Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: WAP v R [2017] NSWCCA 212 Hearing dates: 2 May 2017 Date of orders: 01 September 2017 Decision date: 01 September 2017 Before: Johnson J at [1] Beech-Jones J at [121] Fagan J at [122] Decision: Leave to appeal against sentence granted. Appeal dismissed. Catchwords: CRIMINAL LAW – sentence appeal – two offences of having sexual intercourse without consent contrary to s.61l Crimes Act 1900 – offence of armed robbery contrary to s.97 Crimes Act 1900 – further s. 61l offence taken into account on a Form 1 – offences committed in 1992 – Applicant not charged until 2013 following "cold case" DNA match – Applicant sentenced to aggregate term of imprisonment for 10 years with a non-parole period of six years – claim that sentencing Judge infringed De Simoni principle – error not demonstrated – claim of error with respect to harm to victim – error not demonstrated – claim of error in approach to delay and totality in relation to sentences imposed for other offences committed by the Applicant in 1993 – no error demonstrated -- claim that aggregate sentence manifestly excessive – offences involved considerable objective gravity –aggregate sentence not manifestly excessive - appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DF v R [2012] NSWCCA 171 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 R v Dimian [2016] NSWCCA 223 R v Todd [1982] 2 NSWLR 517 R v WAP (Court of Criminal Appeal, Beazley JA, Studdert and Sully JJ, 19 August 1996, unreported) R v Youkhana [2004] NSWCCA 412 Stewart v R [2012] NSWCCA 183 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Texts Cited: Hon JJ Spigelman AC, "Address to Parole Authorities Conference 2006" (2006) 8 TJR 11 Category: Principal judgment Parties: WAP (Applicant) Regina (Respondent) Representation: Counsel: Ms R Burgess (Applicant) Ms HR Roberts (Respondent) Solicitors: Legal Aid, NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/345640 Publication restriction: --- Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 16 May 2016 Before: Judge Hanley SC File Number(s): 2013/345640 Judgment 1. JOHNSON J: The Applicant, WAP, seeks leave to appeal with respect to an aggregate sentence of imprisonment imposed at the Penrith District Court on 16 May 2016 for offences of sexual assault and armed robbery. The Applicant is described by the use of initials as this course had been adopted by this Court in 1996 with respect to an earlier appeal, to which reference will be made later in this judgment. The Offences and Aggregate Sentence 1. The offences for which the Applicant was sentenced were committed in 1992, but the Applicant was not charged with them until 2013 following a "cold case" DNA match which identified him as the offender. 2. Shortly prior to the commencement of his trial, the Applicant pleaded guilty on 22 May 2015 to the following charges: 1. Count 1 - On 7 March 1992, having sexual intercourse without consent contrary to s.61I Crimes Act 1900, an offence carrying a maximum penalty of imprisonment for 14 years. 2. Count 2 - On 7 March 1992, having sexual intercourse without consent contrary to s.61I Crimes Act 1900. 3. Count 3 - On 7 March 1992, armed robbery, contrary to s.97 Crimes Act 1900, an offence carrying a maximum penalty of imprisonment for 20 years. 1. In respect of Count 2, the Applicant asked that a further offence of sexual intercourse without consent contrary to s.61I (also committed on 7 March 1992) be taken into account on a Form 1 under s.32 Crimes (Sentencing Procedure) Act 1999. 2. At the time of these offences, a standard non-parole period did not apply to any of these offences. 3. On 16 May 2016, his Honour Judge Hanley SC sentenced the Applicant to an aggregate term of imprisonment for 10 years commencing on 28 November 2013 and expiring on 27 November 2023 with a non-parole period of six years expiring on 27 November 2019. 4. In accordance with s.53A(2) Crimes (Sentencing Procedure) Act 1999, the sentencing Judge noted the following indicative sentences: 1. Count 1 - Imprisonment for six years. 2. Count 2 (taking into account the matter on the Form 1) - Imprisonment for eight years. 3. Count 3 - Imprisonment for three years. Grounds of Appeal 1. By Notice of Application for Leave to Appeal filed on 27 January 2017, the Applicant relies upon the following grounds of appeal: 1. Ground 1 - The sentencing Judge infringed the De Simoni principle in taking into account the presence of a weapon and the threat to kill the victim in determining the objective seriousness of the offences pursuant to s.61I. 2. Ground 2 - The sentencing Judge erred in taking into account the injury, emotional harm or loss to the victim as an aggravating feature in the absence of a victim impact statement or other evidence as to the level of harm suffered. 3. Ground 3 - The sentencing Judge erred in failing to give adequate weight to the circumstances of delay and the principle of totality in relation to sentences imposed for other offences committed by the Applicant in 1993. 4. Ground 4 - The sentences for the sexual intercourse offences are manifestly excessive, in that they do not adequately reflect the sentencing practices at the time of the offending. Facts of Offences 1. What follows is drawn from the Statement of Agreed Facts tendered at the sentencing hearing. 2. The victim, whom I shall call "Helen" (which is not her real name) was born in 1950. She had been married, but divorced in 1992. She moved from the family home and commenced living at a unit in Penrith. The front door to her unit was accessed by walking through a gate and a timber fence that opened onto the road. She lived in the unit alone. 3. At about 10.00 pm on Saturday, 7 March 1992, Helen was alone in the unit when she heard a knock at the door. She opened the door and was met by the Applicant (then aged 22 years). He asked Helen for directions to a location unknown to her. Helen unlocked the screen door and opened it to get a better view of the person to whom she was talking. The Applicant asked for a glass of water stating that he had walked a long way and was very thirsty. Helen said "All right" and returned inside her unit to get a glass of water from the kitchen, but did not relock the screen door. She filled the glass of water and returned to the lounge room. 4. At this time, the Applicant was standing in the lounge room wearing a black balaclava and holding a long-bladed knife. He locked the front door. He then said "I am going to fuck you" and grabbed Helen's right biceps and half dragged her down the hallway to her bedroom. The Applicant asked if she had a husband and she replied "Yes, but he's out and would be home soon". 5. The Applicant then pushed Helen down onto her bed, causing her to sustain a small cut on her knee as she hit the edge of the bed. Whilst holding the knife, the Applicant reached under Helen's nightie and pulled down her underwear. The Applicant then placed the knife down on the bed near Helen's head. She was very scared and asked the Applicant not to use the knife. She determined not to struggle. 6. The Applicant forced Helen's legs apart and put his erect penis into her vagina causing her immediate pain. During this, the Applicant was saying "Cuddle me, cuddle me". Helen placed her arms around the Applicant, being fearful he would seriously injure her if she refused. The Applicant moved his erect penis back and forth for a short period of time prior to removing it from her vagina (Count 1). 7. The Applicant then ordered the victim to "suck me". Helen crawled to the end of the bed where the Applicant forced his erect penis into her mouth for a short period of time (Form 1 offence taken into account on Count 2). 8. The Applicant then grabbed Helen by her shoulders and forced her face down onto the bed. He moved behind her and forced his erect penis into her anus. This caused her extreme pain. The Applicant thrust his hips back and forward each time causing the victim further pain (Count 2). After a short period of time, the Applicant withdrew his penis and dressed himself. The Applicant then picked up his knife and dragged Helen from her bedroom. 9. When Helen was in the kitchen, the Applicant asked if she had any money. She had some notes in her purse on the table in the hallway. As she was in fear of the Applicant, Helen went to her purse and got out $100.00 which she gave to the Applicant (Count 3). 10. The Applicant moved towards the front door. He then turned and said "Don't tell anybody about this or I'll come back and kill you". At the time, Helen could not see the knife. The Applicant left by the front door. Helen locked the front door and then left by the back door and alerted her neighbours who called police. The police arrived a short time later. 11. Helen was taken to Nepean Hospital where she underwent an examination which included the taking of a number of swabs. Her anus was very sore as a result and she had a small injury to her knee. Semen was identified from a high vaginal swab obtained from her. 12. In February 2012, a request for assistance on this DNA cold case was made to the Forensic Intelligence Team, at which time the DNA material derived from the examinations was compared against DNA samples on the National DNA Database index. At this time, the Applicant's DNA was identified as comparable with DNA obtained at the scene. 13. On 28 November 2013, New South Wales Sex Crimes Detectives travelled to Cairns in Queensland, where the Applicant was being held by virtue of a New South Wales arrest warrant. The Applicant was arrested and cautioned and returned to Sydney. 14. On arrival in Sydney, the Applicant was conveyed to Mascot Police Station where he was entered into custody. He agreed to provide a sample of his DNA by way of a buccal swab. Further testing was done and it was found that the Applicant's DNA profile was the same as that of the DNA profile derived from the semen recovered following the attack on Helen on 7 March 1992. The chance of the DNA profile occurring randomly in the general population was one in 100 billion. Procedural History in the Local and District Courts 1. The Applicant was charged with these offences on 28 November 2013. He was committed for trial from the Local Court and was arraigned at the Penrith District Court on 25 September 2014. He pleaded not guilty to five counts on the indictment, including three counts of aggravated sexual intercourse without consent contrary to s.61J Crimes Act 1900, one count of armed robbery contrary to s.97 Crimes Act 1900 and one count of break and enter a dwelling with intent whilst armed. 2. The trial was listed for May 2015. On 22 May 2015, prior to the commencement of the trial and following negotiations, the Applicant pleaded guilty to the charges set out at [3] above and asked for the additional s.61I offence to be taken into account on a Form 1. The Applicant's Criminal History Before 1993 1. As noted, the Applicant was 22 years old at the time of the offences. He was 46 years old at the time of sentence. 2. The Applicant had an extensive criminal history commencing in 1982 for offences of dishonesty, break, enter and steal and possession and use of prohibited drugs for which various sentences, including custodial sentences, had been imposed up to 1989. 3. On 3 March 1989, the Applicant was sentenced to a total period of seven years' imprisonment, with a non-parole period of four years to date from 3 March 1989, for offences of break, enter and steal (seven counts), break and enter with intent to steal (two counts), escape from lawful custody and take and drive conveyance without consent. Accordingly, the Applicant was on parole at the time of the commission of the present offences on 7 March 1992. 4. On 16 April 1992, the Applicant committed offences of taking a conveyance without consent, possession of house-breaking implements, mid-range drink driving and other traffic offences, for which he appeared before the Penrith Local Court on 24 June 1992 and was fined and disqualified. 5. On 7 August 1992, the Applicant's parole was revoked and he returned to custody. It may be taken that he had committed a further offence of break, enter and steal prior to that date for which he appeared before the Orange Local Court on 4 September 1992 and was sentenced to six months' imprisonment. He was released from custody on 22 July 1993. The Applicant's 1993 Offences Relevant to Ground 3 1. On 31 July 1993, the Applicant committed a number of serious offences, including sexual intercourse without consent in circumstances of aggravation contrary to s.61J Crimes Act 1900 (two counts), entering a building with intent to commit assault contrary to s.114(d) Crimes Act 1900, armed robbery contrary to s.97 Crimes Act 1900, seizing and carrying away a person against her will (a common law offence) and assault contrary to s.59 Crimes Act 1900. On 9 December 1994, the Applicant was sentenced in the District Court for these offences to a total effective term of imprisonment for 12 years with a non-parole period of nine years to date from 2 August 1993. 2. The Applicant sought leave to appeal against sentence to the Court of Criminal Appeal, relying upon fresh evidence concerning assistance to authorities which had not been before the sentencing Judge. The Court allowed the appeal and resentenced the Applicant to a term of imprisonment for 11 years with a non-parole period of eight years: R v WAP (Court of Criminal Appeal, Beazley JA, Studdert and Sully JJ, 19 August 1996, unreported). 3. Given the issues raised on this appeal (including Ground 3 which relates to the 1993 offences), it is appropriate to set out the circumstances of the July 1993 offences. Studdert J (Beazley JA and Sully J agreeing) recited the facts of those offences in the following way: "The relevant facts are conveniently summarised in his Honour's remarks on sentence. Dealing firstly with the offences that were committed before the applicant entered the home of the victim of the sexual assaults, his Honour summarised these circumstances as follows: 'At about 6.50 pm on Saturday 31 July 1993 the prisoner went to the home of [Mr W] and knocked on the door. At this time the accused was armed with a large knife and was disguised with a stocking mask. When [Mr W] answered the knock the prisoner pushed open the door, brandished the knife at [Mr W], took hold of his shirt collar and told him to get into the house. He then released [Mr W] telling him to shut the door and at the same time taking hold of [Mrs W] and similarly pointing a knife at her face. When [Mr W] fled the house calling for police assistance the prisoner released [Mrs W] and decamped.' Having left the home of [Mr and Mrs W] the applicant proceeded to the home of [Mrs X], who was at home watching television with her three-year old son. His Honour summarised what occurred concerning the commission of the aggravated sexual assaults against this victim as follows: 'At approximately 7pm there was a knock on the front door which was answered. On opening the door a couple of inches [Mrs X] was confronted by a male person disguised with a black stocking mask and carrying what appeared to her to be a large boning knife. She was told to 'Cut the light, shut the kid up' and was forced back into her home under threat of the knife. He then said to her, 'You know what I'm going to do to you, don't you?' [Mrs X] did not know the identity of her intruder. [Mrs X] was required to turn off every light in the house, the only available light being that which emanated from the television which her son was watching. [Mrs X] was told to undress after she had been forced into her bedroom and on to the bed. He then demanded she assist him insert his penis into her vagina and intercourse followed for a short while after which he removed the balance of his own clothing. This act of sexual intercourse is the third count in the indictment. At this stage [Mrs X] noticed that the time shown on her bedside clock was 7.10 pm. She further noticed a dark stain on her pillow which had not originally been there. Later forensic examination results would permit the conclusion that the substance was the accused's blood. [Mrs X] pleaded with her attacker not to hurt her and he in turn threatened her, 'Shut up or you will be dead and I'll get the kid.' Following this act of intercourse the prisoner again had vaginal intercourse followed by penile penetration of her anus which caused [Mrs X] considerable pain and discomfort. Her cries again prompted him to threaten the life of her son if she did not remain quiet. The act of anal penetration is the fourth count in the indictment. Following this she was forced from the bedroom to the hallway-lounge room where she tried to comfort her son who by this time was distressed. [Mrs X] estimated the time at this stage was approximately 7.30 pm. [Mrs X] was then taken back into the bedroom where she was forced into various positions and subjected to a number of further acts of penile penetration both vaginal and anal. During the commission of these assaults he demanded money supported by threats that he would cut her throat if she failed him. The prisoner then enquired, 'What big round objects do you have in the house? I want to fuck you with them'. 'Do you have any cucumbers or carrots?' She then found for him an aerosol can of Sprayfresh which he then used to attempt unsuccessfully to penetrate her anus. He thereafter inserted that object into her vagina, moving it back and forth for a short while. This act constituted the fifth count in the indictment. At this stage the complainant was suffering great vaginal and anal pain and she offered to obtain for the prisoner some lubricant. She was taken to the bathroom and there found and gave to him a bottle of Fauldings olive oil. He then smeared the oil around her vaginal area and then penetrated her vaginally and anally with his fingers, followed by penile penetration of her anus and vagina. She was then forced to return to the bedroom where she was again subjected to a number of acts of sexual intercourse, vaginally, anally and orally. [Mrs X] was again taken from her bedroom and this time out to the kitchen where she was forced to select a carrot from the refrigerator. She again attempted to console her son. Whilst in the kitchen she was again penetrated vaginally with an object which she could not identify. She was then forced back to the bedroom and on to the bed where the accused inserted the carrot into her anus and told her to hold it there. This act constitutes the sixth count in the indictment. Whilst the complainant held the carrot in this position the prisoner penetrated her vagina with his penis. The prisoner then told the complainant that the carrot was not big enough and he said, 'I'll use the biggest thing I've got, my fist.' He then inserted his fist into the complainant's vagina. This act constitutes the seventh count in the indictment. There then followed a further number of acts of penetration both vaginally and anally of the complainant. The prisoner at all times took steps to ensure that [Mrs X] did not see him and threatened he would kill her if she did.' The applicant then required of the victim that she go with him from the home across a reserve nearby, having first demanded of her the supply of a bag in which he placed her video recorder. The victim was also robbed of a quantity of money and jewellery. Having left the home, [Mrs X] was subjected to further acts of sexual indignity: '[Mrs X] was forced to walk with the accused from her home to the park opposite where she was again subjected to further acts of sexual intercourse both vaginally and anally and one, the final act, when she was compelled to suck his penis. These acts constitute the eighth and ninth counts in the indictment.' I should add that included in the property which the applicant took from [Mrs X] was a framed photograph of herself and her son and he employed this as a basis for a further threat to her welfare should she report what he had done. The above summary is a summary largely taken from the victim's statement. His Honour observed, to my mind with complete accuracy, that it is necessary to read this victim's statement fully to comprehend completely: 'the horror and the repugnance which this woman must have felt on this night in question, invaded in her own home with her young child of three in her company.' These were simply appalling sexual offences and the other offences were anything but trivial. All the offences involved the use of a knife as a weapon and this Court has repeatedly stressed the seriousness with which the use of such a weapon must be viewed in the sentencing process." Further Offences After 2003 1. The Applicant was released to parole on 12 December 2003. In August 2004, the Applicant was fined and disqualified at the Penrith Local Court for a mid-range PCA offence and unlicensed driving. 2. On 10 September 2007, the Applicant appeared before the Mt Druitt Local Court on a series of domestic violence offences including assault occasioning actual bodily harm and knowingly contravening an apprehended violence order ("AVO") for which he was dealt with by way of suspended sentence and good behaviour bonds. 3. In May 2008, the Applicant was sentenced to three months' imprisonment for contravening an AVO order, that sentence being confirmed in October 2008 on appeal to the District Court. There were further offences of common assault and driving whilst disqualified in 2008 for which sentences of imprisonment were imposed. 4. The Applicant has a criminal history in Queensland for offences committed between 2010 and 2013 involving (amongst other things) possession of a knife in a public place, wilful damage and possession of a dangerous drug for which non-custodial sentences were imposed. Evidence Concerning Subjective Matters 1. Tendered at the sentencing hearing were psychiatric reports from Professor David Greenberg (dated 15 August 2008) and Dr Gerald Chew (dated 15 March 2016). In addition, an affidavit was furnished by Sister Eveline Crotty of the Sisters of Mercy who spoke of her contact with the Applicant over many years since he was 13 years of age. Some Findings of the Sentencing Judge 1. The sentencing hearing proceeded before his Honour Judge Hanley SC on 24 March 2016, at the conclusion of which he adjourned the matter for sentence on 16 May 2016. 2. In his remarks on sentence on 16 May 2016, the sentencing Judge said, with respect to the s.61I offences (ROS5-6): "The Legislature has not distinguished the seriousness between the varying acts of sexual intercourse that are included in that definition, however some may be regarded as more serious depending upon the circumstances surrounding the commission of the offences. In the circumstances of this matter I regard the anal intercourse as a more serious sexual intercourse than those relevant to count 1 and the offence on the Form 1 due to the additional degree of force used and pain inflicted on the victim. I regard each of these offences as at towards the higher end of objective seriousness when compared to like offences. These offences were committed upon a stranger in her home and involved a high degree of criminality. In addition to the inherent violent nature of such offences each was carried out with a degree of force that was intended to cause the victim considerable pain, humiliation and emphasised the degree of power the offender was exercising over the victim. Each sexual intercourse is stated in the facts as occurring for 'a short time.' Despite this I am satisfied that these offences took place over a period of time in which the victim's fear would have increased with each additional 'assault' upon her. There was also the presence [of] the knife in the possession of the offender. Although no threat was made by the offender to inflict actual bodily harm to the victim, I am satisfied he was aware its presence would have caused fear and compliance in the victim." 1. His Honour then turned to the armed robbery offence (ROS6): "This was committed after the offender had violently sexually assaulted the victim. The handing over of the money by the victim was no doubt brought about by the fear engendered by the prior violence. The offender was armed with a knife (an element of the offence). The robbery itself was over a relatively short period of time and involved a small amount of money taken. I assess this offence as below the mid-range of objective seriousness. The seriousness of each offence was compounded by the fact the offender threatened to come back and kill the victim if she told anyone. I am satisfied, in view of his conduct towards the victim, that she had reason to regard this as a real and imminent threat." 1. His Honour referred to a number of aggravating factors (ROS6-7): 1. the offences took place in the victim's home where she was entitled to feel safe and secure; 2. the offences were planned prior to the Applicant knocking on the victim's door with him using a ruse to gain entry - he came armed with a knife and a balaclava and the randomness of the choice of the victim did not detract from an assessment that there was a degree of planning; 3. at the time of the commission of the offences, the Applicant was on conditional liberty by way of parole; 4. the Applicant had a lengthy criminal history and the fact that he was subject to conditional liberty and had a criminal record disqualified him from any leniency. 1. Under a heading "Substantial harm to the victim", the sentencing Judge said (ROS7): "Although no victim impact statement was tendered I am satisfied the victim would have suffered substantial emotional and physical harm. These were appalling offences committed with considerable violence and in circumstances that must have left emotional scars upon the victim. I am satisfied I can make that assessment from the history of the offences as set out in the 'Agreed Facts'." 1. His Honour allowed a 10% discount for the Applicant's pleas of guilty on the first day of the trial. 2. His Honour noted that the Applicant had expressed remorse and accepted that this expression was genuine, with some support for this flowing from his pleas of guilty thereby saving the victim from giving evidence at the trial. 3. The sentencing Judge then outlined the Applicant's subjective circumstances in the following way (ROS8-9): "The offender's background is set out in detail in the reports of Dr Gerald Chew dated 15 March 2016 (part of exhibit 1) and a report of Professor Greenberg dated 15 August 2008 (also part of exhibit 1). The offender was born on 10 November 1969 and was 23 years at the time of the offences. He is now 46 years of age. His background, as I have said, is set out in the various reports and the affidavit of Sister Evelyn Crotty from the Sisters of Mercy. In summary, the offender's father died when he was eight years of age and the family moved from South Australia to Lalor Park. His mother is currently living in a nursing home in Queensland. He has three brothers and one sister. One brother was murdered in custody in 2004. He has three children: an eight year old daughter and a ten year old son who live with their mother and with whom he has no contact as the relationship with the mother is strained; and, he has an adult son to a different mother who is aged 23 and with whom he is in regular contact. He attended school to age 15 but this was interrupted because of behavioural issues and ADHD. He worked casually over years as a forklift driver and labourer. In relation to his family background, he came from a deprived background in that there was violence and alcohol and abuse by his parents. His mother remained an alcoholic during her life. As a result of his uncontrollability he was placed into foster homes and whilst there was sexually assaulted. Despite bringing that to the attention of the appropriate authorities nothing was done about it. His criminal record commenced in 1982, just before his 13th birthday. Despite long periods of his adult life in custody he has worked as a forklift driver, labourer, welder and scaffolder. All of his relationships with women have ended as a result of his alcoholism. He commenced using drugs in his teenage years and continued into his adulthood. He suffers from acute pancreatitis as a result of his alcohol abuse." 1. His Honour then adverted to the Applicant's disadvantaged upbringing and evidence concerning his mental health, noting the diagnosis of Professor Greenberg in 2008 that the Applicant was suffering from a personality disorder with antisocial features and more recent diagnoses by Justice Health and Dr Chew that the Applicant suffered from schizophrenia. 2. His Honour turned to make findings favourable to the Applicant that his moral culpability was diminished in accordance with the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 in that (ROS10): "a) He came from a dysfunctional family where violence and alcohol abuse were common; b) His father died when he was 8; c) His mother is an alcoholic; d) He was an uncontrollable child, made a ward of the State and committed to boy's homes; e) He was subjected to sexual abuse by those supposedly there to care for him and despite reporting these crimes against him they were ignored; f) His criminal record commenced when he was 13 years of age; and g) He commenced using drugs and alcohol when a young teenager. I am satisfied on the basis of these matters that his moral culpability was diminished to some extent by these factors." 1. His Honour made the following findings with respect to the Applicant's prospects of rehabilitation and likelihood of reoffending (ROS11): "In 1993 he committed similar but more serious offences. Since then he has committed less serious offences although he has frequently been before the Court. In view of his underlying mental health problems and criminal history and drug and alcohol problems I am unable to make any positive assessment of his prospects for rehabilitation for not re offending in the future." 1. His Honour outlined the circumstances in which the Applicant had been and was held in protective custody, and took that aspect into account by acknowledging that the time he spends in custody is more onerous than a prisoner in the general population (ROS11). 2. With respect to general deterrence, the sentencing Judge said (ROS12): "Counsel for the offender submits that he is not a suitable candidate for general deterrence as a result of the fact that he suffers from mental illnesses. I am not satisfied that his development of schizophrenia since these offences, together with other diagnoses I have referred to, make him an inappropriate candidate for general deterrence. At best his schizophrenia was in a prodromal state at the relevant time. He was, however, at the time abusing alcohol and drugs that may well have affected his behaviour in the commission of these offences. I am satisfied that general deterrence should play a significant factor in the sentencing process." 1. His Honour was satisfied that, in light of the Applicant's current assessment, there was a lesser need for emphasis on specific deterrence in his case (ROS12). 2. The sentencing Judge addressed issues of denunciation and retribution in the following way (ROS13): "These are appalling, violent crimes requiring a need for denunciation and retribution to be reflected in the sentences imposed to assure the community that such behaviour will be met with condign sentences." 1. The sentencing Judge made a finding of special circumstances as follows (ROS13): "I am prepared to make a finding of special circumstances on the basis of Dr Chew's recommendations that: a) He requires extensive input for mental health and alcohol/drug services and this should occur via a 'residential alcohol and drug rehabilitation facility'; b) He needs to engage with mental health services and remain compliant with medication and appointments; c) His mental illness will make punishment more onerous for him when compared to other prisoners. I am satisfied he needs an extended period of time under supervision within the community to ensure his rehabilitation is closely monitored. I have taken into account section 5 of the Crimes (Sentencing Procedure) Act and I am satisfied that no penalty other than a custodial sentence is appropriate. I have also taken into account those matters under Part 3 of the Act as I have identified them and particularly including his plea of guilty." 1. His Honour then turned to the issue of totality, an issue of particular significance in light of Grounds 3 and 4 (ROS13-14): "It is appropriate to deal with this sentence by way of an aggregate sentence. In doing so I have taken into account: a) The offences occurred during a discrete course of criminality. Each offence would be significantly concurrent with the other but slightly accumulated upon each to recognise the distinct criminal acts; b) The fact of the sentencing regime applicable at the time is applied as best as I can ascertain. In this respect, I note the standard non parole periods were not legislated and therefore available as a guide or an indication of the increasing seriousness with which the Legislature regarded this type of offending. To that extent, I am satisfied that sentencing was less severe than it is today. This will take into account also the delay in finalising these matters. However, the significant reasons for delay were the fact that the perpetration of the offences had not been identified until the "cold case" hit and the indication of pleas of not guilty in listing the matters for trial extended the period of time between arrest and his being finalised. The offender cannot receive any benefit from the delay occurring by those factors; c) the overall sentence should not be crushing; d) other sentences imposed in respect of the 1993 offences be taken into account in the overall assessment of totality. However, in taking these factors into account the sentence still needs to recognise that these offences were appalling, serious and have caused a great deal of harm to and fear in the victim." 1. The sentencing Judge then stated the indicative sentences and passed the aggregate sentence as mentioned earlier in this judgment. 2. Finally, his Honour directed that the reports of Dr Chew and Professor Greenberg be forwarded to the Department of Corrective Services to assist them in relation to the Applicant's rehabilitation. 3. It may be seen from these extracts from the remarks on sentence that his Honour provided careful and considered reasons for the aggregate sentence ultimately imposed, given the somewhat unusual features of the case and the need to sentence the Applicant in 2016 for very serious offences committed in 1992. Ground 1 - Suggested Infringements of the De Simoni Principle Submissions 1. Ms Burgess, counsel for the Applicant, submitted that the sentencing Judge had fallen into error by having regard to the presence of the knife and the making of a threat in the manner contained in the extract from the remarks on sentence at [39] above. It was submitted that it was not open to the sentencing Judge to adopt this approach as the Applicant was to be sentenced for offences under s.61I Crimes Act 1900 as it stood in 1992, and not aggravated sexual assault under s.61J of that Act. 2. Although the sentencing Judge had been careful in the language used in making this finding, it was submitted that the effect of the finding was that there had been an implied threat of actual bodily harm by means of the knife. 3. The Crown submitted that the sentencing Judge had not adopted an impermissible approach in this part of the remarks on sentence. It was submitted that these features were part of the Agreed Statement of Facts and were appropriate to be taken into account on sentence for the s.61I offences as well as the armed robbery offence. Decision 1. As at 7 March 1992, ss.61I and 61J were in the following terms: "61I Sexual assault Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to penal servitude for 14 years. 61J Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to penal servitude for 20 years. (2) In this section, circumstances of aggravation means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is under the age of 16 years, or (e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (f) the alleged victim has a serious physical disability, or (g) the alleged victim has a serious intellectual disability." 1. The complaint under Ground 1 is that the sentencing Judge impermissibly had regard to factors which fell within s.61J(2)(b) of the Act in that immediately before and after the commission of the offence, the Applicant threatened to inflict actual bodily harm on the victim of an offensive weapon, a knife. 2. In imposing sentence, a Judge is entitled to consider all the conduct of the offender, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at 389. The De Simoni principle is an aspect of the fundamental principle that no one should be punished for an offence for which the person has not been convicted: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at 667 [29]. 3. It is necessary to read fairly those parts of the remarks on sentence where his Honour dealt with the knife and the threat issue. The structure of his Honour's remarks involved consideration firstly of the s.61I offences to which the findings at [39] above relate. 4. His Honour was careful to avoid an impermissible finding and the conclusion reached by his Honour was, in my view, permissible in the circumstances of the case. 5. It should be kept in mind that submissions had been made to his Honour concerning the application of the De Simoni principle to this case so that this was a live topic at the hearing. This Court should be slow to infer a De Simoni error on the part of a sentencing Judge well versed in the criminal law in circumstances such as this. 6. It would be unrealistic to excise from remarks on sentence any reference to the knife or the comment made by the Applicant to the victim before he departed the premises. What his Honour said in this respect did not constitute a finding of an implied threat which would fall within s.61J(2)(b) of the Act. 7. I would reject the first ground of appeal. Ground 2 - Claim of Error With Respect to Harm to the Victim Submissions of the Parties 1. It was submitted for the Applicant that the sentencing Judge's findings at [42] above are erroneous. It was submitted that it was not open to the sentencing Judge to make a finding in terms of s.21A(2)(g) Crimes (Sentencing Procedure) Act 1999 that any injury, emotional harm or loss to the victim in this case was substantial. Counsel submitted that what was contained in the Agreed Statement of Facts revealed a level of injury or harm which was expected in offences of this type, so that the threshold had not been reached for a finding that any level of injury or harm was substantial. 2. It was submitted, as well, for the Applicant that the approach taken by the sentencing Judge on this aspect involved an impermissible approach (in breach of the De Simoni principle) in that the Court had found, in effect, that aggravating circumstances as contained in s.61J(2)(a) of the Act existed in that the Applicant maliciously inflicted actual bodily harm to the victim. 3. The Crown submitted that it was open to the sentencing Judge to make the impugned finding in this case. The Crown submitted that a victim impact statement is not an essential prerequisite for such a finding and that the matters contained in the Agreed Statement of Facts constituted a sufficient basis for this finding to be open to the sentencing Judge. Decision 1. In order to be taken into account as "substantial harm" within the meaning of s.21A(2)(g), the harm suffered by a victim needs to be shown to be greater than that which ordinarily attaches to an offence of the kind in question: R v Youkhana [2004] NSWCCA 412 at [26]; Stewart v R [2012] NSWCCA 183 at [61]. 2. The giving of a victim impact statement is not mandatory: s.29(1) Crimes (Sentencing Procedure) Act 1999. The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim: s.29(3). 3. Although a sentencing court is required to have regard to aspects of sentencing of an offender for offences committed in 1992, it remains necessary for a contemporary sentencing court to have regard to the important role of the victim in sentencing proceedings and the impact upon the victim of crimes of violence. 4. One of the purposes of sentencing is to recognise the harm done to the victim of a crime and the community: s.3A(g) Crimes (Sentencing Procedure) Act 1999. As Spigelman CJ observed (extra curially) in 2006, "An emphasis on the role of victims in the criminal justice system has emerged throughout the western world over recent decades" and it "represents a basic reorientation in the administration of criminal justice to which judges have been required to adapt": Hon JJ Spigelman AC, "Address to Parole Authorities Conference 2006" (2006) 8 TJR 11 at 18. 5. Recently, the High Court of Australia observed in Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54] that the role of the criminal law includes "the long standing obligation of the State to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence". 6. It is not the case that a finding of "substantial harm" can only be made by reference to a victim impact statement, or evidence external to the material before the sentencing court including an Agreed Statement of Facts. Whether the evidence does support such a finding will involve consideration of the evidence in the particular case. 7. The sentencing Judge was informed that Helen was still alive at the time of sentence. One may well understand why a 66-year old woman would not wish to expose her personal thoughts and feelings publicly to a sentencing court, in particular many years after the events in question. As already noted, a victim impact statement is not mandatory and no inference of the absence of harm can be drawn from the fact that no such statement is placed before the sentencing court. 8. The critical finding in the passage set out at [42] is his Honour's reference to the "emotional scars" which must have been left upon the victim as a result of what his Honour described (accurately) as "appalling offences committed with considerable violence". It was on this basis that his Honour was satisfied that Helen would have suffered substantial emotional and physical harm. 9. I do not accept the Applicant's argument that this was a type of finding that the Applicant had maliciously inflicted actual bodily harm to the victim so as to engage s.61J(2)(a) of the Act. 10. There was some evidence of actual bodily harm in the form of cuts to the victim's body, but his Honour did not advert to that aspect in this finding. Rather, his Honour had regard to the Agreed Statement of Facts and the prolonged and terrifying process to which the victim was subjected including sexual assaults perpetrated upon her in different ways accompanied by violence and pain. 11. His Honour had regard to the fact that a woman living on her own was subjected to these crimes in her own home by an offender who tricked his way into the premises, with clear planning and intent to subject the victim to an ordeal by way of sexual assaults in her own bed. 12. It does not require evidence or a statement by the victim to found a conclusion that a terrifying event of this type would have long-lasting and probably permanent effects upon the emotional well-being and confidence of any woman treated in this way. 13. Is the effect of this that it was not open to the sentencing Judge to find that this level of harm was greater than that which ordinarily attaches to offences of this kind in question? This is what the Applicant must demonstrate to make good this ground of appeal. 14. In the circumstances of this case, I am satisfied that the harm to be clearly inferred exceeded that which ordinarily attaches to an offence of this kind. The Applicant has not demonstrated that this finding was not open to the sentencing Judge. 15. I would reject the second ground of appeal. Ground 3 - Claim that Adequate Weight Not Given to Delay and the Totality Principle With Respect to the Other Sexual Assault Offences Committed in 1993 Submissions of the Parties 1. It was submitted to the sentencing Judge that had the present offences been dealt with at the same time as the 1993 offences, the sentence for each set of offences would have been reduced to give effect to the totality principle in accordance with the principles in R v Todd [1982] 2 NSWLR 517 at 519-520 and Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 65-66. 2. It was submitted for the Applicant before this Court that, despite the fact that the sentencing Judge had adverted to the totality principle in his sentencing remarks, it may be inferred that his Honour had not given adequate weight to these considerations on sentence. 3. The Crown submitted that the sentencing Judge had not erred in his approach to delay or totality in the circumstances of the case with regard having been given to each of those matters on sentence. Decision 1. It should be observed at the outset that a ground of appeal asserting that a Judge attributed insufficient or inadequate weight to an issue has the inherent problem of implicitly acknowledging that some weight had been given to the particular matter: DF v R [2012] NSWCCA 171 at [77]. 2. The sentencing Judge addressed the issues of delay and totality in the way cited at [54] above. In the circumstances of this case, delay was of very limited assistance to the Applicant. 3. The Applicant had not been left in a state of uncertain suspense in the sense referred to in R v Todd. Nor had the Applicant demonstrated rehabilitation during the period since the commission of the offence and imposition of sentence. Nor was he still serving a sentence of imprisonment imposed upon him for the second set of sexual offences in 1993 (nor any other later sentence of imprisonment) when he came to be sentenced for the 1992 offences: R v Dimian [2016] NSWCCA 223 at [61]-[62]. 4. Although the totality principle can be called in aid by an offender in the position of the Applicant, it is necessary to keep in mind the particular circumstances of the case in determining what weight could be given to it. 5. When sentence came to be imposed in the District Court and then the Court of Criminal Appeal for the 1993 offences, the Applicant's case was assessed upon the basis that he had no prior sexual assault offences. In truth, he had committed the very serious offences in 1992 against the present victim. 6. Had the same sentencing court sentenced the Applicant for both sets of offences at the same time, this aspect would have worsened the Applicant's position on sentence. 7. When the Applicant came to be sentenced in 2016 for the 1992 offences, the Court could have regard to the 1993 offences only with respect to his further offending in a similar fashion after the 1992 offences. 8. In truth, the Applicant came to be sentenced by two different sentencing courts on different occasions without the Applicant being sentenced upon the basis that, when he committed the very serious 1993 offences, he had committed very serious offences of a similar type in the previous year. To approach notional totality in circumstances such as this involves a measure of artificiality. 9. That said, the sentencing Judge heard submissions from the parties on this issue and dealt with them in the manner indicated in his remarks on sentence. 10. I am not persuaded that any error has been demonstrated on the part of the sentencing Judge in this respect. His Honour gave these aspects such weight as he considered appropriate in all the circumstances of the case. 11. I would reject the third ground of appeal. Ground 4 - Claim of Manifest Excess with the Sentences Not Adequately Reflecting the Sentencing Practices at the Time of the Offending Submissions of the Parties 1. Counsel for the Applicant submitted that the aggregate sentence in this case was manifestly excessive when regard was had to sentencing practices in about 1992. 2. It was noted that the sentencing Judge took into account that the sentencing regime at the relevant time was less severe than the present day (see [54] above). It was submitted, however, that his Honour had not complied with the requirements of the law in having regard to what was said to be relevant material in this respect. The Court was referred to a schedule of cases concerning s.61I offences in a period between 1994 and 2015 in support of this submission. 3. The Crown submitted that it is proper for a sentencing court to take into account the sentencing practices prevailing at the date of the commission of the offences where such can be discerned from available material. At the same time, however, the non-parole period must still represent the minimum period of imprisonment required to be served having regard to all the purposes of justice. 4. Whilst noting the need for caution when regard is had to sentencing statistics and what were said to be comparable cases, the Crown submitted that the schedule relied upon by the Applicant demonstrated that, during the 1990s, a wide range of sentences were imposed for offences under s.61I and that the sentence imposed in the present case does not fall outside that range (if a range can be ascertained). 5. With respect to the claim of manifest excess which forms part of Ground 4, the Crown submitted that the Applicant had not demonstrated that the sentence was unreasonable or plainly unjust. It was submitted that the present offences constituted very serious criminal conduct, with the s.61I offences being at the highest end of the range of objective seriousness and the armed robbery offence being slightly lower than mid-range. There was a degree of planning and the offences took place in the home of the victim and were painful, terrifying and humiliating. 6. It was noted that the Applicant was on parole at the time of the offences. Insofar as any aspect of the Applicant's subjective circumstances could assist him, the sentencing Judge had taken those matters into account. 7. The Crown submitted that it had not been demonstrated that the sentence was manifestly excessive. Decision 1. The sentencing Judge was well aware of the approach to sentencing for offences committed at a much earlier time, in this case, in 1992. His Honour had regard to the submissions advanced on this aspect and noted that the sentences to be imposed for offences of this type in 1992 were less than those which would be imposed for equivalent offences at the present time. 2. I have had regard to the range of decisions referred to by the Applicant and the Crown in this case. It is necessary to keep in mind that the Applicant committed two s.61I offences, with a third to be taken into account on a Form 1 on sentence for Count 2. In addition, the Applicant was to be sentenced for a serious offence of armed robbery which was associated with the s.61I offences, but constituted a significant additional area of criminality for the purpose of sentence. 3. I accept the Crown submission that an examination of the decisions of this Court on sentence for s.61I offences in the 1990s does not provide any real support for the Applicant's submission that the sentence imposed upon him was infected by error. Nor do I think that the Applicant is assisted materially by any comparison with the sentence ultimately passed for his 1993 offences by this Court. 4. I reject that part of Ground 4 which is founded upon an argument that his Honour erred in his approach on sentence by reference to sentencing practices as at 1992. 5. With respect to the claim of manifest excess otherwise made in Ground 4, I have kept in mind that the Applicant needs to demonstrate that the aggregate sentence imposed was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 371 [25]. 6. These were offences of considerable objective gravity committed by the Applicant in breach of conditional liberty at a time when he was on parole. The Applicant had a significant prior criminal history and his subsequent criminal history (including the 1993 offences) did not assist him on sentence. 7. The sentencing Judge gave close attention to the Applicant's subjective circumstances at the time of sentence, and made a number of favourable findings in that regard which I have set out earlier in this judgment. The sentencing Judge was sensitive to the particular health difficulties which the Applicant had come to experience (and presently experiences) and gave appropriate weight to these considerations in the exercise of instinctive synthesis culminating in the imposition of the aggregate sentence. 8. The sentence imposed was well within the exercise of proper sentencing discretion for these serious offences, having regard to all relevant aspects of the offender and general sentencing principles. 9. The Applicant has not demonstrated that the sentence imposed was manifestly excessive. I would reject the fourth ground of appeal. Conclusion 1. The Applicant has failed to make good any of his grounds of appeal. 2. I should observe, however, that even if the Applicant had demonstrated error in some respect, I would not have formed the view that a lesser sentence was warranted having exercised the necessary discretionary process under s.6(3) Criminal Appeal Act 1912. If that point had been reached, I would have taken into account the affidavit of the Applicant sworn 28 April 2017 and the affidavit of his solicitor, Stephen Eccleshall, affirmed 28 April 2017. 3. Having done so, and having undertaken the process required in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 617-618 [42]-[43], I would have determined that no lesser sentence was warranted in law in all the circumstances of the case. 4. I propose that leave to appeal against sentence be granted, but that the appeal be dismissed. 5. BEECH-JONES J: I agree with Johnson J including the observations at [118] to [119]. 6. FAGAN J: I agree with Johnson J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2017