Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tindall v R [2019] NSWCCA 136 Hearing dates: 15 March 2019 Date of orders: 02 August 2019 Decision date: 02 August 2019 Before: Simpson AJA at [1] Bellew J at [27] Campbell J at [36] Decision: (1) Leave to appeal against sentence granted; (2) Appeal dismissed. Catchwords: CRIMINAL LAW – Appeals – objective seriousness – principle of proportionality – whether sentencing judge erred in the assessment of the objective gravity of the offences – whether sentence manifestly excessive – sentencing for standard non-parole period offences SENTENCING – Absence of an aggravating factor does not diminish gravity of offence – requirement of an assessment based on the facts of each case – no hierarchy of sexual offences according to type of penetration or sexual connection – each offence compounded by eventual abandonment of complainant – whether aggregate sentence imposed by trial judge too severe – whether sentence imposed was unreasonable or plainly unjust – held sentence within bounds of sentencing discretion – held the appeal should be dismissed. Legislation Cited: Crimes Act 1900 (NSW), ss 61HA, 61J(1), 61M(1) Crimes (Appeal and Review) Act 2001 (NSW), s 68(A) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), Div 3 of Pt 3, Div 1A of Pt 4 Cases Cited: House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Dodd (1991) 57 A Crim R 349 R v Gebrail (Unrep, 18/11/94, NSWCCA) Salafia v R [2015] NSWCCA 141 Veen v The Queen (No 2) (1988) 164 CLR 465 Category: Principal judgment Parties: Scott Tindall (Applicant) Regina (Respondent Crown) Representation: Counsel: S. Fraser (Applicant) K. Ratcliffe (Respondent) Solicitors: Heffernan Legal (Applicant) Solicitor for Public Prosecution (Respondent Crown) File Number(s): 2015/152129 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Jurisdiction Date of Decision: 25 July 2017 Before: Judge Wass SC Judgment 1. SIMPSON AJA: I have had the advantage of reading in draft the judgment of Campbell J, in which the relevant facts are stated. The following assumes a familiarity with the facts as so stated. 2. I am unable to agree with Campbell J that the sentencing judge erred in the manner identified, by conflating the assessment of the objective gravity of the two offences. What her Honour said was: "I find that both offences are slightly above the mid-range of offending for offences of this kind given the matters that I have already gone to." (italics added) 1. The "matters that I have already gone to" was a comprehensive and detailed statement of the facts her Honour found in which she carefully delineated the two offences. 2. In fact, the ground of appeal pleaded in this respect concerned the assessment of the objective gravity of the two offences. It was framed as follows: "1. The Sentencing Judge erred in her assessment of the objective gravity of the offences." 1. It was not contended that her Honour erred by conflating the two offences. So much is apparent on examination of the written submissions which did not assert error by conflation, but, rather, asserted that the findings that each offence was "slightly above the mid-range of offending" of its kind were not open. 2. With respect to the offence of aggravated sexual intercourse without consent (s 61J of the Crimes Act 1900 (NSW)), attention was drawn to the absence of certain factors that, if present, would have aggravated the offence. These included: * that the offences were not accompanied by threats; * that only one, not multiple, aggravating features existed; * that the force used was "relatively speaking, limited"; and * that the applicant did not ejaculate. That is not a correct approach. 1. It reflects an approach that has repeatedly been rejected by this Court dating back before 2009, pithily expressed by Grove J in Saddler v R [2009] NSWCCA 83; (2009) 194 A Crim R 452, when his Honour said: "3 It is a well established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse." That was repeated by R A Hulme J in Bravo v R [2015] NSWCCA 302 and in Mills v R [2017] NSWCCA 87, the approach has also been rejected by Hoeben CJ at CL in R v CTG [2017] NSWCCA 163 and by Wilson J in Faehringer v R [2017] NSWCCA 248. 1. It may be stated again: the absence of an aggravating factor does not diminish the gravity of an offence, which must be assessed on its own facts. In Mills, R A Hulme J said (with the concurrence of Leeming JA and Beech-Jones J): "57 … The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]." 1. The various considerations mentioned were all features of the offence, which the sentencing judge took into account in her assessment. 2. Finally, in another submission that I would reject, it was suggested that an offence involving an act of forced fellatio is somehow less serious than offences involving anal or vaginal penetration. 3. "Sexual intercourse" is defined in s 61HA of the Crimes Act as meaning: "(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or (c) cunnilingus, or (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c)." 1. There is nothing in this definition which indicates that any form of sexual intercourse (without consent) is more or less serious than any other form. There is no "hierarchy" of sexual offences ranked by the level or degree of seriousness according to the particular kind of penetration or sexual connection: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [24]. In R v Gavel [2014] NSWCCA 56, this Court said: "97 … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34]." See also Doe v R [2013] NSWCCA 248 at [54]ff and Bravo v R [2015] NSWCCA 302. 1. The immediate circumstances of the s 61J offence included the following: the applicant took the complainant to a dark and secluded location under the pretext of taking her to a taxi rank. He forced her head onto his erect and unprotected penis. The complainant resisted, the applicant persisted in applying force. Despite her continued resistance, the applicant attempted to put his penis in her mouth about 30 times. He ordered her to squeeze his testicles, and, over her expressed objection, told her to do so tightly. She complied out of fear for her safety. 2. There was, in my opinion, no error that disadvantaged the applicant in the assessment of this offence as "slightly above mid-range". 3. The same applies to the s 61M offence of aggravated indecent assault. The applicant committed that offence immediately after he had inflicted on the complainant the humiliation and degradation just described, in the same dark secluded location from which the complainant could not hope for rescue. She was completely at his mercy. He compelled her to hold her breasts together while he spat between them and attempted some kind of masturbatory stimulation of his penis between her breasts. 4. I find no error in the sentencing judge's assessment of this offence also as "slightly above mid-range". 5. Each offence was compounded by what happened immediately after. The applicant walked away, leaving the complainant where she was. She alighted from her wheelchair and lay on the ground, crying. The applicant turned, looked at her, and walked off. While it might be argued that the offences ceased when the applicant began to walk away, and the assessment of the objective gravity of the offences is confined to the acts of forced fellatio and indecent assault, this behaviour casts light on the applicant's attitude to his offending and to the complainant, which was, throughout, of callous indifference. The applicant simply abandoned his victim, helpless and distressed, on the ground. 6. I would reject ground 1 of the proposed appeal. That makes it necessary to consider ground 2, which asserts that the sentence is manifestly excessive. 7. In support of that ground the Court's attention was directed to two cases, which, presumably, were said to be broadly comparable. The first was Mooney v R [2016] NSWCCA 231. The offender was a carer in a nursing home. He committed offences of aggravated sexual assault against two victims, one of whom was 82 years of age, had suffered a stroke and could not speak and could barely walk. The other was a younger victim, who suffered a severe disability, was unable to speak and had limited control of her movements. Each offence involved digital anal penetration, and, on one occasion, penile/anal penetration for a brief period. 8. The offender was charged with two counts of aggravated sexual assault; two charges of aggravated indecent assault were taken into account pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act). 9. The offender was initially sentenced to an effective sentence of imprisonment for 11 years and 6 months with a non-parole period of 7 years and 6 months. This incorporated a reduction by reference to pleas of guilty. After appeal, the sentence was reduced to a total effective sentence of imprisonment for 9 years with a non-parole period of 6 years. That sentence incorporated an increased reduction referable to the plea of guilty of 20 per cent, and a further (unquantified) reduction by reason of assistance provided by the offender to the authorities. Accordingly, the starting point before reduction was a sentence of 11 years and 3 months with a non-parole period of 7 years and 6 months (the Court having found special circumstances pursuant to s 44(2) of the Sentencing Procedure Act). 10. The basis for the reduction was the allowance to be made for the offender's pleas of guilty. There is nothing in the judgment to indicate that the initial sentence was manifestly excessive. 11. The second case to which reference was made was Panchal v R [2014] NSWCCA 275. In that case, the offender rubbed the complainant's breasts, inserted his hands into her pants and held his erect penis near her groin. He inserted his finger into her vagina. He was charged with one count of aggravated sexual assault, and three counts of aggravated indecent assault. The complainant was a young woman with a moderate intellectual disability; cognitive impairment was the circumstance of aggravation. The offender was the guard on a train on which the victim travelled from her special school. The offences were committed in the guard's van of the train. 12. At first instance the offender was sentenced to imprisonment for 5 years with a non-parole period of 3 years. After a Crown appeal, he was sentenced to imprisonment for 8 years with a non-parole period of 5 years and 6 months. It is specifically to be noted that that sentence was imposed taking into account the now discarded principle that restraint ought to be exercised in re-sentencing after a successful Crown appeal (see, now, s 68A of the Crimes (Appeal and Review) Act 2001 (NSW)). 13. In the present case, I accept that the aggregate sentence imposed was a severe one and it would have been open to the sentencing judge to have selected a lesser sentence. However, that is not the test to be applied. The duty of this Court is to determine whether the sentence imposed lies outside the bounds of the exercise of a proper sentencing discretion: whether the sentence imposed was unreasonable or plainly unjust. I am not of that opinion. 14. In my opinion, while leave to appeal against sentence should be granted, the appeal should be dismissed. 15. BELLEW J: I have had the advantage of reading in draft the judgments of Simpson AJA and Campbell J. I gratefully adopt Campbell J's recitation of the facts of the offending. 16. At [73] Campbell J concluded that the sentencing judge fell into an error of principle by assessing the objective seriousness of the two separate offences as though they were one. In reaching that conclusion, his Honour emphasised the fact that the offences were obviously different, and carried different maximum penalties and different standard non-parole periods. 17. I am unable to agree that such an error has been established. The sentencing judge was clearly aware of the different maximum penalties and standard non-parole periods, having specifically cited them at the commencement of her reasons. Moreover, when those reasons are read as a whole, I am not persuaded that her Honour conflated her assessment of the objective gravity of the two offences. As Simpson AJA has pointed out (at [2]-[3]) her Honour engaged in a comprehensive and detailed recitation of the facts of the offending, in which she carefully separated those in respect of Count 1 (commencing at ROS 4) from those in respect of Count 2 (commencing at ROS 5). 18. For the additional reasons advanced by Simpson AJA, and bearing in mind the terms in which ground 1 was framed, there was no error in her Honour's assessment of the objective seriousness of either offence. 19. In these circumstances, I would reject ground 1. 20. For the reasons outlined by Simpson AJA, I would also reject ground 2. The prescribed maximum penalties, and the prescribed standard non-parole periods, which were applicable to these offences reflect the Parliament's view of their seriousness, and represent important statutory guide posts in the sentencing process. 21. Further, and leaving aside the error asserted in ground 1 (which I have found has not been made out), no issue was taken with any of the factual findings made by the sentencing judge when imposing sentence. 22. In all of those circumstances, I am not persuaded that the aggregate sentence imposed was unreasonable or plainly unjust. 23. I agree with the orders proposed by Simpson AJA. 24. CAMPBELL J: The applicant seeks leave to appeal from the aggregate sentence imposed upon him in the District Court at Sydney by her Honour Judge Wass SC on 25 July 2017. 25. Following trial by jury, the applicant was found guilty of the two sexual offences on the indictment, namely: Count 1: Aggravated sexual intercourse without consent. The circumstance of aggravation was that the victim has a serious physical disability. The offence is contrary to s 61J(1) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years imprisonment; Count 2: Aggravated indecent assault. Again the circumstance of aggravation was that the victim has a serious physical disability. This offending is contrary to s 61M(1) of the Crimes Act 1900 and carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 5 years. 1. The applicant was sentenced to an aggregate sentence of 11 years imprisonment having a non-parole period of 8 years and 3 months commencing on 21 May 2015 and expiring on 20 August 2023 with an additional term of 2 years and 9 months expiring on 20 May 2026. The indicative sentences were as follows: Count 1: Imprisonment for 10 years with a non-parole period of 7 years and 6 months; Count 2: Imprisonment for 3 years with a non-parole period of 2 years and 3 months. As may be evident from the indicative sentences, her Honour declined to find special circumstances. 1. It is perhaps convenient to record here that the victim's disability resulted from a below the knee amputation of her right leg, burns to 30 percent of her body and her resulting very limited mobility requiring the use of a wheelchair. The learned primary judge found that the victim was not able to stand up without support. She required a wheelchair for movement and was only able to move herself in and out of the wheelchair with difficulty. The grounds of appeal 1. The applicant advances two grounds of appeal: 1. the sentencing judge erred in her assessment of the objective gravity of the offences; 2. The sentence is manifestly excessive. The nature of the offending 1. The applicant pleaded not guilty at his trial, but he did not deny the acts of sexual intercourse underpinning Count 1, or the acts of a sexual nature underpinning Count 2. He claimed the sexual intercourse and other contact was consensual. 2. The offending occurred on 9 May 2015. The victim was then homeless and accustomed to sleeping around the area of Broadway in the City of Sydney. 3. On 8 May 2015, the victim travelled to St Marys by train to visit her sister. She had been accompanied from St Marys railway station to her sister's home by a person, the sentencing judge described as a "Good Samaritan". Several attempts to contact her sister were unsuccessful and the Good Samaritan offered to accompany her back to the station. 4. At about 6:30 p.m. the Good Samaritan offered to buy the victim a drink and they attended a hotel. While at the hotel the Good Samaritan and acquaintances of his made inquiries about the availability of accommodation for the victim unsuccessfully. 5. After some hours at the hotel, the victim decided to return to the city. It was now nearly midnight. She made her way to St Marys railway station where she first saw the applicant. He appeared to have difficulty walking in a straight line. He assisted the victim to reverse her wheelchair through the ticket barrier. He pushed her wheelchair into the station lift, pressing the button for her descent. He accessed the platform by the stairs. As they waited on the platform for the train the victim informed the applicant in conversation that she was intending to go back to Central Station and she was currently homeless. The applicant said that the victim could stay at his place and, after some hesitation, she agreed. At about this time the Good Samaritan arrived at the platform, spoke to the victim and ascertained that she did not wish to go home with the applicant. The Good Samaritan relayed this information to the applicant who said, "That's fine". 6. When the train arrived the Good Samaritan assisted the victim into one carriage while the offender boarded another. The Good Samaritan did not join the train. When the train left the station the applicant walked through the connecting doors into the victim's carriage. He sat down opposite and spoke with her. He renewed his offer for her to stay with him and she was again hesitant. She said she had decided to leave the train at Mt Druitt. The applicant lived in Mt Druitt. 7. When the train stopped at Mt Druitt, the applicant obtained the assistance of the train guard who produced a ramp to enable the victim to wheel herself from the carriage onto the platform. The applicant pushed the victim's wheelchair from the station and out onto the street. The victim asked the applicant to take her to the taxi rank and he said, "I am pushing you there". 8. In fact, the applicant diverted from the footpath into a secluded darkened pathway running down the side of the Mt Druitt Library. The victim asked what was happening, but the applicant did not reply. He sat on a concrete wall facing the victim, exposed his penis and asked the victim for oral sex. His penis was erect and he was not wearing a condom. The victim refused and the applicant forced the victim's mouth over his penis by pulling her head down. She tried to pull away, but the applicant grabbed her hair and forced her mouth over his penis again. According to the victim this occurred around 30 times while she tried to pull her head away, telling the offender, "I can't do this". 9. The applicant also demanded that the victim tightly squeeze his testicles. He humiliated her by speaking to her about the act he had engaged her in. All this continued for some time but he was unable to ejaculate. 10. The applicant then attempted to achieve finality by exposing the victim's chest, spitting on it, presumably for lubrication, and attempting to masturbate his penis by rubbing it between her breasts for a period of time. The applicant did not ejaculate. 11. Having adjusted his attire, the applicant walked away down the pathway abandoning the victim. She lay on the pathway crying. The applicant turned and looked at her, but kept going. CCTV footage showed the applicant left the library area about 2am. They had been there for around 1 hour. He walked to the taxi ramp and caught a taxi to his home in Oakhurst. 12. It took some time for the victim to attract the attention of a cleaner in the library to her plight. She reported the sexual abuse to a male cleaner, who called an ambulance. She complained of having been raped to the ambulance officers who formed the view that she was withdrawn and upset. A DNA swab taken at the hospital from between the victim's breasts served to identify the offender who was arrested on 21 May 2015. He told police, "I've done nothing wrong, I've done nothing to be proud of either". He claimed to have had consensual oral sex and admitted touching the victim's breasts with his penis, but denied spitting on them. Assessment of objective seriousness 1. Her Honour observed that the offences "are serious … as revealed by the maximum penalties and the standard non-parole periods" (White Book (WB) 10). She assessed the experience as frightening for the victim. While bearing in mind that the applicant had been convicted of an aggravated form of the offence because of the victim's serious physical disability, her Honour considered other aspects of vulnerability were aggravating factors. They were her homelessness; that she was travelling alone at night; and her reliance on the applicant to conduct her safely to a taxi rank. Her Honour found the applicant exploited this vulnerability. 2. She assessed that the offending involved a degree of planning "where the offender took the opportunity to offend where it was presented to him, where he saw that the [victim] was in position where he could take advantage and where he considered he would not be caught" (WB 10). 3. Her Honour took into account "that these offences were otherwise isolated acts. I take into account the nature of the acts themselves" (WB 11). She referred to the forceful and prolonged nature of the sexual assault and to the applicant's actual knowledge that the victim was not consenting to either the sexual assault or the indecent assault. Her Honour declined to take into account substantial emotional harm as she was not satisfied that the victim had suffered significantly more harm than an ordinary person. She described sexual violence of the type involved as "selfish and insidious acts of violence which almost always leave everlasting scars". 4. Her Honour concluded (WB 11): I do not conclude that the offending is aggravated by reason of substantial emotional harm. I find that both offences are slightly above the mid-range of offending for offences of this kind given the matters I have already gone to. The applicant's subjective case 1. The applicant's subjective case was not very compelling. He was born in October 1971 and therefore was 43 when the offending occurred and 45 when sentenced. He was raised as the eldest of five siblings, one of whom is now deceased. His parents separated when he was young because of domestic violence. After his parents' divorce his mother raised him in a stable and supportive environment. But when she remarried he was again exposed to domestic violence perpetrated by his step-father. 2. His mother, who gave evidence on the proceedings on sentence, said that he suffered a head injury which was treated in intensive care in Westmead Hospital. He had apparently fallen from a moving vehicle on a beach. Following the injury he changed from an easy going "youngster" to a person who was less tolerant, less patient and less sociable than he had been. His school work was also affected. In cross-examination it emerged that the applicant had had learning difficulties in primary school before the accident. She insisted that there had been a distinct change in his personality after the head injury. 3. Dr Olav Nielssen, whose report of 31 March 2017 was admitted as Exhibit 2, received a history of the head injury, but said "there were no obvious signs of neurological disorder, including signs of traumatic brain injury such as slurring of speech or impairment in articulation" (WB 81). Nonetheless, Dr Nielssen did proffer a psychiatric diagnosis of Acquired Brain Injury. Her Honour seems to have accepted this evidence (WB 15). 4. The applicant completed primary school and high school. With maths tutoring, he succeeded in obtaining his Higher School Certification, doing well in maths. After leaving school he was able to consistently find employment interspersed by short periods of unemployment, working in a number of skilled or semi-skilled occupations. For a number of years prior to the offending he had been employed as a scaffolder. He suffers from rheumatoid arthritis for which he receives treatment by prescription medication and it limits his ability to perform heavy work because of pain. 5. He has a history of substance abuse, commencing at the age of 16 with cannabis, alcohol at the age of 17, the use of amphetamines sporadically, and methylamphetamine for the 18 months prior to the offending. He was intoxicated at the time of the offending. 6. The applicant has a criminal record, but no prior record of sex offending. However, her Honour assessed his record as disentitling him to the leniency a first offender might receive because of his previous history of violence. His record discloses an offence in 1997 of assault occasioning actual bodily harm for which he received a community service order. In the same year there was an offence of assaulting an officer in the execution of his duty for which he was fined. This occurred in the context of a high range PCA and possessing a prohibited drug. In August 2013, there was an offence of resisting an officer in the execution of the officer's duty. This occurred in conjunction with offensive behaviour near a public school. For the resisting officer offence he was subject to a 12 months s 9 bond with supervision. There was an earlier resist officer offence in 2010 for which he was fined. And the contravention of a Domestic Apprehensive Violence Order also in August 2013 for which he also received a s 9 bond with supervision. 7. I must say that his record does not seem a serious one for crimes of violence. There are a number of convictions for possessing a prohibited drug and an instance of break, enter and steal and larceny in 1992 for which he was dealt with by entry into a recognisance. He received a prison sentence of 9 months duration with a 3 month non-parole period in 1993 for a stealing offence. On appeal to the District Court, periodic detention was imposed in lieu of full time imprisonment. 8. An obvious difficulty with the applicant's subjective case is his attitude to the offending. Even after conviction he continued to maintain his innocence and assert that "the sexual engagement with the victim was consensual" (WB 70). He failed to demonstrate any victim empathy asserting that the victim had "ruined his life". Her Honour found that he had no remorse. It is also apparent that he had not accepted responsibility for his offending. She did, however, consider him to be at a low risk of reoffending, provided he could address his substance abuse issues. 9. The applicant gave evidence on the proceedings on sentence. When asked about whether he disputed the finding of guilt, he answered, "Yeah, of course" (WB 94). He described being on protection, although her Honour was not satisfied that there was evidence about how much more onerous that made his time in custody. She was prepared to accept that the rheumatoid arthritis made custody more onerous. He was not cross-examined. The sentencing judge's reasoning 1. Having dealt with the issues I have summarised above, her Honour explained her reasons for imposing the aggregate sentence she did as follows (WB 16 - 17): These offences are serious ones. There is a need for general deterrence in cases such as this. The damage to the victims of these crimes and to the community is insidious, widespread and long standing, such that meaningful consideration needs to be given to deterring other people who are likely to act in this way in the future. There is also a need to take into account considerations of specific deterrence and the protection of the community. I regard the sentence that I am to impose will act as a very real deterrence to the offender acting in this way again. (My emphasis.) I have taken into account that there are two separate charges arising from separate acts. And that there needs to be some accumulating of the sentences, however, I also take into account that the offending took place as a single episode of criminality. I decline to find special circumstances. 1. Her Honour also referred to the maximum penalties and standard non-parole periods, the need for punishment and acknowledgement of the harm that had been done to the victim. Error in assessment of objective seriousness 1. It needs to be borne in mind that both offences of which the applicant was convicted and for which he was sentenced are standard non-parole period offences for the purpose of Div 1A of Pt 4 of Crimes (Sentencing Procedure) Act 1999 (NSW). Of sentencing for standard non-parole periods, the High Court of Australia said in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]: Section 54B(2) and (3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. (My emphasis) The provisions of Div 1A have been amended since Muldrock was decided to precisely reflect the reasoning in Muldrock. Section 54A(2) now provides: For the purpose of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. And s 54B(2) provides: The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. 1. It is generally accepted to be necessary for a sentencing judge to make an assessment of objective seriousness having regard to the fundamental importance of the principle of proportionality for sentencing purposes. In Veen v The Queen (No 2) (1988) 164 CLR 465 at 472 [1988] HCA 14, Mason CJ, Brennan, Dawson and Toohey JJ said: The principle of proportionality is now firmly established in this country. It was the unanimous view of the court in Veen (No 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender. The proportionality principle requires that the sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances. 1. In R v Dodd (1991) 57 A Crim R 349, this Court said: … there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. 1. Although the assessment of objective seriousness of an offence may be a factor of some importance among all of the facts, matters and circumstances relevant to sentencing in a given case, this Court exercises appropriate restraint in detecting error in the assessment made by the sentencing judge. This is for the reasons explained by Simpson J in Mulato v R [2006] NSWCCA 282 at [46]: The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v R [1936] HCA 40 at 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance. (See also Salafia v R [2015] NSWCCA 141 at 90, Wilson J.) 1. It is relevant to refer to R v Gebrail (Unrep, 18/11/94, NSWCCA) where Mahoney JA (Newman and James JJ agreeing) said: It is important to understand why assessments of the seriousness of the instant offence [s 61J] are made and the significance of such assessments. As I have indicated, every offence of this kind is a serious offence. But those whose duty it is to deal with crimes of this kind and to sentence those who commit them know that though each case is inherently serious, some are more serious than others. In some cases, the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances, of humiliation and otherwise, are much greater than are involved in this case. It is to be understood that in sentencing it is appropriate - indeed, in most cases it is necessary - that the sentencing judge form and record his assessment of where, on the relevant scale of seriousness, the particular offence lies. 1. It must be accepted that the learned sentencing judge did evaluate and record her assessment of "where on the relevant scale of seriousness the particular offence lies". And the factors she referred to were relevant to the question in as much as they focused upon the nature of the offending and not matters or characteristics particular to the offender. Even so, I am of the view that her Honour fell into an error of principle by assessing the objective seriousness of two separate offences as though they were one. I appreciate that both offences arose out of a single, as it were, criminal episode. But each offence was separate having separate elements, different maximum penalties and standard non-parole periods. Given the differences between the offences, it was necessary to assess them separately. Clearly, one or other may be higher or lower "on [its] relevant scale of seriousness". Having regard to all of the objective features and being mindful of the legislative guideposts provided by the maximum sentence and the standard non-parole period, it must be appreciated that, say, the objective seriousness of this particular instance of aggravated indecent assault may rate more highly on its scale of seriousness than this instance of aggravated sexual assault rates on the scale of seriousness relevant to that offending. 2. Although the offences occurred within that single episode one after the other, and therefore will share common objective factors, it is only by considering them separately that a proper assessment can be made. In my judgment this failure to assess the objective seriousness of the offences separately was an error of principle engaging House v The King (1936) 55 CLR 499; [1936] HCA 40 error engaging this Court's obligation to re-exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. 3. Having so found, it is unnecessary to consider separately whether the sentence passed on the applicant was manifestly excessive. The error I have identified in any event necessitates a review of all the facts, matters and circumstances relevant to sentencing this offender for these offences to decide whether some other sentence is warranted in law. The same exercise, in any event, is required in the search for latent error engaged by the manifest excess ground. Resentencing 1. There was no challenge to the factual findings made by the learned sentencing judge and it is therefore appropriate to re-exercise the sentencing discretion by adopting them. I have summarised the facts fully in my analysis of her Honour's judgment above and I will not repeat them here except to the extent necessary to explain my reasons. 2. I repeat that given the important differences between each of the offences for which the applicant is to be sentenced, it was necessary to deal with them separately, even acknowledging the factors each instance of offending had in common. 3. For the reasons explained by Mahoney JA in R v Gebrail it is not helpful to commence the assessment of objective seriousness by acknowledging that all instances of a particular offence must be regarded as serious because of the penalties Parliament has provided. The question is where on the relevant scale of seriousness does the particular instance of offending lie. 4. Dealing with Count 1, and accepting the findings made by her Honour, I am not persuaded that the offence is even slightly above the mid-range of offending for offences of this type. Looking at the nature of the forced intercourse, the offender's awareness that the victim was not consenting, her vulnerability beyond the aggravating element of the offence of being homeless and in an unfamiliar place, the duration of the attack, and the opportunistic rather than premeditated nature of the offending, I would assess its objective seriousness as falling somewhat below the mid-range especially being mindful of some instances of this serious offence are more serious than others. All sexual offending involves violation of the victim's person and personal dignity but some involve much more violence and the infliction of hurt than this offending. 5. However, looking at Count 2 afresh, I agree with her Honour's assessment that this instance of aggravated indecent assault is, at least slightly, above the mid-range of objective seriousness for offences of this type. The facts as found by her Honour are that the applicant had to displace a number of layers of clothing to expose the victim's breast. He spat on her breast to provide lubrication and masturbated his penis between them. This is much further up the relevant scale of seriousness than say inappropriate touching for the purpose of sexual gratification on the outside of a person's garment only. 6. As I have said, the applicant's subjective case is not very compelling. However, I did not find his record for previous violence of great significance. These offences were such as justified only fairly lenient punishment, and as her Honour acknowledged there was no suggestion of any previous sexual offending on his record. 7. Although her Honour appropriately referred to denunciation, vindication, protection of the community and general deterrence as legitimate considerations brought into play by the circumstances of this case, she may have overemphasised the consideration of specific deterrence. I say this because she expressed herself in this emphatic way: I regard the sentence that I am to impose will act as a very real deterrence to the offender acting in this way again. (My emphasis) 1. With respect, in my assessment her Honour has overstated the relevance of specific deterrence in the circumstances of the case, given the positive findings she made in relation to his subjective case. By this I am referring to the consideration that his rheumatoid arthritis will make his time in custody more onerous. If this is so, the relevance of specific deterrence is at least somewhat attenuated. In any event, the need for a stern sentence for reasons of specific deterrence is also perhaps inconsistent with her Honour's acceptance that there was some link between his acquired brain injury and his offending (WB 15) and that his heavy intoxication "might to some extent affect his moral culpability" (WB 16). His acquired brain injury is also apt to attenuate moral culpability. 2. That is not to say that there is no role for specific deterrence to play, just that it need not be so prominent in the application of the purposes of sentencing in this particular case. 3. Her Honour did not seem to form a firm conclusion about the applicant's prospects of rehabilitation except to say they were closely related to him overcoming his drug and alcohol abuse (WB 13). She was also of the view "so long as he addresses his alcohol offending, I would have considered him to be a low risk of offending, particularly for matters of this kind, however, this is dependent" on him overcoming substance abuse. Overall given the uncertainties, her Honour regarded the risk of re-offending particularly of sexual type as being "low to medium" (WB 13). 4. No reason was advanced for altering her Honour's assessment that no reduction should be made for special circumstances. And I would not differ from her. 5. Like her Honour, I would impose an aggregate sentence. In respect of Count 1 the indicative sentence should be one of 7 years imprisonment with a non-parole period of 5 years and 3 months. In respect of Count 2 I would not alter her Honour's indication of 3 years imprisonment with a non-parole period of 2 years and 3 months. The aggregate sentence should be one of 8 years with a non-parole period of 6 years. The sentence should commence on 21 May 2015, the date of the applicant's arrest. 6. The orders I propose are: 1. Grant leave to appeal; 2. Appeal allowed; 3. Quashed the sentence passed in the District Court on 25 July 2017 and instead sentence the applicant to a term of imprisonment of 8 years having a non-parole period of 6 years commencing on 21 May 2015 and expiring 20 May 2021 with an additional term of 2 years commencing on 21 May 2021 and expiring on 20 May 2023. The applicant will be first eligible for release on parole after the expiration of the non-parole period on 20 May 2021. ********** 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: 02 August 2019