Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Asplund v R (Cth) [2014] NSWCCA 237 Hearing dates: 17.10.2014 Decision date: 29 October 2014 Before: Hoeben CJ at CL at [1] Hidden J at [70] Davies J at [71] Decision: Application for extension of time refused. Catchwords: CRIMINAL LAW - sentence appeal - application for extension of time - doing an act with the intention of influencing a witness and possessing child pornography - applicant already serving a sentence for two serious indictable offences when sentenced for these offences - whether failure to consider alternative to custodial sentence - whether principle of totality properly applied - whether applicant's age should have been taken into account as a mitigating factor - no adequate explanation for delay - interests of justice did not require the granting of an extension of time - adequate consideration given to need to impose a custodial sentence - principle of totality properly observed - applicant's age fully taken into account - application for extension of time refused. Legislation Cited: Crimes Act 1900 - ss 323(a) and 324 Crimes (Sentencing Procedure) Act 1999 - s 44(2) Cases Cited: Abdul v R [2013] NSWCCA 247 Barton v R [2009] NSWCCA 164 Goebel-McGregor v R [2006] NSWCCA 390 Kentwell v R [2014] HCA 37 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v R [1988] HCA 70; 166 CLR 159 Muldrock v R [2011] HCA 39; 224 CLR 120 Pearce v R [1998] HCA 57; 194 CLR 610 R v Asplund [2010] NSWCCA 316 R v Jarrold [2010] NSWCCA 69 R v Young [1999] NSWCCA 275 R v XX [2009] NSWCCA 115; 195 A Crim R 38 R v Zamagias [2002] NSWCCA 17 Category: Principal judgment Parties: Kenneth Asplund - Applicant Regina (Cth) - Respondent Crown Representation: Counsel: Mr R Sweet - Applicant Mr P McGuire - Respondent Crown Solicitors: Malcolm Carr - Applicant Commonwealth Director of Public Prosecutions - Respondent Crown File Number(s): 2008/196684 Decision under appeal Date of Decision: 2012-04-13 00:00:00 Before: Hock DCJ File Number(s): 2008/196684 Judgment 1HOEBEN CJ at CL: Offences and sentence On 19 January 2011 the applicant pleaded guilty in the NSW District Court to the following offences: Count 1 - Doing an act with the intention of influencing a person to be called as a witness to give a false statement intending to procure his own acquittal of a serious indictable offence, contrary to s323(a) and 324 of the Crimes Act 1900 (NSW) (the "influencing a witness offence"). Count 2 - Possessing child pornography contrary to s91H(3) of the Crimes Act 1900 (NSW) (the "child pornography offence"). 2The conduct relevant to the influencing a witness offence occurred between 20 February 2008 and 20 November 2009. The conduct relevant to the child pornography offence occurred between 1 February 2008 and 21 February 2008. The maximum penalty for the influencing a witness offence is 14 years imprisonment. The maximum penalty for the child pornography offence is 5 years imprisonment. 3On 13 April 2012 the applicant was sentenced as follows: Count 2 - The child pornography offence, imprisonment for a fixed term of 9 months commencing 19 September 2013 and expiring 18 June 2014. Count 1 - The influencing a witness offence, imprisonment for 4 years commencing 19 June 2014 and expiring 18 June 2018 with a non-parole period of 1 year and 6 months expiring 18 December 2015. 4At the time the sentences were handed down, the applicant was already serving sentences of imprisonment for two serious indictable offences, contrary to s474.27(1) of the Criminal Code 1995 (Cth) namely using a carriage service to transmit a communication which included indecent material to a person who was under the age of 16 with the intention of making it easier to procure that person to engage in, or submit to sexual activity with himself (the child grooming offences). As a result of a Crown appeal (R v Asplund [2010] NSWCCA 316) those sentences were: imprisonment for 3 years commencing 19 March 2010 and expiring 18 March 2013 (in respect of Count 1, which related to grooming over the internet) and imprisonment for 4 years commencing 19 March 2013 and expiring 18 March 2017 (in respect of Count 2, which related to grooming over a mobile telephone service). In relation to both child grooming offences, a non-parole period of 4 years was fixed, commencing 19 March 2010 and expiring 18 March 2014. 5The applicant seeks an extension of time within which to seek leave to appeal against the sentences imposed by Judge Hock on 13 April 2012. The grounds of appeal are as follows: Ground 1 - That her Honour erred when sentencing the appellant on Count 2, in failing to proceed to the second step, referred to by this Honourable Court in R v Zamagias [2002] NSWCCA 17. Ground 2 - That her Honour erred in failing to consider the second limb of the principle of totality, namely to review the aggregate sentence on Counts 1 and 2 and consequently failed to consider whether the aggregate sentence was just and appropriate. Ground 3 - That her Honour erred in that, having recited the appellant's age and having made no reference to his date of birth, she failed to consider the appellant's age as a factor in mitigation and, in particular, failed to consider whether or not mercy should be afforded to the appellant by reason of his advanced age and/or that each additional year of sentence represented a substantial proportion of the period of life left to the appellant and/or the rigour of imprisonment for a person of the age of the appellant. Factual background 6In order to understand the grounds of appeal, it is necessary to set out the facts in respect of the child grooming offences, as well as the facts concerning the offences, the subject of this application. 7The applicant and CF had met in a public chat room on a website known as the "Friendship Page" on 29 October 2006. They were known to each other by their online user names. The next day the applicant and CF engaged in a private chat where they exchanged mobile telephone numbers. The applicant stated at the time that he was 28 years of age, when he was in fact 61 years old, and CF stated that she was 14 years old when in fact she was 13 years of age. 8Over the period of 28 October 2006 to 1 January 2007 the applicant communicated frequently with CF by mobile telephone and via the internet including seven online chats and hundreds of telephone calls and text messages to CF's mobile telephone. The communications were sexual in nature, including discussions about CF's sexual experience, whether she would meet him for sexual activity and the transmission of a photograph of the offender's penis on CF's mobile phone. 9At various times throughout the communications, the applicant commented on CF's age. He commented favourably on photographs she had sent him via her mobile phone. In his communications with her, the following issues were raised: (a)She was 14; (b) CF told him of her sexual inexperience; (c) He initiated topics of conversation of an explicit and sexual nature; (d) He sent CF a photograph of his erect penis by his mobile phone; (e) He encouraged CF to send explicit photographs of herself; (f) He initiated topics of conversation concerning CF meeting him; (g) He initiated topics of conversations concerning what he intended to do with CF when she met him and (h) He expressed his love for her and on one occasion, told her he wanted to marry her. 10The applicant made cash deposits into CF's bank account throughout the grooming offence period. The total amount deposited into CF's account by the applicant was $2,500. 11On 19 March 2010 the applicant was convicted of the grooming offences and sentenced to a total term of imprisonment of 3 years and 6 months, with a non-parole period of 1 year and 9 months. On 16 December 2010, following a Crown appeal, the Court of Criminal Appeal re-sentenced the applicant to a total term of imprisonment of 7 years with a non-parole period of 4 years. The non-parole period was to expire on 18 March 2014. 12On 20 February 2008 as a result of the execution of a search warrant in the child grooming matters, the applicant's computer was seized. During a record of interview with the police on 20 February 2008 the applicant denied that he had sent a photograph of a penis to CF and denied that he intended to groom CF. Upon forensic examination of the computer hard-drive, police located child pornography material. On 5 August 2008 the applicant was charged with one count of possess child pornography (which is count 2 in these proceedings). 13The applicant lived with his son, Adam. The applicant and Adam's mother were divorced in 2006. Soon after the applicant was charged, he asked Adam to help him by writing a statement so that he could stay out of gaol. Adam was 17 at the time. The applicant told Adam the key points to include in the statement and asked him to write the statement in his own words incorporating those key points. After Adam wrote a draft, he showed it to the applicant who told him what changes to make. Adam then wrote a final version incorporating the applicant's changes. 14In this 5 page handwritten statement Adam said: (2)His father was a nice person. (3)He knew all about the Friends Page. (4)He hacked into his father's email, MSN and the Friends Page. (5)He chatted to people on the Friendship Page like "Dark Mystical" and "Aussie Girl" (which was the user name of CF). (6)One night when his father went out to the club and during a party with his friends, he started messaging a girl on his father's mobile phone that his father had left behind. (7)He then got a picture of a penis from the computer and sent it to her with a message like "Is this big enough?" (8)He got bored with it after a while and continued to drink with his friends. (9)He got a program called "Live Wire" which he used to download pornography; and (10)He would hide the pornography on his father's computer so that his father could not find it. 15Adam signed the first statement and handed it to the applicant who told him he was going to give it to his solicitor. Some time after Adam wrote the first statement in early 2009, the applicant asked him to write another version of the statement because he had changed solicitors. The applicant again told him the key points to include in the statement and asked Adam to write the statement in his own words. The applicant reviewed the draft before Adam wrote a final statement which he signed. The contents of that second statement were exculpatory of the applicant. 16At the time he was asked to write the first and second statements, Adam: (a)had never been to any chat rooms called the Friendship Page. (b)did not know any passwords used by his father on the internet. (c)did not know anyone known as "Dark Mystical" or "Aussie Girl". (d)had never used his father's profile "Homie". (e)had never used his father's phone to send a message of a penis. (f)did not know about any text "Is this big enough" or "will this do" and; finally (g)had never used "Live Wire" to download child pornography. 17Adam asked the applicant why he had to write the statements and the applicant told him that he "needed to do this to help him stay out of gaol" and that everything would be fine because at the time the offences occurred, Adam was only 16 and would be treated as a minor. The applicant told Adam that if he did not agree to provide the statements, he might go to gaol and they would lose their house. 18The applicant also asked Adam to find two friends to back up the story and get him out of trouble by writing a statement or attending a police interview. The applicant told Adam to tell his friends to say that they were at the party and that they knew that the picture of the penis was sent by Adam. The applicant said that he would give Adam some money as payment for signing the false statement but he did not mention any particular figure and no money was ever paid. At the applicant's request, Adam approached his two best friends, MH and CB, and asked them to help because there was a possibility that his father might go to gaol. 19After Adam wrote the second statement, the NSW Police contacted him and requested him to participate in an electronically recorded interview. Before Adam gave evidence to police, the applicant instructed him to make it clear that he (Adam) was the person who sent the picture of the penis and that it was he who downloaded the child pornography. The applicant also gave Adam the user names of the people he was to say he was talking to online. 20On 27 March 2009 Adam attended Parramatta Police Station and participated in an electronic interview, which lasted one and a half hours. In that interview, Adam gave a version of events consistent with the first and second statements. He provided the names of his two friends, MH and CB, who were supposedly at the party when the transmission of the photo took place. Subsequently, the two friends provided statements to the police with a similar false version of events. 21In early July 2009 subpoenas were issued regarded the child grooming trial that was to commence in August 2009. When Adam received his subpoena he became worried and had a conversation with the applicant about it. The applicant told him not to worry and that everything would be fine. On another occasion, in the presence of one of his friends, Adam told the applicant that he did not want to do it anymore, that he was scared and worried and that he did not want his friends to get into trouble for something that the applicant did. The applicant told Adam "Don't worry about it, it will be fine, you're a minor, everything is going to be good. If anything ever goes wrong, I'll just take the blame anyway". 22Towards the end of July, Adam contacted NSW Police and requested to speak about the versions he and his friends had previously given. On 29 July 2009 Adam participated in a second electronically recorded interview. In that interview, he retracted his original version contained in the first and second statements and in the first interview and informed the police that the version was fabricated. Throughout the interview, Adam was visibly distressed and broke down in tears. Adam provided a formal statement after the interview, retracting his original version. Subsequently his two friends provided statements to police retracting their original statements. 23Adam gave evidence for the Crown during the grooming trial. His evidence was that the contents of his first and second statements were untrue and that he gave false answers to the police in his first interview. Adam was cross-examined by the applicant's counsel at the grooming trial, both on the voire dire and before the jury, during which it was put to him that the version of events contained in his first and second statements and the first interview with the police was true and he was cross-examined in detail as to the contents of those statements and that interview. 24On 20 November 2009 the applicant was found guilty at the end of the trial of one count of use an internet carriage to groom CF (a minor), and one count of use of a mobile telephone carriage service to groom CF. 25Initially the applicant pleaded not guilty to the two charges, the subject of this application. The influencing witness trial commenced in the Sydney District Court on 25 August 2010. Adam gave evidence in that trial and was cross-examined by the applicant's counsel, during which it was again put to him that the version of events contained in his first and second statements and the first interview with police was true and that he was giving false evidence in the trial to protect a friend and because he had discovered that the applicant was not his biological father. 26On the fifth day of trial, after Adam had completed his evidence, the jury was discharged. Subsequently, the prosecution consented to the influencing witness charge and the child pornography charge being heard together at the request of the applicant's counsel. The matters were relisted for trial on 17 January 2011. Pleas of guilty were entered on 19 January 2011. 27The second count in these proceedings, was based on the police examination of the computer seized during the execution of the search warrant on 20 February 2008 in the course of the police investigation of the grooming offence. Of the 58 movie files on the computer, 7 contained child pornography material. 28Four of those files were Category 4 on the Oliver scale. The scale is from 1 to 5, 5 being the worst category. Category 4 depicts penetrative sexual activity between a child or children and an adult or adults. The remaining 3 were Category 3, namely non-penetrative sexual activity between children and adults. In order to understand the seriousness of the offences, it is necessary to provide an example of each category so as to put the offences in context. 29One of the Category 4 videos depicted two girls aged about 3 to 4 years old of South American appearance in a bath masturbating an adult penis. One female child then performed oral sex on the male's penis. A vibrator was then placed on the exterior of the vagina of one of the girls. An erect adult penis was shown being rubbed and penetrating the anus and vagina of one of the girls. This file was 4 minutes and 39 seconds in length. 30An example of Category 3 was two girls aged 13 and 6 kissing and masturbating an adult erect penis while the adult male touched one girl on the breast. This file was 41 seconds in length. 31Those two examples were the worst in each category. There were 9 children in total depicted in the movie files. The sentence proceedings 32Having reviewed the facts, her Honour turned to the objective seriousness of the offending. She said, in relation to the child pornography offence: "Serious though this offence is and a custodial sentence must be imposed, in terms of the number of images, their category and the number of children involved and the short period of time the offender was engaged in this offence, it falls towards the lower end of the range of objective gravity." (ROS 9.7) 33In relation to the objective seriousness of the influence witness offence, her Honour said: "The influence witness offence is clearly the more serious. The offender's son was extremely upset during the recording in which he retracted his earlier false statement. Then, as I have related, he was extensively cross-examined during the trial in which the jury was discharged without verdict. The offender's actions were a breach of the trust that Adam had and was entitled to have in his father. The authorities make clear that such an offence strikes at the heart of the criminal justice system." (ROS 9.8) 34Her Honour summarised the applicant's subjective features. He was aged 63 when he was imprisoned for the first time for the child grooming offences. He was trained as a fitter and had been in full employment until he was imprisoned. She accepted that the precipitating factor for the offences was the breakdown of his 20 year relationship with his wife. This in turn led to him becoming lonely and depressed. 35Two psychiatrists, Dr Donald Rowe and Dr Greenberg, provided reports to the effect that he was suffering from a major depressive disorder and an adjustment disorder with a depressed mood. The reports assessed the applicant at a low presumptive risk level, relative to other adult sex offenders. He was motivated to attend a suitable sex offenders program. Her Honour accepted that he was genuinely remorseful and that he had some insight into the seriousness of his behaviour. 36Her Honour took into account the results of the Crown appeal in respect of the child grooming offences. She noted that on 18 March 2014, which was the date on which the non-parole period as adjusted by the Court of Criminal Appeal would expire, the applicant would be 69 years of age. 37In relation to totality, her Honour said: "While clearly these are separate offences from those in respect of which the offender was found guilty by a jury, they are very much part and parcel of the one episode. The principle of totality requires that the overall sentence to be imposed reflects all his criminality. The sentence for count 2 will be partially cumulative on the existing non-parole period and will commence on 19 September 2013 and the sentence for count 1 will be totally cumulative on the first." (ROS 11.9) 38Her Honour made appropriate discounts for the somewhat late pleas of guilty and no challenge has been made to those discounts. In relation to special circumstances, her Honour said: "I find special circumstances because of the accumulation of the sentences and because the offender is likely to require a longer period of assistance reintegrating into the community at his age after an inevitably lengthy sentence. The non-parole period to be fixed represents the minimum period that the offender should spend in prison having regard to all the elements of punishment including the objective seriousness of the offences, specific and general deterrence, denunciation and his subjective circumstances." (ROS 12.7) Application for an extension of time 39The applicant was sentenced on 13 April 2012. The application for an extension of time was not filed until 6 March 2014. The applicant filed the notice seeking leave to appeal against sentence on 7 March 2014. In support of the application for an extension of time was an affidavit from the applicant's solicitor, sworn 1 April 2014. 40The only explanation for the delay provided by the affidavit is that after having been convicted of the child grooming offences, the applicant was in custody in Junee and that communication with him was difficult. The nature of the difficulty was not explained. 41The affidavit asserted that the only funding available for an appeal was through Legal Aid. Legal Aid was granted on 5 September 2013. A merit advice was received on 15 January 2014, after having been with counsel for 4 months. There was then a delay of 2 months before instructions were received from the applicant to proceed with the appeal. 42The Crown complained that there was no proper explanation for the delay between the handing down of sentence and the application for an extension of time and for leave to appeal against sentence. I agree. That, however, does not end the matter. The question of when and in what circumstances an extension of time should be granted was recently considered by the High Court in Kentwell v R [2014] HCA 37. There the plurality (French CJ, Hayne, Bell and Keane JJ) disapproved the test applied in Abdul v R [2013] NSWCCA 247 at [46] - [49]. The test which the High Court approved was that in R v Young [1999] NSWCCA 275 at [35] where the Court of Criminal Appeal refrained from formulating any guideline for the exercise of the Court's discretion and held that an application for an extension of time was to be determined by asking whether "It is just under the circumstances that such an order should be made". 43The plurality in Kentwell said: "30 ... The wide discretion conferred on the Court of Criminal Appeal under the Act and Rules is to be exercised by consideration of what the interests of justice require in the particular case. Abdul was wrongly decided. It was an error to introduce in applications for an extension of time based on asserted "Muldrock error" consideration of whether refusal of the application would occasion substantial injustice." 44In any event, the practical consequences are the same. As was done in Abdul and Kentwell, it is necessary for this Court to consider the merits of the grounds of appeal in order to decide whether it is just under the circumstances that an order for an extension of time should be made. Following that approach, it is necessary to consider the grounds of appeal. Ground 1 - That her Honour erred when sentencing the appellant on Count 2, in failing to proceed to the second step, referred to by this Honourable Court in R v Zamagias [2002] NSWCCA 17. 45The applicant submitted that based on the decision of R v Zamagias, a court was required to take a number of steps before finally determining the appropriate sentence. He submitted that these steps involved a preliminary question which was whether there was any alternative to the imposition of a term of imprisonment and in the event that the court determined that no other penalty was appropriate, the court must next determine what the term of sentence should be and finally, how that term of imprisonment should be served. 46The applicant accepted that her Honour had carried out the preliminary step and had determined the length of the sentence. He submitted that her Honour had not taken the final step of determining how the sentence was to be served, e.g. by way of suspending the sentence or an intensive correction order, or fulltime custody. 47In making that submission, the applicant accepted that if the ground of appeal was made out, it did not amount to an error such as would require re-sentence, but that "the failure to record that the two step approach had been taken would lead the Court of Criminal Appeal to "examine carefully" the findings to determine "whether the sentence was erroneous". Consideration 48This ground of appeal is misconceived. The analysis by Howie J in Zamagias set out a common sense mode of reasoning to be followed by a sentencing judge. The benefit of following such a mode of reasoning was that it brought transparency to the process of sentencing. What Zamagias does not do is to lay down some rule or inflexible practice whereby sentencing judges must set out their reasoning process in the way suggested. To so hold would be contrary to the instinctive synthesis approach to sentencing described in Markarian v The Queen [2005] HCA 25; 228 CLR 357 and approved in Muldrock v R [2011] HCA 39; 224 CLR 120. 49Her Honour's summation of the objective seriousness of count 2 was brief but accurate. The sentence which she imposed of 9 months, of which 6 months was concurrent with the existing non-parole period imposed by this Court was if anything, generous to the applicant. 50This ground of appeal has not been made out. Ground 2 - That her Honour erred in failing to consider the second limb of the principle of totality, namely to review the aggregate sentence on Counts 1 and 2 and consequently failed to consider whether the aggregate sentence was just and appropriate. 51The applicant submitted that in accordance with Mill v R [1988] HCA 70; 166 CLR 159 the "total or aggregate sentence" imposed on an offender must be "just and appropriate". He submitted that this principle had been breached. He submitted that the totality principle had two limbs, being: (a)That the total effective sentence imposed on an offender, who has committed multiple offences, must bear a proper relationship to the overall criminality involved in all of the offences including those in respect of which the offender is still serving or is yet to serve a sentence of imprisonment. (b)The total effective sentence imposed on an offender should not constitute a "crushing sentence" so as to "destroy any reasonable expectation of useful life after release from custody". 52He submitted that her Honour erred in this case by not considering the "second limb" of the totality principle and not expressly considering whether the additional sentences imposed by her would constitute a "crushing" sentence insofar as the applicant was concerned. 53The applicant submitted that while the sentences imposed by her Honour looked at in isolation, did not give rise to error, when taken in combination with the sentence imposed by the Court of Criminal Appeal for the child grooming offences, the total effect of the sentences revealed error. 54The applicant submitted that the error in the approach of her Honour was that identified in Pearce v R [1998] HCA 57; 194 CLR 610 at 45 where McHugh, Hayne and Callinan JJ said: "45 To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 55In oral submissions, the applicant made an additional point. He submitted that because the Court of Criminal Appeal had taken into account, as part of the background to the grooming offences, that the applicant had sought to influence his son to give false evidence, there was an element of double counting when her Honour imposed sentence for count 1. Consideration 56This ground is not made out. 57Her Honour was well aware of the connecting features between the grooming offences and the offences which were before her. That is why a considerable part of the judgment set out the factual background so as to place the offences before her in their proper context. What that recital of facts made clear was that despite the factual linkage, the offences before her were entirely separate, both as to time and content, from the child grooming offences. 58The child grooming offences took place between 28 October 2006 and 1 January 2007 and involved the conduct which has been described. It ceased on 1 January 2007 when the mother of the child told the applicant to cease contacting her daughter. The applicant's conduct in committing the child pornography offence occurred between 1 February 2008 and 21 February 2008, more than a year after the child grooming offences had been committed. The applicant's conduct in the influence a witness offence occurred between 20 February 2008 and 20 November 2009, after the last of the child pornography files had been downloaded and more than a year after the child grooming offences had been committed. 59The criminality in the child grooming offences, the child pornography offence and the influencing a witness offence was quite different. There was no overlap in the offending conduct. The only overlap was the apparent cause of the criminal conduct, i.e. the applicant's reaction to the breakdown of his marriage. 60As was pointed out by Howie J (with whom McClellan CJ at CL and Harrison J agreed) in R v Jarrold [2010] NSWCCA 69 at [56] a sentence should not be concurrent "simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct ... The question to be asked is, can the sentence for one offence encompass the criminality of all the offences?" In this case not only could it not be said that the offences involved one course of criminal conduct but the sentence for the child grooming offences certainly could not encompass the criminality of the offences before her Honour. 61In R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [5] Hall J (with whom Tobias JA and Kirby J agreed) included the following in the totality propositions which he derived: "52 There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina (2007) 168 A Crim R 41 per Howie J at 47. However, a number of propositions relevant to the consideration of that issue may be derived from the case law. They include the following: (1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing. ... (5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at [27]. (6) If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cayhadi (supra) per Howie J at [27]. (7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence." 62As the applicant recognised, the influencing a witness offence struck at the very heart of the criminal justice system. In this case, there was an added dimension of seriousness because of the traumatic effect which the offence had on Adam and the breach of trust on the part of the applicant which this involved. 63Her Honour specifically referred to the principle of totality in her sentence judgment and did so immediately following her description of the sentence imposed for the grooming offences (see [37] hereof). She clearly took the principle into account and it was not necessary for her to make any reference to whether or not the sentences were likely to be "crushing". The length of the sentences imposed made it clear that not only was her Honour aware of the principle of totality but she applied it. 64Insofar as the question of double counting is said to arise, a proper reading of the Court of Criminal Appeal decision in Asplund v R makes it clear that nothing of that kind occurred. On the contrary, the Court of Criminal Appeal imposed sentences only for the matters which were before it as did her Honour. Ground 3 - That her Honour erred in that, having recited the appellant's age and having made no reference to his date of birth, she failed to consider the appellant's age as a factor in mitigation and, in particular, failed to consider whether or not mercy should be afforded to the appellant by reason of his advanced age and/or that each additional year of sentence represented a substantial proportion of the period of life left to the appellant and/or the rigour of imprisonment for a person of the age of the appellant. 65The applicant submitted that having been born in November 1944, and not being eligible for parole until 18 December 2015 as a result of her Honour's sentences, he would be aged 71 at that time. He submitted that at such an age, any reasonable expectation of a useful life after release would have been largely destroyed. He submitted that this was a matter which was important and to which her Honour should have specifically referred and taken into account as a mitigating factor. Consideration 66This ground of appeal is based on an incorrect understanding of the facts. When considering special circumstances, her Honour specifically referred to the applicant's age (see [38] hereof) as a reason for making that finding in the applicant's favour. She gave effect to that finding of special circumstances by reducing the ratio between the non-parole period and the head sentence from the 75 percent prescribed by s44(2) Crimes (Sentencing Procedure) Act 1999 to 37.5 percent. 67Moreover, there was no specific evidence before her Honour as to any frailty on the part of the applicant due to health or age considerations. To the extent that there was evidence before her Honour, it was to the contrary. In any event, the authorities are clear that a sentencing judge cannot otherwise reduce an appropriate term of imprisonment, simply on the basis that it is likely to extend to most of the offender's remaining life expectancy (Goebel-McGregor v R [2006] NSWCCA 390 at [128] per James J (with whom Hidden and Hislop JJ agreed); Barton v R [2009] NSWCCA 164. 68This ground of appeal has not been made out. 69For the reasons set out, the grounds of appeal relied upon have no prospects of success and should be dismissed. In those circumstances, applying the test in Kentwell, it is not just for an extension of time to be granted. I would refuse to extend time. Accordingly, the order which I propose is that the application for extension of time be refused. 70HIDDEN J: I agree with Hoeben CJ at CL. 71DAVIES J: I agree with Hoeben CJ at CL. ********** Amendments 03 November 2014 - Typographical error Amended paragraphs: [45] 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 November 2014