Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RL v R [2018] NSWCCA 274 Hearing dates: 14 September 2018 Decision date: 03 December 2018 Before: Macfarlan JA at [1]; Bellew and Wilson JJ at [49] Decision: 1. Grant leave to appeal. 2. Dismiss the appeal. Catchwords: CRIME – appeal against sentence – applicant convicted and sentenced for six sexual assault offences against his step-daughters – whether sentencing judge erred in assessment of objective seriousness of particular offences – whether sentencing judge erred when partially accumulating each sentence by failing to consider question of totality – whether head sentence imposed for one offence was manifestly excessive – whether error in sentencing process should be inferred – whether attachment of a Form 1 offence to sentence for one count was capable of explaining difference in head sentence from that for earlier count – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61M(2), 66A(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 44(2) Cases Cited: AB v R [2013] NSWCCA 273 Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 Franklin v R [2013] NSWCCA 122 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 MRM v R [2015] NSWCCA 195 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185 R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 R v Morgan (1993) 70 A Crim R 368 R v Thalari 75 NSWLR 307; [2009] NSWCCA 170 R v Vougdis (1989) 41 A Crim R 125 R v XX [2009] NSWCCA 115; (2009) 159 A Crim R 38 Shortland v R [2013] NSWCCA 4 Zahorsky v R [2013] NSWCCA 268 Category: Principal judgment Parties: RL (Applicant) Regina (Respondent) Representation: Counsel: D Barrow (Applicant) B Baker (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/224808 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 31 March 2017 Before: Herbert DCJ File Number(s): 2015/224808 Judgment 1. MACFARLAN JA: On 31 March 2017 the applicant was sentenced in the District Court in respect of six sexual assault offences of which he pleaded guilty. The offences concerned the applicant's stepdaughters, V1 and V2. V1 was born in November 1997 and V2 in June 2002. At the time of the offending against her, V2 believed that the applicant was her biological father. The sentences 1. The offences and the sentences imposed were as follows: Count 1: Between 20 November 2004 and 20 November 2006, the applicant assaulted V1 and at the time of the assault committed an act of indecency on V1, a child then under the age of 10 years, namely seven or eight years (s 61M(2) of the Crimes Act 1900 (NSW)). The maximum penalty for this offence was 10 years imprisonment, with a standard non-parole period of eight years applicable (although the sentencing judge referred to the latter as five years). Sentence: Taking into account an indecent assault offence on a Form 1, a three year non-parole period commencing on 31 July 2015 and a balance of term of 18 months. Count 2: Between 20 November 2006 and 20 November 2007, the applicant assaulted V1 and at the time of the assault committed an act of indecency on V1, a child then under the age of 10 years, namely nine years (s 61M(2) of the Crimes Act). The maximum penalty and standard non-parole period were the same for this count as for Count 1. Sentence: A non-parole period of two and a half years commencing on 31 January 2016 and a balance of term of one year and one month. Count 3: Between 20 November 2007 and 20 November 2008, the applicant assaulted V1 and at the time of the assault committed an act of indecency on V1, a child under the age of 16 years, namely 10 years (s 61M(1) of the Crimes Act). The maximum penalty for this offence was seven years imprisonment, with a standard non-parole period of five years applicable. Sentence: A non-parole period of three years and three months commencing on 31 July 2017 and a balance of term of one year and three months. Count 4: Between 17 June 2008 and 17 June 2011, the applicant had sexual intercourse with V2, a child under the age of 10 years, namely six, seven, eight or nine years (s 66A(1) of the Crimes Act). The maximum penalty for this offence was 25 years imprisonment, with a standard non-parole period of 15 years applicable. Sentence: A non-parole period of four years and two months commencing on 31 July 2018 and a balance of term of two years and one month. Count 5: Between 1 June 2014 and 31 August 2014, the applicant had sexual intercourse with V2 without her consent knowing that she was not consenting and in circumstances of aggravation, namely that V2 was a child then under the age of 16 years, that is 12 years (s 61J(1) of the Crimes Act). The maximum penalty for this offence was 20 years imprisonment, with a standard non-parole period of 10 years applicable. Sentence: A non-parole period of six years and five months commencing on 31 January 2020 and a balance of term of two years and seven months. Count 6: On or about 25 July 2015, the applicant had sexual intercourse with V2 without her consent knowing that she was not consenting and in circumstances of aggravation, namely that V2 was a child then under the age of 16 years, namely 13 years (s 61J(1) of the Crimes Act). The maximum penalty and standard non-parole period were the same for this count as for Count 5. Sentence: Taking into account an aggravated sexual assault offence on a Form 1, a seven year non-parole period commencing on 31 July 2021 and a balance of term of six years and seven months. 1. The first Form 1 offence was an indecent assault upon V1 when she was under the age of 10 years (s 61M(2)). It was taken into account in relation to Count 1. The second Form 1 offence was a further aggravated sexual assault of V2 (s 61J(1)). It was taken into account in relation to Count 6. 2. The total effective sentence was 19 years and seven months, with a total effective non-parole period of 13 years. The accumulation for which the sentences provided was: * Six months between Count 1 and Count 2; * 18 months between Count 2 and Count 3; * 12 months between Count 3 and Count 4; * 18 months between Count 4 and Count 5; and * 18 months between Count 5 and Count 6. 1. The ratios of the non-parole periods to the sentences were as follows: Count 1: 66.6%; Count 2: 69.8%; Count 3: 72.2%; Count 4: 66.6%; Count 5: 71.3%; and Count 6: 51.5%. Total effective sentence: 66.4%. 1. The nature of the offences as described in the Agreed Facts tendered before the sentencing judge and as summarised by the Crown on appeal was as follows. The offences involving V1 1. V1 stated that, from when she was aged seven until she was 11, the applicant made inappropriate comments to her and touched her inappropriately or sexually on a regular basis. She stated that the applicant was very aggressive and often yelled at her and the rest of the family. She recalled that on one occasion the applicant became so enraged that he punched a hole through a door. V1 said that the abuse stopped at about the time she started menstruating. 2. Count 1 occurred between 20 November 2004 and 20 November 2006, when V1 was seven or eight years old. V1 was in her mother's bedroom when the applicant came into the room and played a pornographic DVD. While the DVD was playing, the applicant rubbed his hand on the outside of V1's vagina under her underwear. 3. The Form 1 offence attached to Count 1 also occurred between 20 November 2004 and 20 November 2006, when V1 was seven or eight years old. V1 and the applicant were at home alone and were both in the lounge room watching television. The applicant changed the channel to a pornographic channel. While the pornography was playing, the applicant came up behind V1, started rubbing her shoulders and kissed her on the lips. V1 felt uncomfortable as no one had ever touched or kissed her like that before. 4. Count 2 occurred between 20 November 2006 and 20 November 2007, when V1 was nine years old. V1 was in her mother's and the applicant's bedroom, lying on the bed watching television with her two sisters. The applicant came in, lay behind V1, put his erect penis between the cheeks of her bottom and vagina and, from behind, began to thrust his body against her with his penis. He also rubbed his hand on the outside of V1's vagina. V1 could not recall if her younger sisters were in the room when the offence occurred. 5. Count 3 occurred between 20 November 2007 and 20 November 2008, when V1 was 10 years old. V1's mother asked her to ask the applicant what he wanted for dinner. V1 went to the bedroom where the applicant was lying down wearing a sarong with underwear underneath. The applicant grabbed V1's head and pushed it towards his penis. V1 kept pulling her head away and said, "No", but the applicant kept pulling her head towards his penis. V1's face kept hitting the applicant's penis. Offences involving V2 1. V2 said that the applicant regularly abused her from when she was aged six years. She estimated that between mid-2014 and mid-2015 the applicant abused her on about seven or eight occasions. 2. Count 4 occurred between 17 June 2008 and 17 June 2011, when V2 was between six and nine years old. The applicant was in the lounge room with V2, who was on the floor. The applicant was on the lounge. V2 could not recall how the incident started but she recalled licking the applicant's erect penis and putting it in her mouth. Whilst she was doing this, the applicant said to her, "Do it longer, I'll give you some money". 3. Count 5 occurred between 1 June 2014 and 31 August 2014, when V2 was 12 years old. V2 and the applicant were at home alone. V2 was sleeping on her mother's bed. She was awoken by the applicant entering the room and lying on top of her. V2 kept her eyes closed. The applicant removed her clothes and forced his penis into her vagina. V2 said, "Don't, stop, no". The applicant whispered into her ear, "You're ready for me", and continued pushing his penis into her vagina. V2 was crying and in pain, and tried to push the applicant off. The applicant got off and left the room. The applicant's penis was inside V2 for about 20 seconds. 4. The Form 1 offence attached to Count 6 occurred on or about 25 July 2015, when V2 was 13 years old. During the afternoon, V2 was at home with her younger brother and the applicant. V2 fell asleep on the lounge. She awoke to the sensation of the applicant's hand on her legs. V2 kept her eyes closed and the applicant moved her legs, pushed her underwear to the side and put his fingers inside her vagina. 5. The applicant then pulled V2 closer to him, so that V2's back was on the lounge and her legs were bent. He pushed his penis into her vagina causing V2 pain. She opened her eyes and pushed the applicant away with her foot. The applicant got up and walked away into the kitchen. V2 put her clothes back on, pulled a blanket over herself and went back to sleep. These matters formed Count 6. The sentencing judgment 1. The sentencing judge commenced by noting the standard non-parole periods and maximum penalties provided for the applicant's offences, and allowing a 10% discount to reflect the utilitarian value of the applicant's late plea of guilty. 2. Having referred to the circumstances of the offences as well as the Victim Impact Statements of V1 and V2, her Honour turned to the applicant's subjective case. 3. Her Honour referred to the applicant's criminal record and concluded that it was such as to disentitle him to leniency. She noted that the applicant had not had a good childhood, and that he had a history of substance abuse and "problematic gambling". She also noted the view of a forensic psychologist, whose report was tendered on sentence, that the applicant was suffering from acute major depression. Her Honour accepted as genuine the applicant's expressions of remorse and contrition that were given in his evidence on sentence. Her Honour found however that the applicant's depressive symptoms post-dated his arrest, that his prospects of rehabilitation were "guarded" as his offending occurred over a 10 year period and that he was well aware of the wrongfulness of his actions at the time of the offences. Her Honour concluded that she was unable to find that the applicant was unlikely to reoffend. 4. The sentencing judge then made the following preliminary observations concerning the objective seriousness of the offences: "The abuse of the position of trust by a stepfather in the overall circumstances of each offence is entitled to significant weight. The helplessness of a young girl in such a family situation is apparent. These young girls were in their own home where they should have been safe and protected from harm. I take into account the fact that they were all committed in the home of the victim as a circumstance of aggravation. The offences averred against the offender are representative only. So the offender is not [to] be sentenced on the basis that these were isolated offences. It was in fact a part of a pattern of abuse that extended over a decade." 1. Her Honour found the offences charged in Counts 1 and 2 to be "well above the mid-range of objective seriousness", that charged in Count 3 to be "in the high range of objective seriousness", that in Count 4 "above the mid-range of objective seriousness" and those in Counts 5 and 6 "well above" the mid-range. 2. Her Honour made the following further observations concerning the Count 5 and 6 offences: "Count 5 occurred within weeks of [V2's] twelfth birthday. She had gone to sleep in her mother's bed. She was woken by the offender lying on top of her and pretended to be asleep. The offender removed her underclothes and forced his penis inside her vagina. She said 'Don't, stop, no'. The offender's reply to the 12 year old child was 'You were ready for me' and he continued to penetrate the child. [V2] was crying in pain and tried to push the offender off. The duration of the penetration was 20 seconds but the timeframe must be considered in light of the fact that a child who had just turned 12 was subjected to full penile penetration causing pain and distress. When she asked him to stop he persisted and such act also involves the possible exposure to disease. The offender appeared to show some concern post offence but this is consistent with his concern … that the offence would be reported. I find this offence to be well above the mid-range of objective seriousness. The last time [V2] was sexually assaulted was within the week of her police interview and also within the weeks following her thirteenth birthday. The offence on the Form One referrable to count 6 is digital penetration which woke the sleeping child followed by penile vaginal penetration which again caused her pain and which stopped when she kicked the offender. I find this offence to be well above the mid-range objective seriousness. The facts do not disclose whether [V2] had started menstruating at the time of the offences involving penile penetration. Even if she had not as a 13 year old girl there is still an exposure to the risk of pregnancy if the offence was committed at about the time menstruation started. Unprotected penile vaginal penetration is objectively serious exposing a young female victim to the risk of pregnancy and disease as we held in AC v R [2016] NSWCCA 117 at 66. No 12 year old should, as the victim was, be put at the risk of disease, pregnancy, childbirth or miscarriage and the physical, hormonal and emotional consequences which they can each have, let alone the risk of motherhood and all of the lifelong responsibilities which that can being with it. In MLP v R [2006] NSWCCA 271 Justice Kirby held; 'Unquestionably, the age of the victim is an important consideration in determining the objective seriousness of the crime and whether it falls within the mid-range. But it does not follow that, because age is relevant and because the section contemplates a range of ages, an offence against a child approaching the age of 10 cannot be regarded, or should not be regarded, as being within the mid-range. The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable. Whilst the age of the victim was a matter for his Honour to consider (which he obviously did) his remarks do not betray error.'" 1. Her Honour concluded her sentencing remarks as follows: "Considerations of general deterrence are important for each of the offences committed by the offender as is personal deterrence. This was persistent sexual abuse over a ten year period. It did not stop for [V2] even after the first police involvement. In this matter I have considered s 5(1) of the Crimes (Sentencing Procedure) Act requiring that the Court must not sentence an offender to imprisonment unless it is satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate. I find for each offence that no … penalty … [other than] imprisonment is appropriate. There will have to be a degree of accumulation for these offences to reflect the separate nature of the offences and the overall criminality. I have made a finding of special circumstances so the offender can be subject to extended supervision upon his release to ensure he is given appropriate support and treatment upon his release. The fact that there is accumulation has also been taken into account." DETERMINATION OF THE APPLICATION FOR LEAVE TO APPEAL GROUND 1: "HER HONOUR ERRED WHEN CONSIDERING THE OBJECTIVE SERIOUSNESS OF COUNTS 5 AND 6" 1. In support of this ground, the applicant submitted that the sentencing judge's observations that the applicant's conduct charged in Counts 5 and 6 put V2 at risk of pregnancy and its concomitants (see [22] above) were inapposite because: "[t]here was no evidence in the proceedings on sentence about the point [V2] had reached in her physical development at the time of the commission of the offences. There was no evidence that the applicant had ejaculated inside [V2]. There was no evidence whether or not he had worn a condom. He had given evidence in the sentence proceedings however had not been asked about these matters." 1. Given that V2 was aged 12 or 13 years at the time of the offences, there was a distinct possibility that she had commenced menstruating and that the applicant's conduct therefore put her at risk of pregnancy. The absence of evidence as to whether she had or had not commenced menstruating did not in my view preclude the sentencing judge from making the remarks that she did. On the evidence as it stood, the risk to which her Honour referred existed. 2. Similarly, the absence of evidence as to whether the applicant used a condom did not preclude her Honour from making those remarks. The Agreed Facts referred to the applicant forcing his penis into V2's vagina and, in the absence of any suggestion in them that his penis was protected by a condom, her Honour was entitled to proceed upon the basis that it was not. 3. Nor did the absence of evidence that the applicant ejaculated inside V2 preclude her Honour from finding that V2 was at risk of pregnancy. As the applicant was sexually stimulated and had his penis inside V2's vagina, V2 was at risk of ejaculation occurring and therefore of pregnancy. GROUND 2: "HER HONOUR ERRED WHEN PARTIALLY ACCUMULATING EACH SENTENCE BY FAILING TO CONSIDER THE QUESTION OF TOTALITY" 1. As recorded above, the sentencing judge said in her judgment that "[t]here will have to be a degree of accumulation for these offences to reflect the separate nature of the offences and the overall criminality". This was a sufficient indication that, in accordance with Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45], her Honour fixed appropriate sentences for each offence and then considered "questions of cumulation or concurrence, as well, of course, … questions of totality". The manner in which her Honour structured the sentences, allowing various periods of accumulation and concurrence between sentences, supports this conclusion. 2. In his written submissions, the applicant stated that, because the sentencing judge failed to consider the "principle of totality", the "resulting sentence, for reasons similar to MRM v R [2015] NSWCCA 195 at [62], is manifestly excessive". As the applicant said, in MRM the majority took the view that the overall sentence was manifestly excessive. In the present case, however, the applicant did not in his grounds of appeal assert that to be so and in his written submissions simply stated that proposition without seeking to support it other than by his contention that her Honour failed to consider totality. 3. Even though there is doubt in these circumstances whether this Court needs to address the question, I nevertheless record that I do not consider the total sentence to be manifestly excessive, even recognising that the applicant was given a 10% discount on sentence to reflect the utilitarian value of his pleas of guilty and that the notional starting point was accordingly higher than the sentence imposed. 4. As the Crown submitted, the following aspects of the offences support that conclusion: "(i) The applicant's offending constituted a course of sexual abuse against two separate victims on multiple occasions; (ii) The victims were the applicant's stepdaughters and the commission of the offences represented a grave breach of trust; (iii) The victims were very young when the offending conduct commenced; (iv) The offences were aggravated by having been committed in the victims' home which was an environment where the victims were entitled to feel safe; (v) The psychologist, Mr Borkowski, who prepared a report which was tendered as part of exhibit 1, reported that the applicant recognised how he had manipulated and groomed the victims, making sure they were never scared of him; (vi) The indictment spanned a period of about 9 years; and (vii) The offending ceased only upon the applicant's arrest." 1. The significant maximum penalties and prescribed standard non-parole periods applicable to the offences are also relevant in this regard. The former ranged from seven years to 25 years and the latter from five years to 15 years. As well, because the offences involved child sexual abuse, the sentencing objectives of general deterrence, denunciation and protection of the community assumed particular importance. Moreover, the applicant's subjective circumstances referred to in [19] above did not provide him with any significant assistance on sentencing. GROUND 3: "THE SENTENCE IMPOSED ON THE APPLICANT ON COUNT 6 IS MANIFESTLY EXCESSIVE" 1. The focus of the applicant's submissions in relation to this ground was that the head sentence imposed in respect of Count 6 was much longer than that imposed in respect of Count 5 (13 years and seven months as against nine years) when, so the applicant submitted, the Count 5 offending conduct was either comparable with, or more serious than, that involved in the Count 6 offence. He submitted that whilst the Count 6 sentence took into account a Form 1 offence, and the sentencing judge was entitled to increase the sentence on Count 6 for that reason, that was not sufficient to explain the difference between the sentences. He submitted that, because the Form 1 offence was part of the same incident as the Count 6 offence, little if any increase in the sentence for Count 6 was justified by reason of it. 2. The Crown responded by submitting that the sentence imposed in respect of Count 6 was within the range of sentences reasonably open to the sentencing judge and was therefore not manifestly excessive. It pointed particularly to the applicant's abuse of his position of trust as the victims' stepfather, to the offending having taken place in the victims' home, to the sentencing judge finding that the Count 6 offence was "well above the mid-range of objective seriousness" and to the Form 1 offence being a serious offence for which the sentencing judge was entitled to increase the penalty in respect of Count 6. Moreover, the Crown submitted that the non-parole period fixed in respect of Count 6 reflected the sentencing judge's "generous finding of special circumstances". Referring to Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22]-[23], the Crown submitted that it was "necessary for the sentence imposed to reflect the need for personal deterrence and retribution arising from the additional criminality involved in the further [Form 1] offence". Beyond pointing to the inclusion of the Form 1 offence, the Crown did not however advance any explanation for the marked difference between the head sentences in relation to Counts 5 and 6, with the Count 6 sentence being slightly more than 50% higher than that on Count 5. 3. I accept that some increase in the head sentence for Count 6 was appropriate in light of the need to take into account the Form 1 offence because it was serious as it involved digital penetration. For the reasons set out below, however, that increase would in my view fall well short of the difference between the two head sentences. 4. The principles relating to Form 1 offences were authoritatively stated in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518. They included the following propositions, which Spigelman CJ stated with the concurrence of the other members of the Court: * "[T]he entire point of the [Form 1] process is to impose a longer sentence (or to alter the nature of the sentence) then would have been imposed if the primary offence had stood alone" (at [18]). * "[I]t is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial" (ibid). * "… using the Form 1 procedure will generally result in a lower effective sentence than would have been imposed in the case of a conviction followed by a separate sentence" (at [34]). * "The sentencing court is sentencing only for the 'principal offence'. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a 'discount' for the use of the procedure" (at [39]). (See also Abbas v R [2013] NSWCCA 115 at [23]). 1. Whilst, as these propositions indicate, a sentencing judge should not determine appropriate sentences for offences listed on a Form 1, it is useful for the purpose of resolving the challenge made in Ground 3 to the sentence on Count 6 to consider what the head sentence might have been if the Form 1 matter associated with Count 6 had been the subject of a separate charge ("Count 7"). In that circumstance, the Court would have had to sentence the applicant for a very serious offence involving digital penetration of a child, but the judge would have also had to ensure that "the aggregation of the sentences appropriate for [Count 6 and the putative 'Count 7', as well as for all of the counts] [was] a just and appropriate measure of the total criminality involved" (Postiglione v The Queen (1997) 189 CLR 295 at 307-8; [1997] HCA 26). As the Count 6 and "Count 7" offences occurred in the course of a single episode of sexual assault, the extent to which the sentences should be made concurrent or should be accumulated would have arisen. The critical question would then have become whether, and to what extent, the sentence for the Count 6 offence comprehended and reflected the criminality of the other offence (R v XX [2009] NSWCCA 115; (2009) 159 A Crim R 38 at [52]). 2. It has frequently been found that the sentence for an assault in the course of one episode of sexual assaults, to some extent at least, comprehends the criminality of another offence committed during the same episode (R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 at [56]-[57]; R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [13]; Franklin v R [2013] NSWCCA 122 at [43]-[47]). 3. Whilst the extent of concurrency and accumulation allowed for is a matter for the sentencing judge and appellate courts will intervene only where the sentences and/or their structure are "unreasonable or plainly unjust" (House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40), accumulation approaching 50% of the head sentence for "Count 7" over that for Count 6 would in my view have involved appellable error. That is, the view that the criminality of "Count 7", to an extent approaching 50%, was not encompassed by the criminality of Count 6, committed during the same episode, would have been unreasonable. 4. When this consideration is added to the fact that the further conduct was not charged as an offence but was simply included in a Form 1 associated with Count 6, the unreasonableness of imposing a head sentence for Count 6 that was, apparently by reason of the Form 1 matter, 50% higher than the Count 5 sentence is made clear. As indicated in [36] above, use of the Form 1 procedure will generally result in a lower effective sentence than if a separate charge is made. 5. Moreover, there is force in the applicant's submission that the Count 5 offence was somewhat more serious than the Count 6 offence because, in relation to the former, V2 was 11 months younger, and unlike what occurred in relation to Count 6, V2 had asked the applicant to stop but he persisted and the Agreed Facts stated that she was crying and in pain. 6. Whilst I would not conclude that the head sentence imposed in respect of Count 6 was outside the range of sentences open to her Honour to impose, I consider that, in the absence of any explanation other than the Form 1 offence being attached to Count 6, it should be inferred that some error has occurred in the sentencing process as a result of the Count 6 head sentence being about 50% higher than that for Count 5. There is in my view an analogy available with the reasoning in House where, in the context of sentencing, the plurality said at 505: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 1. If considered in isolation, the sentence in respect of Count 6 cannot be regarded as "unreasonable or plainly unjust". However, when it is considered in the context of the other sentences that her Honour imposed, in particular that in respect of Count 5, the inference to which their Honours referred in House should in my view be drawn. That is, although it cannot be described how the sentencing judge arrived at her Count 6 sentence, it should be inferred that there has been a failure properly to exercise the sentencing discretion. The fact that her Honour set a non-parole period for Count 6 that was similar to that set for Count 5, whilst providing for very different head sentences for the two counts, supports the inference that she made a mistake in setting the Count 6 head sentence. 2. As error has been established in respect of the Count 6 sentence, it is the duty of this Court to exercise the sentencing discretion afresh (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]). For that purpose, I would adopt her Honour's observations as to the objective seriousness of the offence and findings as to the applicant's subjective circumstances, as well as her Honour's assessment of the appropriate discount to allow for the applicant's plea of guilty. Having regard to the maximum penalty and standard non-parole period as legislative yardsticks, and to the objectives of sentencing, in particular the need for denunciation and general and specific deterrence, and taking into account the relevant Form 1 offence, I would impose a head sentence of 11 years and six months in respect of Count 6. 3. As to the non-parole period, I would adopt the sentencing judge's finding of special circumstances, which was not challenged on appeal. Consistent with the ratios of the non-parole periods to the total sentences imposed in respect of the other counts (see [5] above), a modest adjustment to the ratio specified in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be adopted. I would specify, as did the sentencing judge, a non-parole period in respect of Count 6 of seven years, to commence on 31 July 2021. This produces a ratio of 60.9% which contrasts with the ratio of 51.5% applicable to the sentencing judge's sentence on Count 6. 4. At the hearing of the application for leave to appeal, the applicant's counsel was alerted to the possibility that on re-sentencing the Court might impose a lesser head sentence for Count 6 but adopt the same non-parole period as the sentencing judge had specified, with the consequence that the ratio of the non-parole period to the head sentence would increase significantly. Understandably, the applicant's counsel indicated that this was not what the applicant sought but that he would prefer that result to no interference with the sentence at all. 5. The effect of the re-sentence on Count 6 on the total effective sentence in respect of all of the counts is that the sentence is reduced by two years and one month but with the same overall non-parole period. 6. For the reasons above, I propose the following orders: 1. Grant leave to appeal. 2. Quash the sentence imposed in the District Court in respect of Count 6. 3. After taking into account the applicable Form 1 offence, re-sentence the applicant in respect of the offence charged in Count 6 of the Indictment to a sentence of imprisonment of 11 years and six months, with a non-parole period of seven years commencing on 31 July 2021. 4. Note that the effect of this sentence, when taken together with the sentences imposed in the District Court in respect of Counts 1 to 5, is that the applicant is sentenced to a total effective head sentence of 17 years and six months with a non-parole period of 13 years, to commence on 31 July 2015. The applicant will thus become eligible to be released on parole on 30 July 2028. 1. BELLEW and WILSON JJ: We have had the advantage of reading in draft the judgment of Macfarlan JA, to whose summary of the evidence and issues on appeal we gratefully refer. We agree with the conclusions of Macfarlan JA in relation to grounds 1 and 2. However, we have, respectfully, reached a different conclusion to that of the Presiding Judge in relation to the disposition of ground 3 which asserts that the sentence imposed in respect of count 6 was manifestly excessive. In order to make out that ground, it is incumbent upon the applicant to establish that the sentence was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54. 2. Macfarlan JA has set out the competing arguments advanced before this Court as to ground 3 at [33] – [34] and, at [42], accepted that the sentence imposed by the sentencing judge with respect to count 6 was not outside the range of sentences open to her to impose, or (at [43]) that it could not be said to be unreasonable or plainly unjust. We agree with all that his Honour has there stated. 3. We are unable to conclude, however, that error is to be inferred in the length of sentence imposed with respect to count 6 when that sentence is compared to that imposed relevant to count 5. There is a significant difference between the two sentences, but that difference must be understood in the context of the offence taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and of the sentence imposed as a whole. 4. Although, as the applicant submitted, the offence placed before the sentencing court on a Form 1 document to be taken into account when sentence was imposed for count 6 was part of a course of conduct which included conduct reflected by count 6, that did not dictate that there should be no material increase in sentence for the principal count. 5. Section 33(3) of the Crimes (Sentencing Procedure) Act is the only statutory limit upon the sentence that may be imposed where an offence is taken into account pursuant to s 33(2). It provides: 33(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account. 1. In Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 the provisions of s 33, along with those of s 32, were considered by this Court. The following propositions can be extracted from the judgment of Spigelman CJ: 1. although a court is sentencing for a particular offence, the use of the Form 1 means that the sentencing court takes into account an additional matter or matters in respect of which guilt has been admitted: at [42]; 2. the sentencing court takes such additional matter(s) into account with a view to increasing the penalty that would otherwise be appropriate for the offence for which the person is to be sentenced: at [42]; 3. the sentencing court takes such additional matter(s) into account by giving greater weight to two elements which are always material in the sentencing process, namely personal deterrence, and the entitlement of the community to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed: at [42]; 4. the manner and degree to which the Form 1 offence(s) can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors, and the weight to be given to them in the overall sentencing task: at [44]. 1. Two further propositions regarding the use of a Form 1 in sentence proceedings can be extracted from the recent judgment of Bathurst CJ in Abbas, Bodiotis Taleb and Amoun v R [2013] NSWCCA 115: 1. ss 32 and 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) empower a sentencing court, in sentencing for the principal offence, to take further offence(s) into account, which could lead to an increase in penalty (up to the maximum penalty) for the principal offence: at [22]; 2. such an approach would generally, although not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the further offence(s) were not taken into account: at [23]. 1. The offending conduct the subject of count 6 was extremely serious, involving as it did penile-vaginal penetration of a 13 year old child (to whom the applicant stood in a position of trust as her de facto step-father) which caused her pain. The offence was committed at the complainant's home, where she should have been entitled to safety. It occurred after a number of such assaults, during which the complainant's distress at what was forced upon her by the applicant could not have been anything but clear to him. That conduct alone had to attract a substantial sentence. The maximum penalty that could have been imposed for count 6 was one of 20 years imprisonment. Personal deterrence was a clearly a relevant factor on sentence in light of the multiplicity of offending. The sentencing Judge specifically referred to that issue (at ROS 17) and properly took it into account in determining the appropriate sentence. 2. Moreover, as the Crown pointed out in oral submissions before this Court, the offending in the Form 1 offence was scarcely any less serious, involving the applicant pushing his fingers into his step-daughter's vagina, having awoken her from sleep by placing his hands on her. The young complainant was particularly vulnerable in sleep, and that vulnerability was taken advantage of by the applicant, as was the position of trust in which he stood to her. That was not an offence which ought to have attracted little or no increase to the penalty imposed with respect to the principal offence, despite its proximity in time and close relationship to the conduct the subject of count 6. As Spigelman CJ said in Attorney General's Application at [18], […] the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. 1. Whilst each case must obviously be determined on its own facts, the proposition that there should be little or no increase to the sentence imposed with respect to the principal offence because of another offence or other offences taken into account has been consistently rejected by this Court: R v Vougdis (1989) 41 A Crim R 125 at 128 – 129; R v Morgan (1993) 70 A Crim R 368 at 371 – 371; R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185 at [55], [62], and [64]. Submissions to that effect were again, and decisively, rejected in Abbas a Bench constituted by five judges, where it was said by Bathurst CJ at [22] that: It is clear from the provisions of s 33(3) that [taking further offences into account] could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. 1. That was the case here. 2. There is a further consideration when examining the sentence imposed for count 6 in comparison with that imposed for count 5. Where a sentencing court has imposed sentence for a number of offences at the same time, a ground of appeal that focuses narrowly on the sentence imposed for one of those offences to suggest error tends to introduce an element of artificiality into the appeal process: AB v R [2013] NSWCCA 273 at [89]; Zahorsky v R [2013] NSWCCA 268 at [54]; R v Thalari (2009) 75 NSWLR 307 at 320; [2009] NSWCCA 170 at [82]. See also Shortland v R [2013] NSWCCA 4 at [147]. 3. Whilst the sentencing judge was obliged to fix an appropriate sentence for each offence in accordance with Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, she had also to observe the principle of totality stated in Pearce as to the total effective sentence, bearing in mind questions of concurrency and accumulation; and to comply with s 44 of the Crimes (Sentencing Procedure) Act as to the ratio of non-parole period ("NPP") and the balance of the term of the sentence. 4. Meeting requirements for percentage ratios in particular, whilst observing other principles of sentence, is not necessarily a straightforward task. One of the available tools for a sentencing judge in doing so is to adjust an individual sentence, within a range of permissible sentences. That approach does not constitute error in our opinion. 5. In our view, examining the sentence imposed with respect to count 6 in comparison to that imposed for count 5 as a means to argue for manifest excess, has a tendency to overlook or ignore all of the principles to which the sentencing judge had to give effect, and to overlook or ignore the total effective sentence achieved by the sentences imposed to reflect the applicant's very grave offending conduct. Looked at overall and having regard to the serious nature of the offending conduct taken into account against count 6, the sentence imposed was within the range of sentence properly available with respect to such conduct. As concluded by Macfarlan JA, the non-parole period is also within the proper range. 6. In all of these circumstances we are unable to accept the submission advanced on behalf of the applicant that taking into account the Form 1 in the present case would have been properly addressed by "a very modest increment in penalty, or without any increase in the appropriate penalty to be imposed on count 6". Such a submission completely overlooks the seriousness of the offending set out in the Form 1 to which we have referred. In those circumstances, we are not satisfied that the sentence imposed in respect of count 6 is manifestly excessive. Her Honour's approach was consistent with principle, and the sentence which was ultimately imposed was entirely consistent with that to which Bathurst CJ envisaged in Abbas, namely one which was significantly longer than might have been required absent consideration of the Form 1. 7. For these reasons we propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal. ********** 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 December 2018