Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Alarcon v R [2018] NSWCCA 298 Hearing dates: 9 November 2018 Date of orders: 19 December 2018 Decision date: 19 December 2018 Before: Basten JA at [1] Schmidt J at [2] Fagan J at [107] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – assault with act of indecency – victim under 16 years – sexual intercourse with person under 16 years – intimidate with intention to cause fear of physical harm – whether the sentencing judge mistook the facts in relation to count 3 and thereby erred in assessing the objective seriousness of the offending – whether the sentences imposed in respect of counts 2 and 3 were manifestly excessive Legislation Cited: Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: 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 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 DL v The Queen [2018] HCA 32 Hughes v R [2018] NSWCCA 2 Kresovic v R [2018] NSWCCA 37 Moss v R [2015] NSWCCA 313 Mulato v Regina [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 PB v R [2016] NSWCCA 258 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 R v Hibberd [2009] NSWCCA 20 R v King [2009] NSWCCA 117 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v MD [2018] NSWDC 156 R v Wilkinson (No 5) [2009] NSWSC 4 R v Wright [2017] NSWCCA 102 Ramoss v R [2015] NSWCCA 313 Stewart v R [2012] NSWCCA 183 Vandeventer v R [2013] NSWCCA 33 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 West v R [2017] NSWCCA 306 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: John Alarcon (Applicant) Regina (Respondent/Crown) Representation: Counsel: I Neil SC with M Kalyk (Applicant) F Veltro (Respondent/Crown) Solicitors: Murphy's Lawyers Inc (Applicant) Solicitor for Public Prosecutions (Respondent/Crown) File Number(s): 2015/146650 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: --- Date of Decision: 07 April 2017 Before: Syme DCJ File Number(s): 2015/146650 Judgment 1. BASTEN JA: I agree with Schmidt J and with the additional reasons of Fagan J. 2. SCHMIDT J: In April 2017 Syme DCJ sentenced John Alarcon for two offences under ss 61M(2) and 66C(3) of the Crimes Act 1900 (NSW) and one offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which he admitted having committed on 16 May 2015. Mr Alarcon received 12% discounts for those pleas. 3. Mr Alarcon asked that two other offences, one of assault under s 61 of the Crimes Act and the other of intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act, be taken into account on a Form 1 in respect of count 2: s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). They thus had to increase the sentence imposed for that count, in the way explained 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 at [39]. 4. Mr Alarcon was at the same time re-sentenced by her Honour for domestic violence related offences, one of intimidation and two of assault, against his wife. These offences had been committed in December 2014. He had pleaded guilty to them and s 9 bonds had been imposed in the Local Court in February 2015.. 5. The s 61M indecent assault offence attracted a maximum penalty of 10 years and a standard non-parole period of 8; the s 66C(3) sexual intercourse offence a maximum penalty of 10 years; the s 61 common assault offences maximum penalties of 2 years and the s 13(1) intimidation offences, maximum penalties of 5 years. 6. The total sentence imposed on Mr Alarcon for all of these offences was 6 years and 4 months imprisonment, with a non-parole period of 4 years and 6 months, comprised of: 1. By way of resentence for the December 2014 offences, for which Mr Alarcon had been under s 9 bonds at the date of the fresh offences charged on the indictment, fixed terms of 12 months imprisonment for the intimidation offence and 6 months for each of the two assaults (all concurrent) commencing 20 November 2016. 2. For count 1, the s 61M indecent assault offence, a sentence of 1 year 4 months, with a non parole period of 1 year, accumulated by 3 months, on the breach of bond sentences. 3. For count 3, the s 13(1) intimidation offence, a further 2 month accumulation on the indecent assault charge, with a sentence of 2 years and 6 months and a non-parole period of 1 year and 9 months. This sentence was wholly concurrent with those imposed for counts 1 and 2. 4. For count 2, the s 66C sexual intercourse offence another 3 month accumulation, with a sentence of 5 years and 8 months and a non-parole period of 3 years and 10 months, taking into account the two Form 1 offences. 1. Mr Alarcon has already served the sentences for the December 2014 offences for which he was called up for breach of his s 9 bonds and he has served the sentence for the indecent assault contrary to s61M(2) (count 1). Grounds of appeal 1. Mr Alarcon seeks leave to appeal the sentences imposed upon him for the ss 66C and 13(1) offences, on two grounds. First, that her Honour erred in her assessment of the objective seriousness of the s 13(1) offence, because she mistook the facts and second, that the sentences imposed for both that and the s 66(C) offence were manifestly excessive. 2. For the following reasons, I am satisfied that while leave to appeal must be granted, Mr Alarcon's appeal must be dismissed. The sentencing judgment 1. Syme DCJ delivered her detailed judgment ex tempore, immediately after hearing the parties' submissions. 2. Mr Alarcon was sentenced on agreed facts which her Honour there noted included that: 1. On 16 May 2015 Mr Alarcon, then aged 37, attended a party held at a friend's home, which was also attended by the victims RH and NF, who were then aged 14 years and 11 months and 15 years and 4 months respectively, as well as by other of their school friends. 2. During the party Mr Alarcon encountered NF on three occasions. On the first he slapped her on the bottom with the palm of his hand and on both the second and third, he flicked her on the breasts, using one hand to flick each breast. This was the subject of count 1, assault with an act of indecency on a person under the age of 16 years. 3. At around midnight, after the party had died down, RH left the bedroom where she had been with her friends. At that time Mr Alarcon was the only adult present, the father of the girl who lived there having left to take NF to another friend's home. 4. Mr Alarcon then took RH by the arm and led her out of the house to the garage, where he locked the door. When she asked what was going on, he said "don't worry" and placed his hands on her head and neck and then on her breasts, which he squeezed on the outside of her clothes, for about a minute. He then put his hands inside the victim's pants, over her underpants and squeezed her bottom for about a minute. 5. While RH said "stop stop", Mr Alarcon said "don't worry" and placed his hands down the front of her pants and inserted his fingers into her vagina. She again said "stop", but Mr Alarcon continued, pressing on a tampon in her vagina, which caused her pain. RH screamed, but he kept his fingers in her vagina for about 5 minutes. This was the subject of count 2, sexual intercourse with a person under the age of 16 years. 6. RH's friends had noticed that she was missing and were looking for her, when they heard her scream out. When they found the door of the garage locked, one of them shoulder charged the door and broke it open, cutting his hand in doing so. They told Mr Alarcon to leave, but as they all left the garage, he picked up a lump hammer which was about 30 cm long and raised it above his shoulder, when one young person was about two and a half metres away and said "everybody get the fuck out". This conduct was the subject of the Form 1 common assault offence taken into account on count 2. 7. Her Honour then observed at 4: "The offender followed them into the kitchen still holding the hammer. RH and her friends went to a nearby café where they discussed the matter. The young males," … and …, "went back to the home a few minutes later to collect some of the other girls, one of whom had called" … "to say that they were scared. As they approached the house, they saw the offender sitting on the front fence. The offender said to the young person",…, ""Come on I'll give it to you." At that time, the offender had a knife which he was concealing with a tea towel. The knife was about 30 centimetres long. On seeing this knife, the young people," … and …, "went back to the café and about five minutes later they went back to the home as the offender was no longer on the fence. As they approached the house, the offender appeared from a nearby park, started yelling about fighting with them and ran towards them with a knife in his hand." … and … "ran away. This conduct forms the basis of the intimidation charge on the indictment and is on the Form 1." 1. They returned to the café and after discussion, called police, with the result that Mr Alarcon was arrested at about 4.40pm. DNA recovered from a finger nail clipping on his left hand was proven to have come from RH. 1. Syme DCJ considered that assessment of the objective seriousness of the offences required taking into account Mr Alarcon's actions and the consequences of his conduct. Issues that impacted on his mental state leading to or impacting on the commission of his offences also had to be considered, but her Honour found that there was "little evidence of a direct connection". 2. Her Honour noted Mr Alarcon's concessions as to aggravating matters arising under s 21A of the Crimes (Sentencing Procedure) Act to be that he had one entry for a domestic violence related offence; that count 1 was committed in the presence of persons under the age of 18 years; that he had committed the offences in and about the home where he and the victims had been invited and were guests, which she found to be relevant, because they and their friends ought to have been able to have felt safe there. 3. Her Honour considered that the victims' actions in going there, did not place them in particular danger, or should not have done so. She also noted that there was no suggestion that any alcohol consumption by the young people was relevant to Mr Alarcon's offending. 4. Syme DCJ observed that Mr Alarcon had admitted committing his offences while on conditional liberty on s 9 bonds in respect of other domestic violence offences. That would result in custodial sentences being imposed upon him, when he was re-sentenced for the December 2014 offences to which his s 9 bonds related. Her Honour also said that she took care to ensure that the breach of the bonds was not double counted, by being taken into account as an aggravating matter on the other offences. 5. Her Honour further noted Mr Alarcon's concession, that as he was the only adult present there had to some extent been a breach of his position of trust, he having been left in the house when his friend took another young person home. Her Honour found this, however, to have been of minor consequence in this sentencing exercise. 6. Her Honour then turned to the facts relating to the particular offences, observing that count 2, the sexual intercourse offence, involved Mr Alarcon removing the victim from the comfort and safety of her friends; that there had been some contemplation of his actions before he committed them; and that when he removed her from her friends, he intended to sexually interfere with her in some way. By removing her and then locking the door, Mr Alarcon had placed her in an even more vulnerable position. While this could not be used to impose a penalty greater than was appropriate to the matter with which he had been charged, her Honour considered this evidence to be relevant, because this would have increased the victim's fear of Mr Alarcon and her position of helplessness, in the circumstance she had been placed in. 7. Her Honour also considered that there had been some touching before the digital penetration, which had not been momentary and had caused the victim pain. The offence only stopped because she screamed out and sought help that her friends were able to give, when they came to her assistance. 8. Her Honour acknowledged that this offence encompasses a wide range of actions; that account had to be taken of the entirety of Mr Alarcon's actions; and that while digital penetration can be of lesser seriousness than other forms of penetration, in the circumstances of his offence, that did not offer much amelioration on assessment of its objective seriousness. 9. Her Honour concluded that the circumstances, in total, made this a very serious example of the charged offence, in her assessment "more serious than the average circumstance for the offence charged". 10. Her Honour also noted that the victim impact statement revealed the distress which this serious offence had caused the victim, the consequences including physical, psychological and emotional distress which still existed for her and members of her extended family. Her Honour did not take this into account as an aggravating circumstance, but considered it to be a reminder of the very serious consequences of such offences for victims, which explained the high maximum penalty which the Legislature had imposed for this offence. 11. Her Honour then dealt with count 1, the indecent assault offence, committed while young persons were present, which had involved three separate actions. Still, her Honour concluded that it was of less than mid-range seriousness, given the particular actions involved, their timing and the circumstances as a whole, in which they were committed. 12. As to the intimidation offence, count 3, Her Honour observed: "The charge of intimidation is a serious one. The threat with a hammer is a very serious threat and it is clear that the young people who were threatened believed that the offender was quite capable of carrying out that threat. The threat was otherwise against young people and in my view the circumstances of this offence are approximately middle range of seriousness." 1. It was the mistaken reference to count 3 having involved a 30 cm hammer, rather than a 30 cm knife, on which ground one of the appeal is advanced. 2. Her Honour next noted that Mr Alarcon had offered to plead guilty to these offences only after the matter was listed for trial and that the pleas were formally entered several days after it was listed to start. Given that agreement was reached in sufficient time to advise witnesses and the Court that the trial would not be required, her Honour concluded that there should be a 12% discount for what was a very late plea. 3. Her Honour noted the difference between the circumstances of the offences, which go to an assessment of their seriousness and Mr Alarcon's personal circumstances, such as his intoxication, which might explain or influence his conduct, but were not relevant to the evaluation of objective seriousness. 4. Her Honour then turned to Mr Alarcon's case on mitigating factors which he identified should be taken into account, including what was said to be a limited prior record of offending, which included a number of driving offences, including two entries for drunk driving within a 12 year period, during much of which he was overseas and where he had admitted have pursued substantial drug abuse, but did not have a record relating to similar matters. Her Honour also noted his previous domestic violence related offending and concluded that while this record did not aggravate this offending, it deprived him of leniency and established that he was not of prior good character, despite letters from friends and family who considered him to be so. 5. The support Mr Alarcon continued to receive from his family and other community members was accepted as being relevant to his prospects of rehabilitation, and to auger well. But her Honour also took account of the conditions of his parole and the support of counselling thereby available to him, which he had not pursued. Account was also taken of his grant of bail and the residential rehabilitation program which he had then completed, as well as his compliance with conditions which required him to pursue counselling, which he had also complied with. Other independent evidence which established that he had ceased to use drugs and alcohol and had developed some insight into how to comply with such conditions to cease use of the drugs he had been using for many years, was also noted. 6. Account was also taken of Professor Woods' and other reports that Mr Alarcon had been using illicit drugs since late adolescence, his drug of choice since age 18 having worryingly been ice, combined with significant alcohol abuse. Her Honour also noted that it was only after arrest for these offences that he had sought to address his substance abuse, which had already caused him serious problems in his personal life, marriage and in the care of his children. 7. Her Honour noted that Professor Woods described Mr Alarcon's report of symptoms of depression and on interview, his emotional agitation, which he considered were the result of his offending and had not caused it. He also considered that Mr Alarcon's lower cognitive processing on testing at this stage of his life, by comparison to earlier good functioning, could be due to past ADHD or more likely, significant long term substance abuse causing a mild degree of brain injury and head injuries suffered while under the influence of drugs. These problems were unlikely to be able to be remediated. 8. Professor Woods also considered, however, that his risk of reoffending was low, even though there was a possibility of relapse, given his history of substance abuse and if he did not continue to have the support of his family on release from custody. Only abstinence would protect him from re-offending. 9. In the result Syme DCJ concluded that Mr Alarcon's prospects of rehabilitation were guarded, given that he was still in the early stages of a rehabilitation process. 10. In calculating his sentence, her Honour said that she had made an allowance of 50% of the four months that he had spent in rehabilitation or on strict conditions of bail, when calculating his total term of imprisonment. 11. Noting the terms of Mr Alarcon's letter of apology, in which he took responsibility for his actions, understanding that he would be placed on the sex register; prayed for his victim's forgiveness and that his pleas would give them some peace; and what was contained in the Probation and Parole report, her Honour accepted that his remorse was genuine, even though not supported by his direct evidence. 12. Her Honour also took account of Mr Alarcon's personal circumstances, which included support of his family and a good education to year 12; living in London and Spain from 2003 to 2013; and working continuously. She also noted that he had had a 9 year relationship with his wife and they had two young children and another due; and that his illicit drug use was a significant issue in the marriage, but that his wife reported that had now been resolved. 13. The hardship which a significant custodial sentence would cause Mr Alarcon's family was also noted, but her Honour found this to be a normal consequence of criminal offending, which could not be taken into account to ameliorate his sentence. 14. After referring to the purpose of sentencing specified in s 3A of the Criminal (Sentencing Procedure) Act, her Honour observed: "… The Crown submits that general deterrence is an important consideration for offences of this nature. I agree. Adults, usually males, commit offences of this nature with some frequency. They must understand that committing offences of a sexual nature against young people is a serious offence and doing so while under the influence of intoxicants is no excuse, and indeed a very poor explanation. There must be a degree of denunciation from the community on behalf of the community in the sentence that is imposed. Similarly, deterring this offender specifically is a consideration on sentence but one that I take into account acknowledging that he has to some extent acknowledged the seriousness of his offending at least by resolving one of the circumstances relevant to the offending, that is, by addressing his substance abuse issues." 1. Her Honour also noted that in custody Mr Alarcon would be eligible to participate in sexual offenders' treatment programs, given the length of his sentence, as well as drug or substance relapse programs. 2. While s 5 required imprisonment to be used only as a last resort, her Honour concluded that "the threshold had been well and truly crossed by the seriousness of these offences". 3. Her Honour also concluded that the offences for which the s 9 bonds were imposed were objectively serious, involving as they had the use of a weapon and a very frightening threat to his wife, in the presence of his children. Her Honour observed that: "… Witnessing this type of assault on a parent has a significant effect on the development of children of a young age; the behaviour of the offender in those circumstances is therefore also most serious" As noted however, the breach of those bonds forms, in part, an aggravating circumstance with the current offences and I will take that fact into account when considering the issue of accumulation." 1. Her Honour also took into account that the offending which constituted the breaches of the s 9 bonds all occurred on the one day, but involved distinct and separate acts of criminality, which had been committed against three different victims and at different times of the evening. Her Honour concluded that the sentences imposed would be significant, but that they would not all be accumulated, a period of concurrency being required, keeping in mind that the total sentence should not be a crushing one, giving Mr Alarcon no prospect or reason to continue with his rehabilitation. 2. A finding of special circumstances was also made to reflect the conclusions which her Honour had reached as to accumulation and pursuit of rehabilitation. Ground 1 - objective seriousness of the s 13(1) offence – alleged mistaking of the facts 1. There was no issue between the parties that when explaining the conclusions which Syme DCJ had reached as to the objective seriousness of count 3, the s 13(1) intimidation offence, her Honour erred when referring to the offence having involved a 30 cm hammer, when it had in fact involved a 30 cm knife. 2. On sentence there had been no issue that Mr Alarcon's threat with the hammer in the garage, when he yelled "everyone get the fuck out", was the subject of the of the Form 1 intimidation offence and that his later threat outside the home when he ran at two of his victim while holding the knife, was the subject of count 3, as her Honour confirmed during the Crown's submissions. That was correctly reflected, when earlier in her judgment, her Honour outlined the agreed facts. 3. It was when her Honour turned to deal with the objective seriousness of count 3, that she mistakenly referred to the 30 cm lump hammer involved in the Form 1 offence, rather than to the 30 cm knife, involved in that count. Neither counsel drew this error to her attention at the time, either because it was not then noticed, or if it was, because counsel appreciated that her Honour had merely misspoken, when at that point of her oral judgment, she referred to the hammer, rather than to the knife 4. It has been repeatedly said that on an appeal such as this, a pedantic approach should not be adopted to reasons delivered as they were in this case, shortly after the parties have made their submissions. Such reasons are not to be "parsed and analysed": R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [48]. 5. If the parties had noticed the erroneous reference to the hammer when her Honour's judgment was delivered, the word would undoubtedly have been corrected. Correcting what her Honour there said about the seriousness of count 3 to refer to the knife, would have accurately described its seriousness, namely: "The charge of intimidation is a serious one. The threat with a knife is a very serious threat and it is clear that the young people who were threatened believed that the offender was quite capable of carrying out that threat. The threat as was otherwise against young people and in my view the circumstances of this offence are approximately middle range of seriousness." 1. Contrary to Mr Alarcon's case on appeal, the inference which her Honour drew, namely, that the young people who were threatened when Mr Alarcon ran shouting at them while holding the knife they had earlier seen him holding, while he was sitting on the fence, caused them to flee from him back to the café, where they called for help from police, believing that he was capable of carrying out the threat implicit in his behaviour, was well open. Indeed, that was evidenced by the very fact that it was then that the two victims returned to the café and called police, having not been able to reach their friends who were still at the house, who had earlier called to say that they were scared and with Mr Alarcon in the vicinity, carrying a knife. 2. On the agreed facts there can thus be no question either that the threat he posed at this point of his criminal spree that night was serious, or that the young victims who ran from him, believed that he was capable of acting on the threat which he undoubtedly then posed. 3. That earlier, when he had threatened them with a hammer in the confined space of the garage and yelled at them to get out, when they were only two and a half metres away from him does not mean that what he later did with the knife, was less serious, or not properly to be described in the way her Honour plainly intended, when discussing the objective seriousness of count 3. 4. In those circumstances, I am satisfied that her Honour's inadvertent misstatement when she referred to the hammer at this point of her judgment, does not establish that her Honour erred in the conclusions which she reached as to the seriousness of count 3, which were properly reflected in the sentence imposed on Mr Alarcon, to which it will be necessary to return. 5. The case advanced for Mr Alarcon was also that this error not only had an impact on the sentence which her Honour imposed for count 3, but given the accumulation involved in the sentences imposed, it also impacted on the sentence imposed for count 2, with the result that Mr Alarcon had to be resentenced. 6. I am also satisfied that this cannot be accepted. 7. That her Honour's misstatement had no operative effect on the conclusions which she reached about the sentence imposed for count 2, is also apparent from the concurrency and accumulation involved in the sentences imposed for all three counts, to which I will return. 8. This ground of appeal must thus be dismissed. Ground 2 – the sentences for counts 2 and 3 were manifestly excessive 1. There is no issue between the parties as to the principles which apply when a ground such as this is advanced. They are as discussed in Hughes v R [2018] NSWCCA 2 at [86]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust. See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]." 1. This ground was advanced by Mr Alarcon on the basis that her Honour's view of the objective seriousness of count 2 was erroneous and outside the sentence properly available for this offence: Ramoss v R [2015] NSWCCA 313 at [41]. As there discussed at [36], however, by reference to what Spigelman CJ observed in Mulato v Regina [2006] NSWCCA 282 at [37], "the question for the appellate court must be whether or not the particular characterisation which the sentencing judge gave to the circumstances of the offence was open". The parties' cases on sentence 1. In considering this count, attention must be paid to the cases which the parties advanced on sentence. 2. Then there was no issue that a sentence of full-time imprisonment would be appropriate. 3. In Stewart v R [2012] NSWCCA 183 it was observed at [56] that if counsel at first instance barely refers to a subjective factor that may be open on the evidence, or does not to refer to it at all, and the sentencing judge follows that lead in ex tempore remarks on sentence, an appeal to this Court founded on that approach by the sentencing judge will seldom succeed, because that is not "the occasion for the revision and reformulation of the case presented below": Zreika v R [2012] NSWCCA 44. 4. In Zreika it was observed at [81] that a sentence appeal such as this involves the review of the exercise of a discretionary judgment that is not the occasion for the revision and reformulation of the case presented below. Accordingly, the Court will not lightly entertain arguments that could have been put, but were not advanced on the plea "and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made". Further: "82 In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may "render a serious injustice" if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance." 1. In DL v The Queen [2018] HCA 32 it was also said at [38], that "the interests of justice will generally not be served by permitting either party to make a new or different case on the hearing of the appeal". 2. There is no reason for adopting a different approach when, as in this case, what is raised by a ground of manifest excess, is that the assessment of the objective seriousness of a particular count, here count 2, was outside the permissible range. Comparable cases, raised for the first time on an appeal, will not provide a proper basis for submitting that the sentence was manifestly excessive. 3. Before Syme DCJ, contrary to Mr Alarcon's case advanced in written submissions on appeal, that the Crown had submitted that count 2, the s 66C offence was "significant", that was the case actually advanced for Mr Alarcon, although what that was intended to convey, is not clear. The Crown's case was that it fell within the mid-range: "Your Honour will note the offence to which the offender has pleaded guilty, and to which the Crown have accepted is 66(c)(3) - that's an offence that does not require the proof of lack of consent and knowledge of it. That would increase the seriousness of the offence to a 61(j) offence - which would be sexual intercourse without consent. The plea is taken, and the Crown's submission is your Honour would sentence on the basis that while RH was not consenting, the Crown cannot prove beyond reasonable doubt that the offender knew that in the required sense. So, the fact that she wasn't consenting is a matter that your Honour can take into account, but the submission of the Crown is your Honour should be careful not to make any finding beyond that - and there's no submission that your Honour should make that further finding as to his knowledge. HER HONOUR: I will be careful to side step the De Simone problems. That is part of the circumstances of the offence in the same way that, as you say, planning is. HARRISON: Yes. HER HONOUR: It's part of what happened. HARRISON: Yes. The offence itself is digital penetration. It lasted for about 5 minutes, so it's not momentary and it's in circumstances where RH was in an extremely vulnerable position. There was pain caused, because RH had a tampon in at the time - your Honour can see that in the facts. That, in the Crown's submission, also increases the seriousness of the matter. Another matter which is relevant to the objective seriousness of that offence is, it only ended when RH's friends heard her screams and they came to assist. And in fact, one of them shoulder charged the locked door down - that's why the offence ended." 1. For his part Mr Alarcon then accepted that count 2 was the most serious of the offences for which he was being sentenced. 2. While in his counsel's written submissions on sentence reference was made to various authorities and sentencing statistics, there was no reference to any cases said to involve comparable offending and thus relevant to the sentence to be imposed upon him. What was submitted included: "In the 63% of recorded cases where a full-time custodial sentence was imposed, the total sentence imposed was within the range of between 6 months and 6 years, with a median total sentence of approximately 3 years. The non-parole period imposed was within the range of between 6 months and 4 years, with a median non-parole period of approximately 1 year 6 months." 1. Further, that: "An offence of non-consensual sexual intercourse by digital penetration is generally considered to be less serious than an offence of penile penetration, but each case depends on its own facts: R v Hibberd (2009) 194 A Crim R 1; R v Da Silva (30/11/95) NSWCCA. However, there is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse." The sentencing judge's findings 1. Syme DCJ concluded that while s 66C(3) offences encompass a wide range of actions; that in assessing the objective seriousness of count 2, account had to be taken of the entirety of Mr Alarcon's actions. Further, that while digital penetration can be of lesser seriousness than other forms of penetration, in the circumstances of his offence, that did not offer much amelioration on assessment of its objective seriousness. On the evidence her Honour thus concluded that count 2 was "more serious than the average circumstance for the offence charged". 2. That conclusion was reflected in the sentence imposed, which had to be increased, to take into account the two Form 1 offences. 3. There was no error in that approach to the assessment of the objective seriousness of this offence, it not attracting a standard non-parole period and this assessment being "quintessentially an evaluative exercise to be undertaken by the sentencing judge": Mulato at [43] and [46]. Objective seriousness 1. On appeal her Honour's conclusion as to the objective seriousness of count 2 was submitted in written submissions to have involved a finding "well in excess of that contended for by the Crown, which had correctly identified its objective seriousness to be significant". As I have explained, that was not the Crown's case on sentence, but the case then advanced for Mr Alarcon. 2. The case advanced for Mr Alarcon on appeal was quite different to that advanced on sentence. Namely, that objectively, count 2 fell at the lower end of objective seriousness and that the result of her Honour's incorrect conclusion as to the seriousness of this offence was that the sentence imposed fell outside the permissible range, with the result that the sentences for both counts 2 and 3 were manifestly excessive. 3. That submission may also not be accepted. 4. Not only was her Honour's conclusion about the objective seriousness of count 2 well open, account must be taken of the concurrence in the sentences imposed for count 1, 2 and 3, to which I will return. The result of her Honour's approach was that the sentence imposed for count 3 was made wholly concurrent with that imposed for counts 1 and 2. Given the seriousness of all of the offending taken into account in arriving at those sentences, that was a favourable outcome for Mr Alarcon. 5. It was also contended that her Honour did not take proper account of matters relevant to the assessment of the seriousness of this offence, discussed in R v Hibberd (2009) 194 A Crim R 1; [2009] NSWCCA 20. There it was observed at [56]: "Relevant considerations in determining where on the scale of seriousness an offence contrary to s 61I of the Crimes Act lies include "the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation…" See Regina v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) per Mahoney JA at 10-11. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, Regina v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) per Grove J at 3, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of the forced intercourse is an important factor it is not to be regarded as the sole consideration." 1. The submission that her Honour failed to take proper account of any relevant matter arising from the agreed facts cannot be accepted. Rather, her Honour carefully considered the evidence in assessing the objective seriousness of count 2. Her Honour's consideration involved Mr Alarcon's violence; the physical hurt he inflicted on his young victim; the form of the intercourse he forced upon her, despite her protests, it not being momentary, but lasting for about 5 minutes and only being brought to an end when her friends came to her aid; and the humiliation and psychological harm which she suffered as a result. 2. That is confirmed by the account which her Honour also took of the breach of trust involved in Mr Alarcon's offending, he being the only adult then present; the limited planning which had been involved in this offence; how he had removed the victim from her friends; and the position in which he placed her, when he locked the garage door, thereby increasing her fear, given her obvious vulnerability in that situation. 3. These were all relevant objective facts which had to be taken into account in determining whether the offence fell on the spectrum of seriousness of such offending: Ibbs v The Queen (1987) 163 CLR 447 at 452; [1987] HCA 46. 4. Mr Alarcon also contended on appeal that relevant to the assessment of the seriousness of count 2 included that it was a single offence, involving digital penetration, which had not been the result of a process of grooming and was committed without violence on a person aged almost 15, in the very middle of the age range encompassed by s 66C(3). It was also argued that given Mr Alarcon's strong subjective case, it was apparent that the sentence imposed upon him was manifestly excessive, and plainly unjust. 5. Her Honour's conclusion that Mr Alarcon's digital penetration was more serious than the average offence of this kind, was submitted on appeal to have been made "in ignorance of the multitude of factual circumstances which could constitute" such an offence. The erroneousness of this conclusion was also submitted to be demonstrated by asking "what offending could have been worse?": subs [38]. Further, had the penetration involved penile/vaginal intercourse, or anal intercourse, it would have been "of a substantially more serious order" and that if it had it involved violence or failure to use of a condom, thereby exposing the victim to the risk of actual pregnancy, the offending "would have been more serious again": at [39]. 6. The appeal so advanced simply cannot be accepted. Her Honour did not err in her assessment of Mr Alarcon's subjective circumstances, which were also very carefully considered. Further, as also discussed in R v Hibberd, there can be no general assumption that digital sexual intercourse is less serious than penile sexual intercourse: at [21]. 7. Further, as was acknowledged in written submissions advanced for Mr Alarcon on sentence, there is no prima facie assumption that digital penetration is generally less serious than other forms of penetration, which is but one factor: R v Hibberd at [56]. Nor does the fact that it was not penile penetration mean that the offence falls below the mid-range: R v King [2009] NSWCCA 117 at [36]. 8. Rather, the objective seriousness of the particular offence must be assessed in light of the facts and circumstances disclosed by the evidence, because the sentence imposed must be proportionate to the offence committed: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [8]. 9. This aspect of the case advanced for Mr Alarcon simply has no basis and thus cannot be accepted. Sentences in other cases 1. Manifest excess was also sought to be established by the reference to authorities not relied on, on sentence. Reliance was thus placed on sentences imposed in other cases which were found to have fallen above and below the mid-range, some involving digital penetration and others other types of penetration. 2. Manifest excess cannot, however, be established simply by pointing to other cases where lower sentences have been imposed. That is because by pointing at sentencing statistics and other decided cases, it is always possible to identify sentences imposed on other offenders, which are either more or less lenient: Vandeventer v R [2013] NSWCCA 33 at [45]. As discussed in Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 [2014] HCA 2 at [40]-[41]: "40 The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. 41 As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect". [footnotes omitted] 1. Mr Alarcon submitted on appeal that R v MD [2018] NSWDC 156 was the most recent analogous case, which had similar objective features. This submission may not be accepted, because that offending was very different to what here arose for consideration. Both that offender's personal circumstances, he being aged only 18 and the circumstances in which he committed his offences, were also very different. 2. In that case, one count of digital penetration of the victim's vagina lasted only for a few seconds and was found to have fallen in the middle of the range between low and mid-range. Another count involving digital penetration of the victim's vagina with two fingers, during a course of offending which also involved vaginal/penile penetration, was found to have fallen just below mid-range. 3. It is apparent that these were objectively less serious offences than that for which Mr Alarcon was sentenced, given not only the length of time the penetration lasted, but also the pain and humiliation which he caused his victim and the considerably different circumstances in which it occurred. As discussed in as discussed in R v Wilkinson (No 5) [2009] NSWSC 432 at [61]: "Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime….". 1. Mr Alarcon's offence was not, as was submitted, an isolated offence of sexual intercourse involving digital penetration alone, which "must fall in the lower range of objective seriousness". It was a serious offence committed by Mr Alarcon during his pursuit of a series of other offences which he committed that night, at a time when he was on a bond for his other offending. Count 2 was certainly the most serious of his offences, given how he took his victim to the garage where he locked the door and only stopped his persistent painful and humiliating digital penetration, despite her ongoing protests, when her friends broke down the door. 2. In arriving at his sentence for this offence account also had to be taken of the fact that he was then on conditional liberty and that there were two Form 1 offences to be taken into account, which had to increase the sentence imposed upon him. 3. Reliance was also placed on PB v R [2016] NSWCCA 258; R v Wright [2017] NSWCCA 102, West v R [2017] NSWCCA 306 and R v Nelson [2016] NSWCCA 130, but the basis upon which it was to be concluded that the objective seriousness of the offending involved in those cases, was relevant to the assessment of the seriousness of count 2, is not apparent. 4. Further, in PB it was concluded that the indicative sentences given were inadequate, but the appeal was dismissed in the absence of a Crown appeal. In Wright manifest inadequacy was established, but the residual discretion was exercised and the appeal dismissed and in Nelson, where the circumstances of the offending were also significantly different, there the sentence appeal was allowed and the sentence was increased. 5. While the submissions advanced on sentence did not refer to cases said to have involved comparable offending, they did rely on sentencing statistics. On appeal it was observed that the sentence imposed for count 2 fell "toward the top of the statistical range" for such offending, but of itself that does not establish either that it fell outside the range, or that it was manifestly excessive. Such statistics establish a range of sentences actually imposed in the past, for other offending: Kresovic v R [2018] NSWCCA 37 at [43]-[44]. The sentences her Honour imposed for counts 2 did not fall outside that range. The sentences for counts 2 and 3 1. The sentences imposed for counts 2 and 3 properly reflected her Honour's conclusions about the objective seriousness of the offences, conclusions which were well open on the evidence, as well as the views which her Honour reached about Mr Alarcon's subjective circumstances and the other relevant matters which she had to take into account. 2. It must be borne in mind that the total sentence imposed for counts 1, 2 and 3 and the breach of bond offences was 5 years and 8 months with a 3 years, 10 month non-parole period. That reflected a starting sentence of 6 years, 6 months, before application of the 12.5% discount and the finding of special circumstances. 3. The non-parole periods imposed for each offence had to reflect the minimum period that justice required Mr Alarcon to serve in custody for that offence, before being eligible to be released on parole, given the nature and seriousness of his offending: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [57]. That period had to be determined having regard to all the elements of punishment, including rehabilitation, the objective seriousness of his crimes and his subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 628–629; [1974] HCA 26. 4. In arriving at Mr Alarcon's sentence for counts 2 and 3 her Honour also had to take into account that count 2 attracted a maximum penalty of 10 years imprisonment and count 3 a maximum penalty of 10 years and a standard non parole period of 8. In the case of count 2, the sentence which would have otherwise been imposed, had to be increased to reflect the account taken of the two Form 1 offences, which her Honour concluded were relatively minor, in comparison.. 5. The sentence imposed for count 3 was 2 years and 6 months, with a non-parole period of 1 year and 9 months. It was, however, made entirely concurrent with the sentences imposed for counts 1 and 2. The sentence imposed for count 2 was 5 years and 8 months, with a non-parole period of 3 years and 10 months, taking into account the two Form 1 offences. 6. Given the total sentence imposed, however, that her Honour's application of the principle of totality and the resulting accumulation and concurrence of the individual sentences, was favourable to Mr Alarcon, is apparent. Her Honour explained the reasons which had led her to that outcome. 7. The result of her Honour's approach was not only that the non-parole period for count 3 was made entirely concurrent with those imposed for counts 1 and 2, but the sentences were accumulated in such a way that the non-parole period which is solely referable to count 2, the most serious of Mr Alarcon's offences, was a period of 2 years and 4 months. 8. When considered in the context of the total non-parole period imposed for all of Mr Alarcon's offending of 3 years and 10 months, that outcome does not leave open the conclusion that the sentences imposed upon him for either count 2 or 3 was manifestly excessive, or any just basis upon which his sentence could be reduced, given the requirement that the non-parole period must reflect the minimum period that justice requires him to serve in custody for his offences. 9. In the result, this ground of appeal must also be dismissed. Orders 1. For these reasons, the orders I would make are: 1. Leave to appeal granted. 2. Appeal dismissed. 1. FAGAN J: I agree with Schmidt J. With respect to ground 2, asserting that the sentences for counts 2 and 3 are manifestly excessive, I add the following. 2. The main component of the applicant's overall prison term is the sentence imposed for count 2, the digital sexual intercourse with a child between 14 and 16 years contrary to s 66C(3) of the Crimes Act. The three offences on the Form 1, which themselves were not insignificant, contributed to the sentence on this count, of 5 years and 8 months with a non-parole period of 3 years and 10 months. Even with the contribution from the Form 1 matters it was a stern penalty for count 2, especially as the sentence was arrived at after deducting 12% for the applicant's late plea. 3. However I do not consider the sentence was manifestly excessive. Count 2 was an appalling crime. The complainant was just short of 15 years. She was enjoying a party with friends of her own age. The applicant, a man of 37 years at the time, was a guest at the house. When he found himself temporarily the only adult present he should have seen himself in a protective and supervisory role with respect to the younger people. Instead he took the opportunity to isolate this teenage girl in the garage, lock the door and forcefully molest her, causing fear, pain and violation. He persisted for five minutes over her protests and cries. The complainant had to be rescued from this sexual violence by 17-year-old boys. This was a serious contravention of s 66C(3), which carries a 10 year maximum. 4. Taking into account these essential features of the objective seriousness of count 2 and all the other matters to which the learned sentencing judge had regard, I do not consider the sentence on this count was beyond her Honour's discretion. I consider the sentence for count 3 and the manner in which commencement dates for individual sentences were staggered were also within the latitude available to the sentencing judge. ********** 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: 20 December 2018