s 53A(2)(b) Ct 1: s 61D(1) + Form 1. 8 years 6 years 7 years 6 months 4 years, 9 months 18 days Ct 2: s 97 20 years 4 years 5 years 3 years, 2 months, 12 days. Ct 3: s 61D(1) 8 years 5 years 6 years 3 months 4 years Ct 4: s 97 20 years 4 years 5 years 3 years, 2 months, 12 days. Ct 5: s 61D(1B) 10 years 6 years 7 years 6 months 4 years, 9 months 18 days Ct 6: s 94 14 years 3 years 3 years 9 months 2 years, 4 months, 24 days Ct 7: s 61D(1B) 10 years 6 years 7 years 6 months 4 years, 9 months 18 days The agreed facts for sentencing purposes 10Counts 1 and 2, together with the offending the subject of the Form 1, concern offending on 10 July 1989. At that time the applicant was 16 years and 3 months of age. The victim, LG, was aged 18. She was walking home sometime after 4.45pm when the applicant grabbed her from behind, placed one hand over her mouth and the other around her waist and said, "Don't make a noise". She screamed. The applicant said, "Shut up I've got a knife and I will kill you". He presented a pocket knife before dragging her into a nearby park. The applicant then took about $13 out of her wallet. (This conduct attracted the armed robbery charges the subject of count 2.) 11The applicant then started to put his hand up LG's skirt. She falsely protested that she was pregnant in an unsuccessful attempt to deter the applicant from assaulting her further. She started crying. The applicant said, "Shut up or I'll hurt you". The applicant then pulled off her underwear and put his fingers in her vagina and tried to kiss her. When a person living nearby went outside his home to calm his barking dog the offender placed both hands over the victim's mouth. Thereafter he again put his fingers into the victim's vagina before putting his penis into her mouth. The conduct grounded the offence of sexual intercourse without consent on the Form 1. When the victim struggled for breath the applicant grabbed her by the hair and banged her head onto the ground. The applicant then inserted his penis into her vagina (count 1). 12After about five minutes of sustained sexual intercourse the applicant said, "Don't move and don't make a noise because I've still got the knife and I will hurt you". He then used LG's clothing to tie her feet together and her hands behind her back. He stuffed her stockings in her mouth. After examining the contents of her wallet the applicant announced that he knew where she lived and that if she screamed he would come back and get her. LG waited for about ten minutes, untied herself and reported the assault to police. 13Counts 3 and 4 concern unrelated offending on 15 December 1989, when the applicant was aged 16 years and 8 months. The victim, MS, aged 38, was home alone with her two children, aged 4 years and 10 months, when she was confronted by the applicant standing over her bed. MS screamed and the applicant said, "Be quiet, I've got a knife". The applicant then tied MS's hands behind her back and demanded her wallet from which he removed between $10 and $15. This constituted the robbery the subject of the fourth count. 14After returning to the bedroom, the applicant said he did not want to hurt her and she should not make any sound. The baby cried and MS indicated it was her baby making the noise. The applicant then removed MS's pants and inserted his penis into her vagina (count 3). Sometime during the assault the applicant called MS a "fucking slut". After a short time he obtained a tea towel and tied her ankles together. Before he left he said, "If you call the police, I'll keep coming back. Wait ten minutes, I want to get away". The applicant then left the premises. Thereafter MS attended the hospital and the police station. 15The offending the subject of counts 5, 6 and 7 occurred on 18 January 1990 when the applicant was aged 16 years and 9 months. The victim, AS, aged 25, was walking home at about 11.20pm when a hand was placed over her mouth and her head was pulled back by her hair. She felt a second person holding her arms behind her back. The two men then pushed her into a laneway. Assuming the men intended to rob her, AS said, "Just take my bag but give me my keys", whereupon the men pushed her into another darker laneway. She was directed not to scream. She was then pushed to the ground and her skirt and underwear removed. One of the men (not the applicant) placed his hands over her mouth and said, "Spread your legs. I don't want him to have to kill you". The applicant then ripped off her blouse and bra, and kissed her vagina before inserting his penis into her vagina. This conduct grounded the laying of count 5. The other male said, "Hurry up, I want her too", whereupon the applicant pinned her to the ground while the other male inserted his penis into her vagina. This conduct grounded count 7. AS immediately reported the matter to the police before attending the hospital. The applicant took the victim's handbag, the subject of count 6. 16Victim impact statements from each of the three women were tendered. Each described the severe and enduring impact of the assaults, including the impact on their social and personal relationships, their heightened fear and anxiety, episodes of depression, and disruption to their employment. The applicant's case 17The applicant did not give evidence. A report of clinical psychologist Mr Champion of 25 July 2012 was tendered. He interviewed the applicant in custody on 24 July and obtained his medical and psychosocial history although, it would appear, with limited supporting information. Mr Champion also administered a range of recognised psychometric tests and reported upon the applicant's intellectual functioning. 18The applicant reported repeated hospital admissions for injuries of various kinds, including a voluntary admission sometime in 2009 under the Mental Health Act 2007 (NSW) where he remained for a period of some months. He was treated with antipsychotic medication. The applicant reported a family history of schizophrenia. He also had a hospital admission in 1997 after a serious drug overdose. At the time of report he was being managed on antidepressant medication and methadone. Mr Champion expressed the opinion that the applicant's underlying poor physical and mental health was likely the result of chronic alcohol and polysubstance abuse from a young age. Mr Champion expressed the opinion that the integrity of the applicant's neurological system could not be assumed, although without access to his medical records it was difficult to confirm whether there was any underlying brain injury as a consequence of alcohol-related brain damage. 19The applicant reported a history of abuse of various medications in his teenage years, including benzodiazepines and painkillers. He also reported first using cannabis at age 13 on a spasmodic basis. He started using amphetamines at age 14 (his older brother being an abuser of that drug) and inhaling and smoking amphetamine with cannabis until the age of 20 when he began using heroin. 20The applicant was assessed as being in the borderline intellectually disabled range which Mr Champion reported was consistent with the applicant's presentation and a history of placement in special education classes at primary school for children assessed to have mild to borderline intellectual disability. Upon testing he had a reading age of about 7 years rendering him essentially illiterate. Mr Champion noted that the aetiology of the applicant's intellectual limitations was unknown. 21The applicant attended a number of different primary schools and left high school at the beginning of Year 10. He struggled thereafter to find any permanent work. Broken periods of incarceration also negatively impacted upon his prospects of stable employment. In Mr Champion's view, the applicant's social and educational deprivation would likely have impacted adversely upon his language-based cognitive development, as revealed on testing. 22The applicant grew up on an aboriginal Mission in Taree, a place Mr Champion observed was known at that time for its disadvantage and social dysfunction. The applicant was one of six children. His parents separated when he was about 10. His father was an alcoholic. His mother moved to Sydney whilst his father stayed in Taree. The applicant moved between Sydney and Taree but became progressively disconnected from his family which led to further substance abuse under the influence of what Mr Champion described as his "subcultural peers". The applicant described himself as "a very angry individual at that time". He reported having been sexually abused when he was about 12 or 13 which Mr Champion considered would likely have contributed to his adjustment problems and mood disturbance as an adolescent. 23Mr Champion resolved to the opinion that the applicant's intellectual limitations and conduct disorder, secondary to social disadvantage, family dysfunction and substance abuse, were probably present at the time of the offending and would likely have compromised his capacity for sound judgment and foresight of the consequences of his actions. Mr Champion expressed the opinion that a combination of the abuse of medication, illegal drugs and alcohol could be expected to lead to disinhibition and impaired personal control. 24Mr Champion reported that although the applicant did not resile from his pleas of guilty it was difficult to obtain a detailed account from him about the offences. He did, however, tell Mr Champion that he believed that he was affected by either alcohol or drugs and that he committed the robbery offences because he was living on the streets and associating with the people he met there. 25The applicant also spoke openly of his regret for his actions and said he felt disgusted with himself, being a man now aged 40 and looking back on his life. He said that the sexual offending just "weren't me" and that he was going through an "angry stage" because his mother and father had separated and he was living on the streets. 26At the time of sentence the applicant had six children with his first child born of a transitory relationship when he was 18. Since that time he has had three further children, again in casual relationships. At the time of sentence he had a relationship of seven years standing to which two children have been born, then aged three and four years. 27Mr Champion considered that the applicant was at risk of institutionalisation given his custodial history, his lack of sophistication and limited intellectual functioning. Mr Champion identified a need for the applicant to be referred to a mental health team for psychiatric oversight and treatment, and monitoring by an alcohol and other drugs service when released to parole. Proceedings and Remarks on Sentence 28His Honour found that the objective seriousness of the sexual assaults against each of the three women was significant, warranting the imposition of sentences in the upper range of sentences relative to sentences which were imposed for similar offending proximate to the date of offending. A schedule of comparative cases was tendered by consent. Most of the sentences imposed in those cases were imposed after September 1989 when the Sentencing Act 1989 (NSW) displaced the operation of the Probation and Parole Act 1983 (NSW). 29However, counts 1 and 2 (and the offence on the Form 1) were committed when the sentencing regime under the Probation and Parole Act prevailed. That regime which had the effect of reducing the non-parole period imposed by the Court by reason of the system of remissions administered by the parole authorities. Counts 3 to 7 were committed following the passage of the Sentencing Act where, after the abolition of the system of remissions, the minimum term imposed by the Court as part of the sentencing order was to be served prior to an offender being considered for release to parole. In addition, all but one sentence on the schedule was passed prior to passage of the Crimes (Amendment) Act 1989 (NSW) which had the effect of substantially increasing the maximum penalty for conduct formally charged as an offence against s 61D(1) of the Crimes Act from 8 years to 14 years and conduct previously charged as an offence against s 61D(1B) of the Crimes Act from 10 years to 20 years. The sentencing judge did not refer to any cases on the Schedule but did note that the sentence he would impose would be "somewhat less" than if he was sentenced under current sentencing practices. He did indicate that he would endeavour to sentence the applicant referable to the sentencing practices at the time of the offending in accordance with R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481 and that was likely to result in a lower aggregate sentence than would be the case were sentences for similar offending imposed under the prevailing sentencing standards. The second ground of appeal questions whether that approach was followed. 30His Honour also noted that the each woman was assaulted where she was vulnerable to attack, either being at home alone (in the case of MS) or walking home alone (in the case of LG and AS) and that they were each demeaned and traumatised by the assaults. He also noted that the offences involved threatening language, threats of violence and the infliction of actual violence in addition to the violence inherent in the sexual assaults. These findings were unchallenged. With regards to the robbery and steal from person offences (counts 2, 4 and 6), his Honour considered that they also constituted serious offending, attracting the imposition of "heavy sentences" relative to sentences imposed for offending of that kind in 1989/1990. The findings as to objective seriousness were not the subject of challenge. 31The first ground of appeal challenged what was said to be his Honour's apparent disregard for the applicant's youth at the time of the offending as a factor operating in mitigation of sentence. 32His Honour acknowledged the report of Mr Champion and what it revealed about the application of the principles enunciated in Fernando v R (1992) 76 A Crim R 58 which he was satisfied operated in the applicant's favour in mitigation of sentence. His Honour also took into account what he described as the applicant's low intelligence which he accepted lessened his moral culpability to some extent. On the appeal it was submitted that the combined influence of these factors and the applicant's youth ought to have resulted in indicative sentences significantly lower than those specified by the sentencing judge which has translated into an excessive aggregate sentence. 33His Honour noted what he described as the applicant's extensive criminal history which commenced in June 1989 when he was dealt with in the Children's Court for a catalogue of property offences, including break, enter and steal, with offending of a similar kind continuing in 1992 and 1995. In 1999 he was convicted in the District Court for one offence of assault occasioning actual bodily harm of a police officer. That was the first conviction for an offence of violence (the applicant being at that time 26 years of age). No further offence of violence was committed until 2008 when he was convicted of common assault and sentenced to imprisonment for 6 months. He was convicted of a further offence of common assault and occasioning actual bodily harm in 2010 which also attracted a prison term which he was serving at the time he was charged with the offending the subject of counts 3 and 4. 34Importantly for present purposes, there were no offences involving the infliction of sexual violence after the offending the subject of the sentence appeal. Although his Honour described the applicant's offending in 2008 and 2009 as "domestic", including stalking and intimidation and a breach of an apprehended violence order, he observed that those offences, while not trivial, did not approach the gravity of the offences for which the applicant was being sentenced. Although his Honour found that the offences committed in the six months between July 1989 and January 1990 were uncharacteristic of the applicant's criminal offending as an adult, nonetheless his criminal history deprived him of the benefit of being sentenced as a person of prior good character. That finding is also not challenged. The approach is, in principle, consistent with authority: MPB v R [2012] NSWCCA 213 at [32]-[33]. Did his Honour err by announcing indicative sentences prior to the application of the discount for the plea of guilty? 35In imposing an aggregate sentence, his Honour was obliged to comply with s 53A of the Crimes (Sentencing Procedure) Act. That section is in the following terms: "53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following: (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) ... (4) ... (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section." [Emphasis added.] 36Significantly for present purposes, s 53A(2)(b) requires indicative sentences to be specified after relevant matters under Part 3 of the Crimes (Sentencing Procedure) Act have been taken into account. Part 3 includes s 22, which is in the following terms: "22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court." 37His Honour indicated that although the pleas of guilty were not entered at the earliest opportunity, he would allow a discount of 20 per cent. He then made the following observations: "Save for the fact that I am sentencing in the aggregate under s 53A of the Crimes (Sentencing Procedure) Act, the sentences which I would have imposed individually for the counts on the indictment would have been as follows: For the sexual assault offence, count 1, and taking into account the matter on the Form 1, six years imprisonment; count 3, five years imprisonment; count 5, six years imprisonment; count 7, six years imprisonment. As for the robberies; count 2, I would have imposed four years imprisonment; for count 4 I would have imposed four years imprisonment; for count 6 (the steal from person offence), I would have imposed three years imprisonment. Those sentences are hypothetical. There is a principle familiar to those practicing in the criminal courts that, where there is a multiplicity of charges, it may turn out to be an inappropriate result if you simply add together all the possible penalties. There are cases where you could end up with hundreds of years. Such outcomes are not appropriate and one must look at the totality. Nonetheless, even allowing a discount of twenty per cent, which I do, the offender is sentenced as follows: Sentenced to imprisonment for fourteen years, to date from 11 September 2010, that sentence to expire on 10 September 2024. I set a non-parole period of ten years, to date from the commencement of the sentence and to expire on 10 September 2020." [Emphasis added.] 38The applicant submitted that the requirement to discount the indicative sentence for the pleas of guilty is not a mere legislative formality. It is the indicated sentence that informs the principle of totality, a consideration which has continued application in the imposition of an aggregate sentence. 39In R v Nykolyn [2012] NSWCCA 219 at [56] RA Hulme J discussed the importance of compliance with s 52A(2)(b) and at [58] stated: "The importance of proper compliance with the requirement to indicate the separate sentences that would have been imposed arises for at least four reasons. First, it assists a sentencing judge in application of the totality principle, an important factor in the assessment of the aggregate sentence to be imposed. Secondly, it exposes for appellate review how it is that the aggregate sentence was arrived at: see R v Brown at [17] per Grove AJ. Thirdly, it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence. Fourthly, it assists this Court to assess an appropriate new aggregate sentence if one or some of the underlying convictions are quashed on appeal." 40Whilst the announcement of an indicative sentence is not itself amenable to appeal on grounds of manifest excess or severity (see Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [227]), s 53A does not relieve the sentencing judge of the obligation to assess the criminality for the separate offending inherent in the individual counts. It follows that if there is patent error in the appointment of an indicative sentence that may reveal error in the aggregate sentence ultimately imposed (see R v Brown [2012] NSWCCA 199 at [17]). Subject to the situation where error in the specification of an indicative sentence is patent (for example where it exceeds the maximum sentence or where the sentence approximates a worst case where the facts do not support that finding), a challenge to the sentence does not involve scrutinising the indicative sentences for error, but whether the aggregate sentence is sustainable. In PD v R [2012] NSWCCA 242, Beech-Jones J observed at [44] (with Basten JA and Hall J agreeing), that for this Court to intervene the applicant must demonstrate that any error in the specification of an indicative sentence (which would necessarily include breach of the obligation to indicate individual sentences in compliance with s 53A(2)(b)) is material to the outcome. 41Even if it is open to find that his Honour did not discount the indicative sentences by 20 per cent (a conclusion which I find irresistible in light of his Honour's sentencing remarks extracted above) the Crown submitted that it is clear that his Honour applied a discount of 20 per cent for the pleas of guilty before the aggregate sentence was imposed which, in effect, neutralised the error. The Crown further submitted that the aggregate sentence is not rendered invalid merely by the failure to apply the discount to the indicative sentences (the language of s 53A(5)). Neither is another sentence warranted in law under s 6(3) of the Criminal Appeal Act given that a significant degree of accumulation between the indicative sentences was called for to reflect the totality of the offending and the aggregate sentence imposed in this case reflects that finding. 42In Brown, Grove AJ (at [35]) noted that in the exercise of the power under s 53A the process of accumulation is notional. Nonetheless, the extent of the need for accumulation can inform the question of whether the aggregate sentence is the product of a sound sentencing exercise. The sentencing reasons in this case do not expose his Honour's rationale in partially accumulating the indicative sentences, however, given the repetition of serious offending over a six-month period, I accept that a lengthy aggregate sentence was inevitable. The applicant's counsel did not submit otherwise. The real question is whether the aggregate sentence is excessive in the sense that it is unreasonable or plainly unjust. 43While I am persuaded his Honour did treat the pleas of guilty contrary to the way mandated by s 53(2)(b), I am not persuaded that the aggregate sentence was necessarily infected by that error such as to compel the positive finding that another sentence is warranted in law. What remains to be considered is whether the sentencing exercise miscarried on other grounds. Ground 1: His Honour failed to take into account the applicant's youth and immaturity. 44The applicant's counsel submitted that, even assuming that the discounts for the pleas of guilty were taken into account in accordance with s 53(2)(b), the length of the indicative sentences relative to the applicable maximum penalties compels the conclusion that his Honour did not give sufficient weight to the applicant's youth at the time of the offending which has translated into an excessive aggregate sentence. 45Counsel submitted that the evidence led on sentence compelled a finding that the combined effect of the applicant's youth and his emotional and psychological immaturity at the time of the offence contributed significantly to his offending. This, it was submitted, not only reduced the need for the aggregate sentence to reflect general deterrence, but it should also have attracted a finding that the gravity of the overall offending was ameliorated in contrast with the way the offending would be viewed were the offences committed by an adult (see KT v R [2008] NSWCCA 51; 182 A Crim R 571, per McClellan CJ at CL at [23]). 46In KT v R at [22], McClellan CJ at CL also emphasised that rehabilitation is an important factor when sentencing a juvenile offender. This is said to be in recognition of the capacity for a young person to reform and better conform to society's norms. Self-evidently, given the passage of time between the applicant's offending and sentence, and the further offending for which he had been charged and sentenced in the interim, the importance of imposing a sentence that took this applicant's prospects for rehabilitation into account did not carry particular weight in the sentencing exercise. For the same reason, personal deterrence was also said to be less significant than would be the case were the applicant to have been sentenced closer to the time of the offending. That said, although the applicant had not achieved rehabilitation in the conventional sense at that time of sentence, he had not committed any offences of a violent sexual nature since 1990 nor any offences where weapons were involved. This was said to add further weight to the submission that the applicant's biological age and his immaturity, and what Mr Champion identified as the applicant's tendency to impulsivity, contributed to the degree of violence inherent in the offending for which he stood to be sentenced. 47The Crown acknowledged that the applicant's youth at the time of the offending was a factor to be taken into account on sentence but submitted that it was entitled to little weight given that the overall offending, in particular the repeated sexual assaults, was indistinguishable from offences committed by an adult (see the discussion in KT v R per McClellan CJ at CL at [24]-[25] and in the authorities referred to in the judgment of Hall J at [103]-[104]). The Crown submitted that in this case the gravity of the sexual violence inflicted on each of the three women, including in each case the application of force and threats of harm coupled with the fact that there was some degree of planning involved in the commission of the offences, reinstated the need for general deterrence and retribution to feature predominantly in the sentences indicated and the aggregate sentence imposed, as distinct from those principles being subordinated by the applicant's youth. 48I accept that submission. The weight to be afforded to the applicant's youth was one of the factors to be taken into account in a sentencing exercise which, as his Honour noted, required him to balance out competing considerations in the interests of achieving a just result. The fact that he did not express any concluded view as to the part which the applicant's youth played in the repeated course of offending or in the commission of any of the individual offences, or refer to any of the authorities where youth is considered as a mitigating factor, does not persuade me that he failed to take the applicant's youth into account or to give it appropriate weight. His Honour's observation that each offence involved threats or the application of force, "as it almost inevitably does in sexual assault cases involving adults", would tend to suggest that he regarded the applicant's repeated sexual offending as committed in the way an adult offender might behave, a finding which I consider open to him. 49I would dismiss the first ground of appeal. Ground 2: The sentences imposed were manifestly excessive. 50In support of this ground, one of the submissions advanced was that by the combined operation of ss 3 and 17 of the Children (Criminal Proceedings) Act 1987 (NSW) all of the offences were capable of being dealt with in the Children's Court as none were serious children's indictable offences (as defined). The maximum applicable penalty at the relevant time were the matters dealt with in the Children's Court was an order committing the offender to the care of the relevant Minister for a period of two years. Section 28 of the Act displaces the jurisdiction of the Children's Court where a juvenile is over 21 at the time of charge. As noted, the applicant was aged 37 when he was charged with counts 3-7 and aged 38 when charged with counts 1 and 2. While it was open to the applicant to ask what might have happened had he been arrested and dealt with expeditiously after the offending, the answer is that he would not have been dealt with by the Children's Court but according to law, pursuant to s 18(1)(a): BT v R [2012] NSWCCA 276 at [15]-[23]. 51As noted above, the sentencing judge accepted that he was obliged to sentence the applicant relative to the sentencing standards that applied at the time of the applicant's offending, and that the schedule of cases for offences committed contrary to s 61D(1) and s 61D(1B) between 1985 and 1996 provided by the applicant's solicitor (with which the Crown agreed) were a helpful guide. A schedule of what I consider the most closely comparable cases extracted from the schedule is annexed to this judgment. The applicant submitted, however, that the indicative sentences far exceeded any of the cases of comparative seriousness on the schedule and an excessive aggregate sentence has resulted. Counsel submitted that conclusion necessarily follows if the indicative sentences were not discounted by pleas of guilty as required by s 53A(2)(b), where against a maximum penalty of 8 years for counts 1 and 3 sentences of 7 years and 6 months and 6 years and 3 months were indicated, and, against a maximum penalty of 10 years for counts 5 and 7 sentences of 7 years and 6 months were indicated. 52Counsel argued that even assuming the aggregate sentence was discounted for the pleas of guilty, an aggregate sentence of 14 years with a non-parole period of 10 years was manifestly excessive when compared with sentencing patterns of 20 years ago, in particular given the combined impact of the mitigating features present in the applicant's case, including his youth and immaturity, his deprived and dysfunctional upbringing and his compromised intellectual capacity. 53The Crown submitted that the aggregate sentence imposed upon the applicant was not excessive considering the violence and threats of violence inflicted on three women in separate incidents. The Crown submitted that the aggregate sentence, although severe, aligned with the findings of the sentencing judge that each of the offences were towards the higher range of penalties that would have been imposed for offending between 1989 and 1990. 54For my part, having regard to the applicable sentencing standards at the time of the offending as reflected in the summary of cases attached (the utility of which is moderated to some extent by the fact that the extent of redirection for the pleas of guilty cannot be readily identified and where most cases relate to sentences imposed after trial), and after taking into account the applicant's youth and subjective circumstances, the applicant's offending should not have attracted the severity of sentences indicated or the aggregate sentence imposed. In the result, I am satisfied that the aggregate sentence was excessive and that the applicant should be re-sentenced. 55After giving full weight to the objective seriousness of the offending, and after taking into account the applicant's subjective circumstances and other factors relied upon in mitigation of penalty in the context of the sentencing standards that applied between July 1989 and January 2000, I would specify indicative sentences in accordance with following schedule: Offence Maximum penalty as at the date of the offending Indicative sentence after applying a 20% discount for plea of guilty Ct 1: s 61D(1) + Form 1. 8 years 3 years Ct 2: s 97 20 years 2 years Ct 3: s 61D(1) 8 years 4 years Ct 4: s 97 20 years 2 years Ct 5: s 61D(1B) 10 years 4 years 6 months Ct 6: s 94 14 years 2 years Ct 7: s 61D(1B) 10 years 4 years 6 months 56The variations from the sentences indicated by the sentencing judge in the Schedule above reflect both the need to comply with s 53A(2)(b) and my best attempts to retrieve applicable sentencing practices at the time of offending. Although count 1 necessitates taking the offending on the Form 1 into account, the sentence imposed would have been subject to the Probation and Parole Act, a factor relevant to the time likely to be served, though not relevant in fixing the sentence: Rosenstrauss v R [2012] NSWCCA 25 at [12]-[16]; MPB at [19]. The vast majority of the cases to which the sentencing judge and this Court were referred indicate terms of imprisonment which tended to increase after the Sentencing Act passed into law. I have reduced the adjusted indicative sentence for count 1 set out in [9] above for that reason. 57The indicative sentences I propose for counts 5 and 7 have also been reduced from the adjusted indicative sentence in the Schedule at [9] for the reasons already given. They are, however, more serious than counts 1 and 3 being committed in company, as reflected by the higher maximum penalty, and attract a higher indicated sentence than counts 1 and 3 for that reason. 58I am conscious of having made a significant reduction in the indicative sentences for counts 2 and 4, both counts of armed robbery. Although we were not provided with any comparative cases for armed robbery, I consider that the armed robberies committed by the appellant against two of the three women, were they stand alone offences, would not have attracted the length of sentence as indicated by the sentencing judge. The armed robbery offences were not the subject of any submission from the Crown or the applicant's counsel on the appeal, that offending being subordinate to the serial sexual assaults. 59After applying the principle of totality and after a finding of special circumstances, with what I regard as appropriate weight being given to the risk that the applicant will suffer the effects of institutionalisation and the need for him to be supervised for an extended period on parole, I would impose an aggregate sentence of 12 years to date from 11 September 2010 and to expire on 10 September 2022. I would set a non-parole period of 8 years to date from the commencement of the sentence and to expire on 10 September 2018. 60The orders I propose are as follows: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed in the District Court. 4. In lieu, sentence the applicant to an aggregate term of imprisonment of 12 years, to date from 11 September 2010, comprising a non-parole period of 8 years and balance of term of 4 years. The earliest day on which the applicant will become eligible to be released on parole is 10 September 2018. 61DAVIES J: Based on the present approach to sentencing, the aggregate sentence which the sentencing judge imposed was entirely appropriate. Further, making the necessary adjustments to the indicative sentences by reason of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), those indicative sentences would, for offences now committed, be entirely appropriate. 62As the Sentencing Judge rightly observed, the objective seriousness of the offences was significant and he correctly characterised them as being towards the higher range of penalties that ought to be imposed for those offences. In my opinion, and even taking into account the Applicant's subjective circumstances as Fullerton J details, the circumstances of each of the rapes called for significant punishment. 63However, the Sentencing Judge was bound by R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 to sentence the Applicant in accordance with sentencing practice at the time the offences were committed, that is in 1989 and 1990. It is apparent that his Honour endeavoured to carry out that task, but the difficulty is highlighted by what Spigelman CJ said in R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [94]. The Chief Justice there made reference to the difficulty in determining what would have been done at a time 20 years or more earlier. Of course, it was made clear in MJR that, notwithstanding the difficulty, that was the course that must be followed for the reasons given in the various judgments in MJR. 64I am persuaded by the close analysis carried out by Fullerton J of the cases referred to in the schedule to her Honour's reasons that the aggregate sentence imposed by his Honour and the indicative sentences that he identified were manifestly excessive having regard to the date of the commission of the offences. This is no criticism of his Honour who had a difficult task to perform. A schedule of cases was provided by counsel then acting for the Applicant but, it seems, his Honour was given little assistance as to how those cases might inform his Honour of sentencing practices at the time. 65Accordingly, I agree with the reasons of Fullerton J and the orders that her Honour proposes. SCHEDULE OF COMPARATIVE CASES R v Murray (1987) 11 NSWLR 12 The appellant was convicted after trial for six counts of sexual intercourse without consent contrary to s 61D and one count of forcible abduction of a woman contrary to s 89. The appellant, who was the victim's employer, drove the victim to a location, and had sexual intercourse with her and struck her to the face. The next evening the appellant arrived at her home. She attempted to leave but he grabbed her by the hair, hit her a number of times to the face, kicked her in the chest and abducted her in his car where he forced her to perform fellatio, and twice had intercourse with her. He returned to his home where he forced her and his girlfriend to perform oral sex on him and on each other. There is no reference in the judgment to the offender's subjective circumstances. The appellant was sentenced to 7 years imprisonment for each count, to be served concurrently, with a non-parole period of 5 years imprisonment. R v Tainsh (Court of Criminal Appeal (NSW), 4 August 1988, unrep) The applicant pleaded guilty to eight counts, including six counts of sexual intercourse without consent contrary to 61D(1), and one count of break and enter and committing sexual intercourse without consent. The appellant broke into the victim's bedroom and committed multiple sexual assaults including vaginal intercourse, digital anal intercourse, and multiple acts of forced fellatio. The appellant was 24 years old. The appellant's childhood was characterised by domestic conflict. He had a criminal record including offences of violence. The applicant demonstrated a "marked degree" of remorse and contrition. For the offence of breaking and entering a dwelling house with intent, the appellant was sentenced to 12 years imprisonment. For five of the offences contrary to s 61D(1) the appellant was sentenced to 4 years imprisonment, to be served wholly concurrently. For the sixth offence contrary to s 61D(1) the appellant was sentenced to 6 years imprisonment. For an offence of stealing the appellant was sentenced to 5 years imprisonment. The sentencing judge imposed an effective sentence of 12 years imprisonment with a non-parole period of 6 years and 6 months. The Court of Criminal Appeal found that the sentences did not exceed the legitimate bounds of the discretionary range and dismissed an appeal against sentence. R v Nikolovski; R v Alam (Court of Criminal Appeal (NSW), 5 December 1990, unrep) The appellant was convicted after trial of three counts of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse (s 61C), three counts of sexual intercourse without consent (s 61D) and one count of common assault (s 61). The victim, aged 16, and her companion accepted an offer to have coffee with the appellant and two other men in the appellant's apartment. After the victim refused to have sexual intercourse with one of the men, the appellant returned to the room with a rifle and told the victim to remove her clothes. The appellant and the two other men had sexual intercourse with the victim, after which the appellant pointed the rifle at the victim and said he was going to kill her. The sentencing judge imposed concurrent sentences, with the effective sentence being 5 years 3 months, with a minimum non-parole period of 4 years. Enderby J observed (Loveday and Hunt JJ agreeing) that the sentences were "light" but not outside the range available to the sentencing Judge. An appeal against conviction and a crown appeal against sentence were both dismissed. R v Williams (Court of Criminal Appeal (NSW), 15 August 1991, unrep) The appellant was convicted of two counts of sexual intercourse without consent contrary to s 61D(1). The appellant threatened the victim that if she did not have sexual intercourse with him he would "use a knife". The appellant left the lounge room and the victim heard cutlery rattling in the kitchen. The appellant returned, put his fingers in the victim's vagina, and then performed cunnilingus. The appellant demanded that the victim perform fellatio but she refused. He stopped when he heard a car approaching next door. The victim climbed out of her bedroom window and ran to her neighbour's house for assistance. When the victim returned to the premises she found a knife wrapped in a tea towel in the lounge room. The sentencing Judge found the offences to be "extremely grave". The appellant, aged 33, did not express remorse, had a lengthy criminal history including offences of violence, and what his Honour described as an "unhealthy attitude to females". The appellant was sentenced to 6 years imprisonment on both counts, to be served concurrently, with a non-parole period of 4 years and 6 months. An appeal against conviction and sentence was dismissed by the Court of Criminal Appeal. R v Palmer (Court of Criminal Appeal (NSW), 4 September 1992, unrep) The appellant was convicted after trial of six counts of sexual intercourse without consent contrary to s 61D(1), and one offence of indecent assault contrary to s 61E(I). The appellant assaulted the victim some time around 3am in Kings Cross, including digital and penile penetration, cunnilingus and forced fellatio. The victim twice tried to escape by running away but the appellant caught her and continued to assault her, at one point threatening to kill her if she did not comply. The appellant had a criminal record but not for offences of violence or sexual violence. He was on parole at the time of the offences. For each of the six offences contrary to s 61D(1), the appellant was sentenced to 5 years and 8 months imprisonment, with an additional term of 2 years, to be served concurrently. For the indecent assault offence the appellant was sentenced to 3 years imprisonment to be served concurrently. His Honour observed that but for approximately 3½ months pre-sentence custody, he would have imposed minimum terms of 6 years. The Court of Criminal Appeal found that the sentences were "heavy" and at the "upper end", but with regards to the totality of the criminality involved, not outside the discretionary range. R v Page (Court of Criminal Appeal (NSW), 17 June 1993, unrep) The appeal was commenced after trial against conviction and sentence for five counts of sexual intercourse without consent contrary to s 61D, and one count of indecent assault contrary to s 61E. The appellant followed the victim before detaining her and dragging her to a nearby park where he committed the six offences. The Court of Criminal Appeal described the offences as involving "disgusting acts extending, according to the complainant, over a period of about an hour". The victim was in fear of her life. The appellant continued to threaten the victim, before she managed to escape from the appellant. The appellant had no relevant prior record and no record of sexual offending. He had experienced abuse as a child at the hands of his father and stepfather, and was mildly brain damaged at the time of the offence. The appellant was sentenced to 4 years imprisonment with an additional term of 16 months for each of the offences contrary to s 61D, and 6 months imprisonment for the offence contrary to s 61E, each sentence to be served concurrently. On appeal against the severity of the sentence, Sully J (with Dunford J and Handley JA agreeing) found that the offences were "outrageous breaches of the law" and that the sentences imposed were entirely justified. The appeal against conviction was dismissed. R v Scerri (Court of Criminal Appeal (NSW), 28 June 1994, unrep) The applicant was convicted of eight offences relating to three separate instances of sexual offending on three separate victims. The applicant approached M and made a number of threats to injure him. The applicant took M to a shed on a property and committed an act of fellatio on him (count 1 - s 61D). The applicant continued to threaten M and his family, after which he had anal sexual intercourse with M (count 2 - s 61D). The applicant told M to remain in the shed, which he did for some hours due to fear that the applicant would kill him or members of his family. In a separate incident the applicant tackled L and hit him three or four times on the back of the head with a rock (count 4 - s 61C). The applicant led L into a toilet block in a park and committed oral and anal sexual intercourse on him (counts 5 and 6 - s 61D). The applicant then returned L's wallet to him, from which he had removed $20 (count 7 - steal from person, s 94). Counts 8 and 9 relate to the victim C. The applicant approached him and punched him in the nose several times, breaking his nose (count 8 - s 61B). The applicant then had anal sexual intercourse with C (count 9 - s 61D). The applicant had a disadvantaged upbringing, being sexually abused as a child. A pre-sentence report assessed the applicant as having behavioural problems in urgent need of clinical intervention. The sentencing judge sentenced the applicant to 2 years imprisonment for counts 1, 2, 5 and 6 (contrary to s 61D); 4 years and 6 months imprisonment for the s 61C offence (count 4), 1 year imprisonment for the steal from person offence contrary to s 94 (count 7), 6 years and 6 months imprisonment for the s 61B offence (count 8), and 3 years imprisonment for the s 61D offence the subject of count 9. His Honour partially accumulated the sentences resulting in a total effective sentence of 16 years comprised of a minimum term of 12 years, with an additional term of 4 years. The Court of Criminal Appeal dismissed the appeal against sentence, Carruthers J observing (with Finlay and Badgery-Parker JJ agreeing) that the sentence imposed was "heavy", but well within a legitimate sentencing discretion being proportionate to the objective circumstances of the offending. ********** 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 June 2014