Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sharma v R [2017] NSWCCA 85 Hearing dates: 31 March 2017 Decision date: 03 May 2017 Before: Beazley P at [1]; Walton J at [2]; R A Hulme J at [3] Decision: 1. Grant leave to appeal and allow the appeal against sentence. 2. Quash the sentence imposed in the District Court on 22 April 2016. 3. Sentence the applicant to an aggregate term of imprisonment for 7 years 4 months with a non-parole period of 5 years. The sentence will date from 24 July 2015. The non-parole period will expire on 23 July 2020 whereupon the applicant will become eligible for release on parole. Catchwords: CRIMINAL LAW – appeal against sentence – two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 – whether sentencing judge erred in assessing objective seriousness – where assessment was vague but not erroneous – limited significance of assault's relatively short duration – no error in failing to mention absent aggravating factors – error established as sentencing judge referred to the applicant offending whilst on conditional liberty in assessment of objective seriousness – consideration of submissions on manifest excess for re-exercise of sentencing discretion – appeal allowed Legislation Cited: Crimes Act 1900 (NSW) ss 61I, 578A Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 9, 44(2B) Criminal Appeal Act 1912 (NSW) s 6(3) Cases Cited: Aldous v R [2012] NSWCCA 153; 227 A Crim R 184 Boney v R [2015] NSWCCA 291 Cowling v R [2015] NSWCCA 213 House v The King [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 McCabe v R [2016] NSWCCA 7 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Daley [2010] NSWCCA 223 R v Gavel [2014] NSWCCA 56 R v Koloamatangi [2011] NSWCCA 288 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 The Queen v De Simoni [1981] HCA 31; 147 CLR 383 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Amit Sharma (Applicant) Regina (Respondent) Representation: Counsel: Ms H Cox (Applicant) Mr S Hughes (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2014/86931 Decision under appeal Court or tribunal: District Court Date of Decision: 22 April 2016 Before: Huggett DCJ File Number(s): 2014/86931 Judgment 1. BEAZLEY P: I agree with R A Hulme J. 2. WALTON J: I agree with the orders proposed by R A Hulme J for the reasons given by his Honour. 3. R A HULME J: Amit Sharma ("the applicant") was sentenced by her Honour Judge Huggett in the District Court at Sydney on 22 April 2016 to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years 6 months. The sentence was specified to commence on 24 July 2015. 4. The sentence was imposed in respect of four offences (counts 2, 3, 5 and 6 on the indictment) with one further offence listed on a Form 1 document taken into account in relation to count 5. Each offence was contrary to provisions of the Crimes Act 1900 (NSW). 5. The details of the offences, the maximum penalties ("max") and the indicative sentences (derived after a 10 per cent discount for the applicant's late pleas of guilty) are set out in the following table. In relation to counts 5 and 6 the standard non-parole period ("SNPP") is prescribed by Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Count Offence Indicative sentence 2 Assault occasioning actual bodily harm - s 59(1) – max 5 years 8 months 3 Indecent assault - s 61L – max 5 years 20 months 5 Sexual intercourse without consent - s 61I – max 14 years – SNPP 7 years 6 years 6 months NPP 4 years 6 months 6 Sexual intercourse without consent - s 61I – max 14 years – SNPP 7 years 6 years 6 months NPP 4 years 6 months Form 1 (Count 5) Indecent assault - s 61L N/A 1. The applicant was also sentenced on the revocation of a previously imposed good behaviour bond. The judge imposed a term of imprisonment for 3 months dating from 24 July 2015. It was totally subsumed by the aggregate sentence, a course her Honour chose because the breach of the bond was taken into account as an aggravating circumstance. 2. The applicant seeks leave to appeal on the following grounds: 1 Her Honour erred in finding that the two offences contrary to s 61I Crimes Act 1900 of sexual intercourse without consent were "serious offences of their type". 2 Her Honour failed to make a proper assessment of the objective seriousness [of the two offences] contrary to s 61I Crimes Act 1900. 3 The aggregate sentence imposed upon the applicant was manifestly excessive. Facts 1. Given the nature of the offences the complainants cannot be identified (s 578A of the Crimes Act). Counts 2 and 3 concerned a complainant who I will refer to by the pseudonym "Jane". Counts 5 and 6 and the offence on the Form 1 concerned another complainant, "Alice". 2. The facts concerning the offences were agreed by the parties. I summarise as follows. Counts 2 and 3 concerning Jane 1. The applicant lived in a two-bedroom apartment in Alexandria. He occupied one of the bedrooms and the other was occupied by two female English tourists. 2. Jane was a 29-year old American tourist who arrived in Australia on 13 March 2014. She had previously posted her profile on a website set up to connect tourists with locals who are prepared to accommodate them in their homes, generally by sleeping on a couch ("the website"). The applicant responded to Jane's post and some email communication ensued. The applicant gave Jane his telephone number. 3. Jane planned to stay in Sydney for two weeks before travelling to Brisbane. She planned to stay with a friend in St Peters during the first week and at the applicant's home during the second week. She made contact by text message with the applicant the day after her arrival. There were subsequent communications which resulted in them going out together on the evening of the following day. They went to a number of bars where alcohol was consumed. The applicant became intoxicated to the extent that Jane had to help him to stand. She had planned to return to her friend's place but he persuaded her to come back to his place. 4. More alcohol was consumed at the applicant's apartment. Jane became tired and wanted to go home. The applicant implored her a number of times to come into his bedroom but she repeatedly declined. She said she would stay on the couch which was the arrangement for when she was to stay at his place the following week. 5. The applicant kissed Jane and she responded for a short time before stopping and telling him to go to bed. He again asked her to come to his bedroom but she told him that things between them were not going any further. He said, "Yeah, we are just friends but I can kiss you and touch your tits if I want to". She repeated her rejection. Eventually he went to bed and she fell asleep on the couch. 6. Sometime later while she was asleep, Jane felt the applicant beside her. He put his arm over her and they both fell asleep. Not long after, she awoke to find him on top of her trying to kiss her. She was fully clothed but he was naked from the waist down and had an erection. She did not respond to his kissing and was moving her head to avoid him, saying, "No, please get off me". 7. Jane was unable to get up because the applicant was kneeling on her biceps (causing bruising) as she was lying on her back. He was pinning her hands above her head. She protested, asked to be left alone, and told him to get off her. The applicant responded to Jane's protests by repeatedly saying "Ssshhh". At one point he let go of her hands and began grabbing her breasts. She struggled but was unable to move away. He grabbed one of her hands and tried to move it towards his penis but she said, "No, I don't want to, please stop, please leave me alone". 8. Eventually Jane was able to knee the applicant, causing him to fall back on the couch. She then grabbed her phone and began running around the unit trying to find the door. She was disoriented and was repeatedly saying that she needed to get out of there and go home and "this is not okay". When she eventually found the door and had it partly open the applicant grabbed her right arm forcefully and tried to pull her back into the unit towards the couch. She managed to maintain her grip on the door, saying "this is not okay, I need to go home". She begged him to leave her alone. She broke free of his grip and fled from the apartment, shaking and scared. 9. The applicant sent Jane a text message the following morning asking what happened and she replied. The effect of the applicant's responses was that he professed no memory of his behaviour and he was sorry. He asked her to "forget about it" (and he said in his evidence before the sentencing judge that he said this because he did not want her to go to the police (POS 12.8)). He asked to meet her in order to apologise but she declined. She did not respond to his subsequent attempts to call her. 10. Jane's friend asked if she wanted to report the matter to police but she said she just wanted to forget about it. However, in a subsequent telephone conversation with her sister she was encouraged to report the matter in case it happened to someone else. Accordingly, on 20 March Jane reported the incident to the website and on 21 March she reported it to the police. Counts 5 and 6 and the Form 1 offence concerning Alice 1. Alice was a 29-year old tourist from Canada who arrived in Sydney on 19 March 2014 (three days after the incident with Jane). She booked into a hostel in the city and, on the recommendation of a friend, she posted her profile on the website. That evening she received a response from the applicant and they exchanged telephone numbers. She suggested that they meet before she agreed to stay at his apartment. That evening they met in the city and went to a hotel. 2. They went to various places and at some stage Alice agreed to stay the night at the applicant's apartment. They watched a movie in the applicant's bedroom, using headphones so as not to disturb the tourists staying in the other bedroom. When it finished the applicant persistently tried to convince her to stay with him but she left and went out to the couch where she slept. 3. The next day (20 March) the applicant took her to various beaches and that evening they went to a nightclub until 3.00 am. When they returned to his apartment he again tried to persuade her to stay with him in his bedroom but she refused. At 5.06am the applicant sent Alice a text message saying she should find somewhere else to stay from tomorrow. Soon after that he came out of his bedroom to the couch and eventually persuaded her to join him in his bed. This was after she had said that she had a boyfriend and was not going to do anything with him. Once in his bed he put his arm around her and was touching her arm. She fell asleep. 4. Sometime later she became aware of the applicant touching her and kissing her breasts. She was dazed and thought it was her boyfriend. (This is the indecent assault offence taken into account.) 5. Alice then felt a hand moving down her stomach and inside her leggings. She next recalled her vagina being licked in a hurried manner. She awoke and looked down to see the applicant's head between her legs. She said, "stop" and tried to push his head away but could not. He proceeded to lick inside and outside her vagina, notwithstanding her repeated demands to "stop". (Count 5) 6. The applicant desisted from that activity but then pulled Alice's singlet top down over her body and legs, causing her to be completely naked. He recommenced licking her vagina and then inserted his finger about five or six times while she was saying, "No, no". (Count 6) 7. The applicant was kissing Alice's stomach and breasts as she was trying to push his head away. He also tried to kiss her on the mouth. She could feel that his penis was erect. At one point he shifted his body weight which enabled her to move from underneath him but not quite get completely free. She curled up in a ball and he got off her. She put her clothes back on and went to the bathroom and showered before leaving the apartment. 8. Alice spent the next day walking to Coogee and Bondi Beach. She later called the applicant to arrange to collect her possessions. She met him in the city where he was playing pool with a friend. The three returned to the unit so that she could retrieve her things. 9. That evening the police attended the applicant's home to execute a crime scene warrant in relation to the complaint by Jane. They asked the two female tourists and Alice whether the applicant had made any advances towards them. Alice broke down in tears and began shaking. She replied, "Yes, yes he has, he raped me this morning, I didn't know what to do". Assessment of objective gravity of the offences 1. The learned judge's discussion of matters relevant to her assessment of the objective gravity was quite detailed. After noting features of the offence of indecent assault in Count 3 concerning Jane she said, "There can be no doubt that Count 3 is a very serious offence of its type". The offence in count 2 of assault occasioning actual bodily harm was "undeniably serious", more because of the circumstances in which it occurred than the seriousness of the bodily harm. 2. Her Honour discussed various matters relevant to Counts 5 and 6 before announcing that, "All things considered I am of the view that counts 5 and 6 are serious offences of their type". The applicant's personal circumstances 1. There is no complaint about the manner in which the sentencing judge had regard to the evidence of the applicant's personal circumstances. The following are drawn from the judgment. 2. The applicant was born in India in 1985. He was aged 28 at the time of the offences. He did not have any adverse experiences in his formative years in India aside from having been sexually assaulted at the age of seven by an older male cousin. This was a matter he had forgotten about until he was interviewed by a psychologist prior to sentencing. His family circumstances were favourable and he did well at school. 3. The applicant came to Australia on a student visa at the age of 23. His father passed away a short time later. His mother was left in debt and he tried to assist her financially. He completed a course in hospitality at a college. He had worked in a retail store, as a pizza delivery driver and as a warehouse assistant where he had been promoted to a managerial position. 4. The applicant was married, having met his wife online in 2010. They have no children. She experienced anxiety and depression which caused problems in their marriage. This led the applicant to excessive drinking and gambling and they separated in 2012. They reunited for a time and again separated some months before the offences in March 2014. In the latter period the applicant was described as engaging in party-type behaviour, drinking to excess at clubs and bars, mostly with international tourists. He appeared to have few friends in Australia. 5. Two psychologists assessed the applicant as likely suffering from an adjustment disorder with mixed anxiety and depressed mood at the time of the index offences and a previous indecent assault offence. On the basis of his history of alcohol use in early 2014 he was also assessed as meeting the diagnostic threshold for alcohol use disorder (mild and in remission in a controlled environment). 6. The applicant had a previous conviction for an offence of indecent assault. On 22 May 2013 in the Local Court he entered a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for a period of 12 months. It was an aggravating feature that he was subject to this bond at the time of the index offences. 7. The judge noted the circumstances in which the applicant entered his pleas of guilty. On 10 August 2015 he was arraigned and pleaded not guilty to an indictment containing seven counts, count 2 being an alternative to count 1. A voir dire hearing proceeded in relation to two aspects of evidence the Crown proposed to lead. One concerned the use of tendency reasoning across the counts concerning Jane and Alice but the applicant's objection was rejected. 8. The other objection concerned the Crown's proposal to call two other young women to give tendency evidence. The judge ruled in favour of the applicant in respect of one of them but not the other. This other woman was the victim of the indecent assault for which the applicant was on a bond. Initially the Crown said it was experiencing difficulty locating her. Resolution of a question whether the Crown could adduce her evidence by way of tendering a transcript of her evidence before the Local Court was deferred. 9. A jury was empanelled the following day (11 August). Later that day the Crown indicated that the witness had been located and was willing to give evidence. The proceedings were adjourned to the following day. 10. On 12 August 2015, following negotiations, the applicant was re-arraigned and entered pleas of guilty to the index offences. The plea in respect of count 2 was accepted in full satisfaction of count 1. The offence in count 4 was put on a Form 1 document. No further proceedings were taken in respect of count 7. Findings as to subjective matters 1. The judge said that the applicant's psychological disorder or condition was relevant in reducing his moral culpability such that general deterrence, retribution and denunciation had slightly less weight. However, given that at least by the time of the offences concerning Alice the applicant acted with knowledge of what he was doing and the gravity of it, she said the moderation to the otherwise appropriate sentences would not be great. 2. Specific deterrence was held to be relevant given the offences were committed in breach of a good behaviour bond. That bond was imposed in respect of the applicant's only prior conviction and his limited criminal history was a matter which entitled him to some leniency. 3. Her Honour was satisfied that the applicant was genuinely, albeit belatedly, remorseful. 4. Findings were made that the applicant's risk of re-offending was low and his prospects of rehabilitation were good. In this respect, the judge referred to the revival of the applicant's relationship with his wife; his disavowal of alcohol consumption and "the party life"; and his statements of positive intentions concerning self-improvement, employment and financially supporting his mother and family in India. 5. Special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act were found to warrant a reduction of the proportion of the sentence represented by the non-parole period. Grounds 1 and 2 - errors in assessment of the objective seriousness of the offences of sexual intercourse without consent (counts 5 and 6) 1. The applicant's submissions in respect of these grounds commenced with an acknowledgment that all offences of sexual intercourse without consent are serious. It was submitted that the judge was required to do more than simply state that in this case the offences "were serious offences of their type". 2. The circumstances relevant to an assessment of the objective seriousness of the offences that were identified by the applicant were: a) The initial contact between the applicant and Alice occurred as a result of him attempting to meet people. The judge rejected the Crown's contention that he was a predator seeking women in order to sexually assault them. She accepted that he had an initial belief that Alice might be sexually interested him. b) The initial 36 hours or so of the applicant's contact with Alice involved a friendly social relationship. c) Alice had agreed to sleep in the applicant's bed. d) Although Alice disabused the applicant of the notion that she was sexually interested in him, the period of time in which the applicant went beyond what was consented to was comparatively short. e) The acts of intercourse were of short duration and there was little use of force or coercion. f) There were no threats or pressure before the offences to ensure compliance or afterwards to ensure silence. g) Alice was not obviously terrified or upset afterwards in that she was content to meet the applicant again in order to obtain her possessions. h) Alice made no complaint until specifically asked by police whether the applicant had done anything to her. i) The acts of intercourse comprised cunnilingus (count 5) and digital/vaginal penetration (count 6). There are a number of other forms of intercourse are far more intrusive, humiliating and degrading. 1. It was contended that when all relevant matters were considered, "the facts of the case place the offence[s] at the less serious end of the spectrum for sexual intercourse without consent". A correct assessment would have been that both offences were "below the mid-range and towards the lower end of seriousness for offences contemplated by the section". 2. In oral submissions, counsel for the applicant advanced arguments to the effect that there was error in the sense referred to in House v The King [1936] HCA 40; 55 CLR 499 in that the sentencing judge had failed to take into account a relevant consideration and taken into account an irrelevant consideration. 3. The irrelevant consideration was that in the course of discussing the various matters relevant to the assessment of the objective seriousness of the offences the judge made reference to the fact that the applicant was on a good behaviour bond which was a matter of aggravation. 4. The second House error, a failure to take into account a relevant consideration, was a failure to identify and take into account that the offences involved "a very low level of violence". 5. The third error was said to arise in the following passage of the sentencing remarks: "While each offence would appear to have been of relatively short duration, I am mindful that sexual offending often occurs over a short period of time and placing undue focus on the duration of such offending has the capacity to minimise, if not completely ignore the profound effects such offending can have upon a victim. (See R v Gavel [2014] NSWCCA 56.)" 1. Counsel for the applicant pointed out that R v Gavel [2014] NSWCCA 56 was concerned with sexual offences against a child and sought to distinguish the present case where the victim was an adult. Relatively short duration of offending 1. Dealing with the various points raised in reverse order, when asked why the "relatively short duration" of the offending should differ in its significance depending upon whether the victim was a child or an adult, counsel for the applicant responded, "I don't seek to push that submission to any great extent". (31.3.17 at T8.20) 2. In my view, the proposition is difficult to sustain. In R v Daley [2010] NSWCCA 223 (a case concerned with an adult victim) Price J said (at [48]): "As the respondent has pointed to the short duration of the offence, I propose now to deal with this issue. In R v Hibberd (2009) 194 A Crim R 1 I said at [56] that the duration of the offence was a relevant consideration in the assessment of the seriousness of an offence contrary to s 61I Crimes Act. I wish to make it clear that the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased. The short duration of the present offence neither mitigated nor magnified the objective seriousness of the offence. The degree of violence, the form of forced intercourse and the circumstances of humiliation were all relevant considerations in determining where on the scale of objective seriousness the offence lay: R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) at [10-11] per Mahoney JA." 1. In the impugned passage of the sentencing remarks set out above (at [52]), I see the sentencing judge doing no more than identifying the "relatively short duration" of the offences as being a relevant matter but stating (correctly, with respect) that one must be careful not to make too much of it in the assessment of the objective seriousness because it is not an uncommon feature. As Leeming JA observed in Cowling v R [2015] NSWCCA 213 at [16], citing R v Daley, the short duration of a sexual assault "would not ordinarily be regarded as a factor which reduced its objective seriousness". 2. No error is established in this respect. Very low level of violence 1. There is a significant limitation on taking into account violence in an offence of sexual intercourse without consent contrary to s 61I of the Crimes Act. To take into account that there was intentional or reckless infliction of actual bodily harm, or a threat to inflict such harm by means of an offensive weapon or instrument, would infringe the principle in The Queen v De Simoni [1981] HCA 31; 147 CLR 383 because such aggravating features would render an offender liable to punishment for a more serious offence (that against s 61J): R v Johnson [2005] NSWCCA 186 at [23]. 2. It is true that a threat of inflicting actual bodily harm (not by means of an offensive weapon etc) or physical force short of inflicting such harm could be taken into account as an aggravating factor, however a failure to refer to the absence of an aggravating factor is not erroneous. The requirement to explain the reasons for imposing a sentence do not extend to the need to identify the absence of every factor that might aggravate the seriousness of an offence if present. 3. The judge referred to some matters relevant to sexual offences in an introductory fashion when discussing the objective seriousness of the offences. She specifically mentioned that they included "whether violence or force was used". It may be assumed, therefore, that if she was satisfied that there was "violence or force" she would have mentioned it. It follows from the absence of such mention that she was cognisant of the fact that there was a "very low level of violence". 4. No error is established in relation to this matter either. Error in the assessment of objective seriousness? 1. But for one aspect (to which I shall return) I see no error in the manner in which the judge articulated her assessment of the objective seriousness of the s 61I offences. In the course of her discussion on this topic she mentioned the following: ● It was an element of the offences that there was a lack of consent and that the offender knew this to be the case. (ROS 16) ● The act constituting Count 5 occurred in the face of Alice repeatedly saying "No" and trying to push the offender's head away. (ROS 17) ● The act constituting Count 6 occurred after he had pulled Alice's top down, causing her to be completely naked. He was also kissing her stomach, breasts and mouth as she was trying to push his head away. (ROS 17) ● Both offences occurred in circumstances where Alice had expressly informed the offender that she had a boyfriend and was not interested in sexual contact of any sort with him. (ROS 17) ● The offence in Count 6 was more serious than the offence in Count 5 in that it involved several acts of penetration after the offender had removed Alice's top exposing her breasts, she having by then said "no" many times. However, given Count 5 had the offence on the Form 1 attached, the indicative sentences would be the same. (ROS 17) ● The offender had engendered in Alice (and Jane) a feeling that each would be welcome and safe in his unit which was located in an area unfamiliar to Alice (and Jane). (ROS 18) ● The offender initially had a belief that Alice (and Jane) might have been sexually interested in him. But he was disavowed of that in very clear terms when his advances were resisted. (ROS 18) ● He was on notice at the time of the offences concerning Alice that he had tried to take advantage of Jane and that he had "scared her shitless". Despite this, he sought out another female traveller, drank alcohol with her and forced himself upon her when she had told him, "No". (ROS 18-19) "It is in this way that the offender's behaviour can be described as determined and deliberate and to a limited extent predatory". (ROS 19) ● The offences concerning Alice (and Jane) were of relatively short duration but this should not receive undue focus because that could minimise, if not completely ignore, the profound effects such offending can have upon a victim. (ROS 19) 1. It was after making reference to these matters (and the matter I will mention shortly) that the sentencing judge stated her conclusion that the offences concerning Alice were "serious offences of their type". There is no requirement for a sentencing judge to rank the objective seriousness of the offences on a scale; rather, the requirement is that a judge "identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed": Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]. The High Court merely requires that there be such an assessment of objective seriousness and this is what her Honour did. 2. Whilst her Honour's broad expression is not erroneous, the term "serious offences of their type" is open to the criticism that it is vague or imprecise. It has been held that it is not inappropriate for sentencing judges to make an assessment of objective offending according to a scale of seriousness: Aldous v R [2012] NSWCCA 153; 227 A Crim R 184 at [33] per Davies J (citing R v Koloamatangi [2011] NSWCCA 288 at [18]-[19]; Zreika v R [2012] NSWCCA 44 at [45] and [47]). Whilst greater precision may be desirable, it is not essential. Taking into account offending whilst on conditional liberty 1. In the course of recounting the various factors relevant to the assessment of the objective seriousness of the offences the judge said: "It is a matter of aggravation that at the time of each offence the offender was on a bond to be of good behaviour." (ROS 19.2) 1. Whilst this proposition itself is uncontroversial, its location in the part of the sentencing remarks assessing objective seriousness supports the inference for which the applicant contends, namely that her Honour took this into account in her assessment of the objective seriousness of the offences. Taking into account a matter personal to the offender, such as that the offending occurred while he or she was subject to conditional liberty (e.g. Boney v R [2015] NSWCCA 291 at [18]-[20]) or had a criminal history (e.g. McCabe v R [2016] NSWCCA 7 at [15]-[23]) is erroneous in light of R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [24] per Spigelman CJ and at [81] per Barr and Bell JJ and Muldrock v The Queen at [27]. 2. I accept that this error may well be the result of an inadvertent slip in the order in which matters were addressed in an ex tempore sentencing judgment. If the statement by the sentencing judge had appeared two paragraphs later there could be no complaint. However, on the face of it, error has been established. Resentencing 1. It is unnecessary to deal with Ground 3 (manifest excess) in its terms but there is utility in discussing some of the submissions that were made as they are relevant to the task of re-exercising the sentencing discretion that becomes necessary in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW) and Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42]. 2. The applicant pointed to a number of favourable findings made by the sentencing judge. These are included above under the heading "Findings as to subjective matters". These findings should be maintained. 3. Judicial Commission sentencing statistics were relied upon in support of a submission that the indicative sentences assessed for the s 61I offences were relatively high in this case. This claim does not appear to be supported by the statistics. I note that included amongst the well-known limitations on having regard to sentencing statistics, for this particular offence about half of the offenders in the database had pleaded guilty and it would be fair to assume that a reasonable proportion of them would have received a greater reduction of sentence on account of their pleas than the applicant did. Further, 30 per cent of the offenders had no previous convictions. I note also that when the factor "Priors - same type" is selected (offenders with previous sexual assault offences without having a custodial sentence imposed), although the number of cases in the database is reduced substantially, the picture is somewhat different and the indicative terms assessed in the offender's case do not appear out of the ordinary. 4. A table of cases concerned with sentencing for s 61I offences where the act constituting the intercourse was either digital penetration or cunnilingus was provided by the applicant. It is useful in identifying the range of conduct and other pertinent circumstances that may be encountered, although subjective matters in each case vary, sometimes quite significantly. I have had regard to the cases in this table in a broad sense in reflecting upon the sentence I consider should be imposed in this case. 5. I have had regard to the matters referred to by the primary judge in her assessment of the objective seriousness of the each of the offences (of course with the exception of the applicant being on conditional liberty). I agree with her assessment that they are serious but compared to the range of conduct that may be encountered I agree with the applicant's submission that they are below the middle of the range, but in my view this is not by any substantial margin. 6. The aggravating factor of the offences being committed whilst on a bond to be of good behaviour for offending of the same type is a significant matter. 7. Two affidavits were read in the event that the Court was moved to resentence. The applicant deposed that he was being held in protection but this would appear to be in a form that does not impose any significant restrictions in that he also speaks of engaging in work, exercise, bible study and courses. He also mentions having no misconduct or disciplinary offences whilst in custody. He enjoys the support of his wife and maintains contact with his family in India. Confirmation of most of these matters is found in the documents annexed to the affidavit of the applicant's solicitor. 8. This evidence supports this Court maintaining the findings made by the primary judge as to the applicant's low risk of re-offending and good prospects of rehabilitation. 9. A matter of controversy arose during the hearing of the application, namely that it would be open to this Court in re-exercising the sentencing discretion to form its own view of the amount by which the indicative sentences should be reduced on account of the applicant's very late pleas of guilty and the manner in which the totality principal should be applied in assessing an appropriate aggregate sentence. Counsel for the applicant argued that in the absence of a Crown appeal the Court should not make findings that would be adverse to the applicant in these respects. Leave was granted at counsel for the applicant's request to file further written submissions. Senior counsel was engaged for that purpose. What was received was a lengthy submission mostly directed to the proposition that the Court should not impose a sentence greater than that imposed in the court below. 10. It is uncontroversial that the task for this Court is to re-exercise the sentencing discretion afresh, taking into account the purposes of sentencing and all matters relevant, both objective and personal, to the applicant. The three possible outcomes are that compared to the original aggregate sentence the Court will find that the same, a lesser, or a greater aggregate sentence should be passed. The manner in which it should proceed in each case was clearly described in Kentwell v The Queen at [43]. Nothing was said at the hearing of the application that could be taken as an indication that the Court might act in a contrary fashion. 11. The Crown submitted that the indicative sentences should be reduced on account of the applicant's pleas of guilty but it should be by less than 10 per cent. The further submissions on behalf of the applicant briefly addressed this issue. Those submissions cited two cases where the plea was entered after the commencement of a trial and a 10 per cent discount was given, as well as a case discussing the considerations relevant to the discount. I have noted these cases, but as the submissions made no argument about how those cases relate to the applicant's circumstances I found them to be of limited utility. 12. Having regard to the fact that the pleas were entered at an extremely late stage as described earlier (at [37]-[40]), their utilitarian value was quite marginal. A 5 per cent reduction should be allowed (although there will be some rounding down in the applicant's favour in order to achieve a practical outcome). 13. In the assessment of an appropriate aggregate sentence the totality principle should be applied in a manner that has regard to the fact that the offences concerned two different victims. Further, there was criminality in the commission of the offence in Count 6 that cannot be subsumed by the sentence assessed for Count 5. However, I agree with the reasons of the primary judge for the indicative sentences for those offences being the same. Conclusion 1. The indicative sentence of imprisonment for the offence in Count 2 should be 11 months (derived from a starting point of 12 months). 2. The indicative sentence for Count 3 should be 1 year 10 months (starting point 2 years). 3. The indicative sentences for each of Counts 5 (taking into account the Form 1 offence) and 6 should be 5 years 8 months (starting point 6 years) with non-parole periods of 4 years. 4. The aggregate sentence should be 7 years 4 months with a non-parole period of 5 years. Orders 1. I propose the following orders: 1 Grant leave to appeal and allow the appeal against sentence. 2 Quash the sentence imposed in the District Court on 22 April 2016. 3 Sentence the applicant to an aggregate term of imprisonment for 7 years 4 months with a non-parole period of 5 years. The sentence will date from 24 July 2015. The non-parole period will expire on 23 July 2020 whereupon the applicant will become eligible for release on parole. ********** 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 May 2017