Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Barrett v R [2020] NSWCCA 11 Hearing dates: 7 August 2019; 16 December 2019 (Notice of Motion) Date of orders: 14 February 2020 Decision date: 14 February 2020 Before: Bathurst CJ at [1]; Garling J at [128]; Wright J at [184] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIME – Appeals – Appeal against sentence – Manifest excess – Whether aggregate sentence of 46 years is manifestly excessive – Whether sentence disproportionate to offences committed – Principle of totality – Lack of remorse – Very high criminality. CRIME - Murder – Kidnapping – Acts of indecency – Form 1 offences – Further 21 offences taken into account when sentenced for murder - Pleas of guilty – Murder and kidnapping most serious crimes. Legislation Cited: Crimes Act 1900 (NSW), ss 18(1)(a), 61N(2), 86(1)(b), 91L(1), 91M(1) Criminal Appeal Act 1912 (NSW), s 12 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(5AA), 22(1A), 22A, 44(2), 53A(2), 54B(4), 54B(5) Cases Cited: AB v R [2014] NSWCCA 31 Alou v R [2019] NSWCCA 231 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Betts v R (2016) 258 CLR 420; [2016] HCA 25 Caristo v R [2011] NSWCCA 7 Elsaj v R [2017] NSWCCA 124 FYD Investments Pty Ltd v Prompt Air Pty Ltd [2017] FCA 1097 Gibson v R [2019] NSWCCA 221 Goodbun v R, CCA, 2016/299268 (judgment reserved) Harding v R [2013] NSWSC 513 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hughes v R [2018] NSWCCA 2 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 Kelsall v R [2017] NSWCCA 240 King v R [2015] NSWCCA 99 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 O'Connell v R [2006] NSWCCA 82 Park v R [2019] NSWCCA 105 PG v R [2017] NSWCCA 179 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 R v Borkowski (2009) 195 A Crim R 152; [2009] NSWCCA 102 R v Dent [2016] NSWSC 444 R v Droudis (No 16) [2017] NSWSC 20 R v Evans (No 3) [2017] NSWSC 1523 R v Kelsall [2015] NSWSC 480; R v Kennedy [2019] NSWCCA 242 R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92 R v O'Connell [2004] NSWSC 1120; R v Pham (2015) 256 CLR 550; [2015] HCA 39 R v Sean Lee King [2013] NSWSC 801; R v Stanford, Vincent [2016] NSWSC 1434 R v Stani-Reginald [2013] NSWSC 567 R v Villaluna [2017] NSWSC 1390 R v Wilkinson (No. 5) [2009] NSWSC 432 Sivell v R [2019] NSWCCA 77 Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36 Texts Cited: Nil Category: Principal judgment Parties: Derek Barrett (applicant) The Crown (respondent) Representation: Counsel: S Kluss (applicant) M Cinque SC (respondent) H Baker SC; H Roberts (appellant on the NOM) S Odgers SC (respondent on the NOM) Solicitors: Ross Hill & Associate Solicitors (applicant) Solicitor for Public Prosecutions (respondent) File Number(s): 2016/132043 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2017] NSWSC 1802 Date of Decision: 15 December 2017 Before: Wilson J File Number(s): 2016/132043 Headnote [This headnote is not to be read as part of the judgment] Derek Barrett (the applicant) pleaded guilty to a number of charges, including three counts of committing an act of indecency contrary to s 61N(2) of the Crimes Act 1900 (NSW), one count of detaining a person for advantage contrary to s 86(1)(b) of the Crimes Act, and one count of murder contrary to s 18(1)(a) of the Crimes Act. He was sentenced to an aggregate sentence of 46 years, with a non-parole period of 34 years and 6 months. The indicative sentences were as follows: murder, 40 years and 6 months; kidnapping, 9 years; and committing an act of indecency, 1 year and 1 month on each of the three counts. These indicative sentences had been subject to a 10% discount to reflect the applicant's guilty plea. The majority of the applicant's crimes were committed against Mengmei Leng (the victim), who was the niece of the applicant's wife and lived together with them. On 22 April 2016 at their home, the applicant detained the victim, and took a number of photographs which showed her naked and bound. Sometime between the morning of 22 April and the early hours of 24 April, he stabbed the victim to death. The victim's injuries showed 31 knife wounds to her body. On 24 April, the applicant drove the victim's body to the Munmorah State Conservation Area. He then threw the victim's body into the Snapper Point Blowhole, and took photographs of the cliff and waters off the Blowhole. On 25 April, after he and his wife reported the victim missing, the applicant claimed to police that he had spoken to the victim on the telephone at 10am on 22 April. He was arrested in relation to the victim's murder on 29 April. The applicant sought leave to appeal against his sentence. The sole ground of appeal was that the sentence was manifestly excessive. The Court of Appeal granted leave to appeal, but dismissed the appeal (Bathurst CJ, Wright J agreeing, Garling J dissenting). The Court also gave reasons for its unanimous order of 16 December 2019 that the Crown motion to reopen the appeal be dismissed. Was the sentence manifestly excessive? Although the sentence was severe, having regard to all the circumstances, including the totality of the criminality involved and the applicant's lack of remorse, the aggregate sentence was not manifestly excessive. In a number of other serious cases, sentences of a comparable severity have been imposed: [109]-[125] (Bathurst CJ); [184] (Wright J). Hughes v R [2018] NSWCCA 2; JM v R [2014] NSWCCA 297; Sivell v R [2019] NSWCCA 77; R v Stani-Reginald [2013] NSWSC 567; R v Stanford, Vincent [2016] NSWSC 1434; R v O'Connell [2004] NSWSC 1120; O'Connell v R [2006] NSWCCA 82; R v Wilkinson (No. 5) [2009] NSWSC 432; R v Sean Lee King [2013] NSWSC 801; King v R [2015] NSWCCA 99; R v Evans (No 3) [2017] NSWSC 1523; R v Villaluna [2017] NSWSC 1390; R v Kelsall [2015] NSWSC 480; Kelsall v R [2017] NSWCCA 240; R v Droudis (No 16) [2017] NSWSC 20 referred to. Garling J in dissent: the sentence was manifestly excessive and a lesser sentence should be imposed. The 10% discount applied to the applicant's indicative sentence was inadequate, and a larger discount would still have reflected the high level of criminality involved in the offences. Although no patent error by the sentencing judge was identified, the aggregate sentence was "just too high". The aggregate sentence was outside the range of sentences which may be imposed in the proper exercise of a judge's sentencing discretion: [139]-[162] (Garling J). Alou v R [2019] NSWCCA 231; JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297; R v Kennedy [2019] NSWCCA 242; Gibson v R [2019] NSWCCA 221; PG v R [2017] NSWCCA 179; Elsaj v R [2017] NSWCCA 124 referred to. The Crown motion to reopen the appeal Having regard to the totality of the circumstances of the case, the Court should not exercise its discretion to reopen the appeal and allow fresh evidence to be adduced by the Crown. Relevant circumstances included: the applicant did not challenge any factual findings; the Crown did not suggest error by the sentencing Judge; the sentencing proceedings were conducted on the basis of an agreed statement of facts; and the fact that the "Court is not well placed to make findings on disputed questions of fact": [127] (Bathurst CJ); [163]-[183] (Garling J); [184] (Wright J). Judgment 1. BATHURST CJ: The applicant Derek Barrett (the applicant) was charged on 29 April 2016 with the following offences: 1. Three counts of committing an act of indecency contrary to s 61N(2) of the Crimes Act 1900 (NSW) (the Crimes Act). The offences carry a maximum sentence of 18 months imprisonment. 2. One count of detaining a person for advantage contrary to s 86(1)(b) of the Crimes Act (the kidnapping offence). This offence carries a maximum penalty of 14 years imprisonment. 3. One count of murder contrary to s 18(1)(a) of the Crimes Act. This offence carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years imprisonment. 1. The applicant pleaded guilty to the offences on 27 August 2017. He asked for a further 21 offences to be taken into account when he was sentenced for murder. Nineteen of those are counts of filming the private parts of a person without consent for sexual gratification contrary to s 91L(1) of the Crimes Act and two counts of installing a device for the purpose of filming private parts without consent contrary to s 91M(1). Those offences each carry a maximum penalty of 2 years imprisonment and a fine. 2. The applicant was sentenced on 15 December 2017 to an aggregate term of 46 years imprisonment to date from 29 April 2016 and expiring on 28 April 2062. The sentencing judge fixed a non-parole period of 34 years and 6 months expiring on 28 October 2050. In imposing that sentence, her Honour stated that the sentences she would have imposed had an aggregate sentence not been fixed would have been as follows: (i) For the offence of murder and taking into account the 21 charges on the Form 1 document, a term of 40 years and 6 months imprisonment. (ii) For the offence of kidnapping, a term of 9 years imprisonment. (iii) For the offences of committing an act of indecency, 13 months imprisonment for each count. The indicative sentences were arrived at after a discount of 10% for the applicant's plea of guilty. 1. The applicant has sought leave to appeal against these sentences. The factual background 1. The summary below is taken from the sentencing judgment. There was no dispute as to its accuracy. 2. The victim, Mengmei Leng (the victim), was a young woman who moved from China to Australia to study in 2011. She was 25 years old when she died. 3. In 2012 the applicant married the victim's aunt, Ms Cheung, who was living and working in Australia. The victim lived with the applicant and his wife together with Ms Cheung's daughter and for a time her son at a number of residences in Sydney. In 2014 the family was living in an apartment at Beamish Street, Campsie. This is where the offences occurred. 4. In September 2014 the applicant placed his mobile telephone in a shared bathroom. Ms Chan, the applicant's adult stepdaughter, entered the bathroom and undressed in readiness for a shower, showered and dressed. The applicant's telephone recorded her throughout, the recording lasting 14 minutes and 56 seconds. This was one of the offences which the applicant asked to be taken into account on the Form 1. 5. On 12 December 2015 (the sentencing judge mistakenly referred to 12 September 2015) the applicant again sought to view Ms Chan for his sexual gratification. He entered her bedroom and filmed her sleeping in her bed with him standing over her masturbating. Towards the end of the footage, he appeared to flick fluid from his fingers towards his stepdaughter's clothing. This was one of the three acts of indecency with which the applicant was charged. 6. On 15 January 2016 the applicant secretly filmed the victim when she entered the bathroom, removed her clothing, bathed, dried herself and dressed. The recording was for a little over 33 minutes. 7. On 27 January 2016 the applicant entered the victim's bedroom in the early hours of the morning and filmed her as she slept. With his erect penis in the frame, he focused the camera on the victim's bottom and underwear. The recording shows the applicant ejaculating at the end of the 48 second film. This was the second act of indecency for which the applicant was charged. 8. On 13 February 2016 the applicant again filmed the victim as she slept in a darkened room. The applicant filmed the victim's body, whilst in the foreground of the frame the applicant could be seen to masturbate his erect penis. This was the third of the acts of indecency for which he was charged. 9. At some time after midnight on 22 April 2016 and before 8.37am the applicant detained the victim, binding her hands behind her back and gagging her with heavy duct tape secured over her mouth. She could be seen in the photographs naked and bound and in the one photograph of thirteen in in which her face is in evidence, she appears terrified. The other images focused on her breasts or close up of her genitals. The sentencing judge concluded and it was not disputed that the applicant must have forced the victim to part her legs so that she could be seen lying humiliatingly exposed. The sentencing judge also noted and it was not disputed that at the time the victim was not physically injured. These instances which the sentencing judge described as detaining and binding the victim for the benefit of being able to exploit her for his own sexual gratification, comprised the kidnapping offence and 18 of the offences referred to on the Form 1. 10. The sentencing judge recorded that at some time after 8.39am on the morning of 22 April 2016 when the last of the images was taken and 3.19am on 24 April 2016 when the applicant left the apartment, the applicant killed the victim by stabbing her to death. 11. The sentencing judge described the injuries to the victim as evidencing "a vicious attack upon her" and her struggle against the attack. The post-mortem examination showed 31 separate wounds, all of which were consistent with having been inflicted with a knife. It also showed numerous blunt force injuries. The sentencing judge stated that the lethal wound was the one to the victim's throat which completely transected her larynx. She also noted that there were wounds consistent with defensive injuries. The sentencing judge also stated that whilst the wound to the larynx was lethal, blood loss from other wounds could have contributed to her death. She stated that the blunt force injuries were consistent with post-mortem injuries, likely to have resulted from the manner in which the applicant sought to dispose of the victim's body. 12. The sentencing judge stated that the evidence established that the applicant took significant steps to disguise his crimes and dispose of evidence. She referred first to his efforts to clean the shower and the fact that the applicant's wife Ms Cheung told police that when she returned home on the late afternoon of 24 April 2016, the apartment was exceptionally clean and the victim's bed sheets unusually laundered. 13. Ms Cheung left the home at 8.30pm on the evening of 23 April. At 3.19am the next day, the applicant took the builder's lift to the carpark of the unit block, driving out of the carpark at 3.34am. The sentencing judge stated that the victim by that time had been murdered and the applicant was travelling with her body in the boot of his car, driving to the place where he would attempt to dispose of it. 14. At 3.37am the applicant stopped at a Campsie petrol station and bought drinks. He then proceeded to the Munmorah State Conservation Area situated on the coast. He went to a place described as the Snapper Point Blowhole at the cliff edge, carrying the victim's body, naked but for a wrapping of black plastic. The applicant stepped over a safety rail and threw the body off the cliff so that it entered the water 20 or 30 metres below. The sentencing judge stated that the applicant's mobile telephone was used to take seven images of the cliff and waters off the Blowhole at 9.19am. 15. At 10.30am a walker on the cliff top saw a body floating face down in the water. Police were called and the body of the victim was recovered by Police Rescue. 16. On leaving Snapper Point, the applicant drove to the nearby home of his parents and collected $300 from his mother. He stayed for only about 10 minutes. He subsequently drove to Sydney, collecting his wife from Hurstville Railway Station shortly before 10.00pm. 17. On the evening of 25 April the applicant went to Campsie Police Station with his wife and reported the victim missing. He said that she had not been seen since midnight on 21 April 2016 but claimed to have spoken to her at 10 am on 22 April by telephone. 18. The applicant made a statement to the police on 26 April 2016 claiming the victim had lately "been going to parties, nightclubs and started drinking". He stated that he last saw her on the evening of 21 April when they were home alone together. He told the police that he woke up in the afternoon of 22 April 2016 and the victim was not in the apartment. He assumed that she had gone out. He then gave a version of what he did on the succeeding days which was incorrect. 19. On 29 April 2016 the victim's body was identified by a DNA match. The applicant was then interviewed under caution and when told that the police suspected the victim had been murdered, he responded "we suspected that for a couple of days at least". However, the applicant adhered to his version of events, although he said he had a memory of having gone out to dinner and seen a female friend to hang out with her in the early hours of 24 April 2016. 20. On 29 April after the applicant had an opportunity to seek advice, he was arrested in relation to the murder and participated in a forensic procedure. He was cautioned in relation to the death and further interviewed. He was advised that his mobile phone had connected with a telephone tower located on the Central Coast and that his mother and other relatives had confirmed he had attended his mother's home that morning. However, he maintained his denial that he had been to the area recently. 21. The applicant also denied being sexually attracted to the victim and denied murdering her. He said he did not know the Blowhole and had not disposed of her body at Snapper Point. 22. As I indicated the applicant was charged on 29 April 2016 and entered pleas of guilty on 27 August 2017. The applicant's subjective circumstances 1. Once again the summary below is taken from the sentencing judgment. There was no real dispute as to its accuracy. 2. The sentencing judge recorded that at the time of sentence the applicant was 29 years of age. She noted that he had no prior criminal history. She noted that he gave evidence and also called evidence from a forensic psychiatrist, Dr Richard Furst, and a psychologist, Mr Nicholas Lavidis. 3. The sentencing judge recorded that Dr Furst first saw the applicant on two occasions in November 2016 and more recently in December 2017. In his initial consultations, he concluded the applicant was fit to be tried. 4. Dr Furst took a history from the applicant in which he described an unhappy childhood, being teased and bullied at school and feeling socially isolated. He told Dr Furst that he fared a little better in high school although he remained unpopular with fellow students and became interested in computers. He stated that his parents separated when he was a teenager and his mother later remarried. 5. The sentencing judge recorded that the applicant told Dr Furst that he left school before completing Year 10 and finished his school certificate through a TAFE college. He undertook an IT course at TAFE and was fully employed in that field until October 2015 when he was retrenched. 6. In his report Dr Furst stated that the applicant had two long-term relationships, the first when he was at school and the second with his neighbour. He married his wife in 2012 when he was aged 24, his wife being considerably older. Dr Furst stated that the applicant told him that his wife, who had previously expressed a desire to have children with the applicant, later changed her mind leaving the applicant feeling rejected and inadequate. He began to use the services of prostitutes. 7. The applicant told Dr Furst that at the time of the murder he was using a lot of ice and experiencing confusion. He said that he had memory gaps for the week of the murder and had experienced blackouts. 8. Dr Furst reported that on examination the applicant denied hearing voices or feeling paranoid. Dr Furst stated that the applicant was logical and coherent and there were no indications of psychosis. Dr Furst considered the applicant to be of at least average intelligence and saw no evidence of mental illness, noting that the applicant's actions were suggestive rather of sexual deviance. 9. Dr Furst concluded that there was no indication that the applicant was psychotic and thought he may have been overstating the amount of drugs he had consumed at around the time of the offence. Dr Furst stated that he thought the offences were most likely to be driven by deviant arousal of a violent and likely sexual nature. 10. Dr Furst concluded on the basis of the applicant's reported history, that he had a substance use disorder and possibly an autism spectrum disorder, although he noted that the applicant had maintained a reasonable level of psychosocial function. 11. In his evidence at the sentencing hearing, Dr Furst stated that if the applicant was in fact using ice as he claimed, there would be issues of sexual disinhibition and increased aggression. Dr Furst noted, however, that the applicant, prior to seeing him in November 2016, had maintained that he had only used minimal amounts of ice, referring to Justice Health records which recorded the applicant's firm denial on entry into custody of being a regular ice user. Dr Furst stated that it was difficult to know the truth of the applicant's drug use having regard to the different versions given by him on the subject. 12. Dr Furst did not accept the applicant's claims to have memory loss for the period of the murder. As to the possibility of psychosis, including drug induced psychosis, Dr Furst did not accept that the applicant had ever been psychotic. He was unable to agree with the opinion of Mr Lavidis that drug induced psychosis was a possibility. 13. Dr Furst considered that the multiplicity of wounds inflicted on the victim was indicative of a sadistic drive, whilst the acts of photographing her bound and gagged was in keeping with deriving pleasure from wanting to record the suffering of another human being and the dominance over the other person, which in this case was complete and proved fatal. 14. Dr Furst stated that the fact that the applicant photographed not only the victim but also Snapper Point, was suggestive of a wish to access the memories again in the future for pleasure. He said that it was possible the applicant had bound, gagged and photographed the victim as a consequence of sexual deviancy and, thereafter, killed her in a panic at the prospect of discovery but considered the number of stab wounds inconsistent with that possibility. 15. The sentencing judge recorded that the applicant gave Mr Lavidis a history in some respects consistent with that given to Dr Furst. The sentencing judge noted that Mr Lavidis assessed the applicant over four interviews of one hour duration and prepared a report, and then met with the offender for over two hours shortly before the sentencing proceedings, and prepared a second report. The applicant gave a rather more detailed account of his drug use, telling Mr Lavidis that he had been reintroduced to methylamphetamine by his wife in 2016, as opposed to 2012 as he reported to Dr Furst. Contrary to his denials to Dr Faust, he told Mr Lavidis he had experienced aural and visual hallucinations. 16. On the basis of the applicant's assertions as to methylamphetamine use, Mr Lavidis considered that he may have committed the crimes when in the grip of a drug induced psychosis. He observed that memory loss can follow both a psychotic episode and prolonged methylamphetamine use. 17. In his second report, Mr Lavidis stated that the applicant again gave a history of heavy drug use stating that he commenced using ice when he was married to his wife in 2012 and in January and February 2016, he was using two to three "8-balls" of ice each day, each of which was approximately 3.5 grams in weight. He told Mr Lavidis that leading up to the murder he was using three of such balls and watching pornography. 18. The applicant told Mr Lavidis about flashes of memory he recalled from the murder, namely an argument, blood in the sink, his face reflected in the mirror, being at the car at his parents' house, but nothing else. 19. In his oral evidence, Mr Lavidis said that in his experience synthetic cannabis was associated with hallucinations and that drug use as described by the applicant could lead to memory problems. He also stated that he thought using methylamphetamine and synthetic cannabis could quickly lead to psychotic episodes. Mr Lavidis conceded that it was possible the applicant was falsely claiming to have memory loss of the events. 20. The sentencing judge noted that the applicant gave evidence after Dr Furst but before Mr Lavidis. The sentencing judge referred to the applicant's statement in his evidence after being asked how he felt after reading the victim impact statement to the following effect: "There's no words, there's no level of words of expression I can give. I can never reverse the actions that I've done, though I would gladly exchange position in the actual situation. I would rather her be here than me. She had a beautiful future ahead of herself. I could only imagine what the family is going through. If I was her I don't think I could forgive me. I think she [Ms Cheung] is right in her impact statement. I deserve life. I betrayed my own family and hers for my actions. I disgust myself." 1. The sentencing judge recorded that the applicant stated that his use of ice increased massively at the start of 2016 and he had been using synthetic cannabis to "come down" from the intoxication of methylamphetamine. He stated that when using the synthetic substance, he started getting blackouts and waking up in places without knowing how he came to be there. He again asserted that he had no memory of the events in question. 2. The sentencing judge noted that despite earlier denials, the applicant conceded being sexually attracted to the victim and to his stepdaughter. The applicant's evidence was "the sexual desire would increase when I was on ice". 3. The sentencing judge recorded that the applicant maintained that he had no more than flashes of memory of the offences and had not initially believed himself responsible for what happened. He blamed his memory loss on the use of drugs, stating that he had partial memories only, including driving to the Central Coast and being at his parents' house. He sought to explain his comments to Justice Health that he had not used ice in the month or so prior to entering custody, and then only in small quantities, by stating that he had been told that he would be put on methadone if he admitted using methylamphetamine. He also said that he was embarrassed. 4. The sentencing judge noted that the applicant blamed drugs for causing "bad actions", that would normally be under control, to come out. He claimed that he had gone to bed normally on the night of Thursday 21 April 2016 with no memory of having seen the victim on Friday morning, or of having bound, gagged or photographed her. When asked about deleting the images of the victim that he had taken at the time, he suggested that he had not known they were on his phone, either when deleting them or thereafter until he had seen the police brief of evidence. He denied deleting images on the phone intending to avoid detection for the murder. When it was put to him that he was lying in his evidence he said: "I came here to tell the truth. I came here to help in some little way – some little way – whether they appreciate it or not, to help with the mother's grief." The sentencing judgment 1. The sentencing judge set out the facts and the evidence concerning the applicant's background and subjective circumstances in the manner to which I have referred above. 2. Her Honour stated that even the offences reflective of the applicant's acts in filming the victim and Ms Chan as each slept in their bedrooms, and masturbating over them, were "serious examples of an offence contrary to s 61N, in that both women were vulnerable in sleep" and the offence occurred in breach of their privacy and security by the applicant, a trusted family member. She stated that the fact that the applicant filmed the incidents, keeping the footage for some time, presumably for his own sexual gratification, heightens the gravity of these crimes. 3. The sentencing judge also stated that the kidnapping offence was a very grave example of a crime of that nature, despite the fact that there was much about its circumstances which could not be determined on the evidence. Her Honour stated that she was not able to determine the period of detention, being able to conclude only that it began some time after the victim sent her last text message at midnight on 21 April 2016 and ended with or shortly before her murder some time before 3.19am on 23 April 2016 when her body was removed from the apartment. However, her Honour stated that during the period of the detention, which was "prolonged if unquantifiable", the victim was "subjected to conduct that terrified and degraded her by a man who was physically much larger than her, and who could have readily overpowered her". 4. The sentencing judge concluded that the applicant either removed the victim's clothing himself or forced her to do so. She concluded that with the victim naked and exposed, he bound her hands with heavy tape and gagged her. Her Honour stated that "must have been painful as well as profoundly disempowering". She said that it effectively deprived the victim of her voice and the only means she had of calling for help. 5. The sentencing judge concluded that the only motivation of the applicant in detaining the victim in this way was his own sexual enjoyment and to permit him to commit other crimes, being the recording of images of the victim's breast and genitals. She stated that whilst the applicant denied deriving any sexual enjoyment from these acts, that was at the heart of the offence. She described it as "a depraved and sadistic act, committed by a man in a position of trust to Ms Leng, and in a place that should have been one of refuge and safety for her". 6. The sentencing judge then referred to the Form 1 offences, noting that the applicant took 19 separate images of the victim's private parts, the majority being extreme close-up views of her genitals for which the victim was obviously forced to spread her legs widely. Her Honour stated that having taken the images, the applicant kept them on his mobile phone until such time as he deleted them from fear of detection. She stated that "the only possible motivation" was so that the applicant "could look at them, for his aberrant sexual pleasure". 7. In dealing with the murder, the sentencing judge stated that at some time after taking the photographs, the applicant must have unfastened the victim's bonds since when he attacked her with a knife, probably in the bathroom, she was able to use her hands in a desperate attempt to defend herself. She noted that the knife was not identified or recovered but that using the knife the applicant stabbed the victim 31 times to her head, neck, torso and hands, acting with an intent to kill. Her Honour described it as an attack of significant savagery. 8. Her Honour noted that the defence wounds to the victim's hands were indicative of her fight for her life and that the white blood cells in the tissue of her lungs showed that she survived her wounds for a period of time. She stated that the victim must have been in great pain and great fear. 9. The sentencing judge again noted that the murder occurred in the victim's home and was committed by a man she should have been able to trust. 10. Her Honour noted that having killed the victim, the applicant kept her body with him for some period, although the duration could not be determined. She stated that his conversation with his mother was likely to have been prompted by a need to create a reason to travel to the Central Coast. Her Honour concluded that by the time of that conversation, the applicant must have considered the Blowhole at Snapper Point a suitable spot at which to dispose of the body. 11. Her Honour concluded that it was unlikely that the applicant took the body to the garage of the apartment block until 3.19am on 23 April 2016. She stated that the applicant "callously pushed" the victim's remains into the boot of his car, having wrapped her naked body in black plastic. She described it as "extraordinary" that having done that, the applicant would stop at a petrol station and purchase some drinks for himself. 12. The sentencing judge stated that at Snapper Point the applicant threw the victim's body into the Blowhole "where it was hurled repeatedly against the rocks of the surrounding cliffs, sustaining the multiple blunt force injuries later seen at the post-mortem examination". She stated that it was "a remarkably contemptuous act against the remains of a young woman" whom the applicant claimed in evidence to be his good friend and is relevant to the assessment of seriousness. 13. The sentencing judge concluded that having considered Dr Furst's evidence and the circumstances of the crime, the crime arose from the applicant's "sexual perversion and sadism, and not from drug use". She stated that it was more likely that the applicant was "initially truthful in his account of short term, very occasional use of methylamphetamines, later exaggerating his drug use to explain his criminal conduct, and account for his claimed memory loss". She stated that she did not believe the applicant was truthful about his drug use or amnesiac state, stating that in any event s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provided that self-induced intoxication is "not to be taken into account as a mitigating factor". 14. Her Honour stated that having watched the applicant give his evidence, and considering all of the other available evidence, she "found it difficult to accept that the applicant was genuinely remorseful". She stated that he had "the air in the witness box of someone playing a part, and saying what he thought he should say to present the best possible impression of himself". She stated that his assertions of deep remorse needed to be viewed against his conduct overall, including the deliberate disposal of her body and playing "the part of the worried relative" and his denial of the offence to the police. 15. Her Honour stated that in November 2016 when the applicant first saw Dr Furst, the applicant would have "well understood the strength of the case against him" and his claims to having used drugs heavily were "likely to have been fabricated … in an attempt to meet evidence that could not be gainsaid". She stated that his pleas of guilty entered about 15 months after having been charged were "in the face of incontrovertible evidence". Her Honour said that she did not regard the plea of guilty as suggestive of remorse as "[h]ad the applicant been genuinely remorseful, that is, felt a deep regret for the wrong he had done, and a wish to make such amends", he would have given an honest account of what he did and why. She stated that she did not believe that the applicant had done that. 16. Her Honour declined to give a 25% discount for the early plea, stating that "would render the penalty disproportionate to the crimes, and be incapable of reflecting their gravity". 17. Her Honour stated that the nature of the crime and the sexual motivation for it gave rise to considerations of future dangerousness and the protection of the community, as well as questions of rehabilitation. 18. She stated that although assessing the level of threat posed by an individual decades into the future was "not greatly removed from crystal ball gazing", it is a relevant feature in the exercise of the sentencing discretion and must be considered. She stated that on the available evidence, she was "simply unable to assess" the applicant's prospects of rehabilitation. She said that "[t]here may be questions of future dangerousness". 19. However, her Honour declined to impose a life sentence. She stated that in reaching that conclusion, she considered the applicant's "age and willingness to undergo rehabilitative programmes, his acknowledgement of responsibility for his crimes and his former productive life and good character". 20. Her Honour then considered questions of concurrence and accumulation. She stated that the offences of committing an act of indecency are distinct from the kidnapping and the murder. She stated that whilst there is "some commonality" in the sexual motivation of those crimes, "a significant degree of accumulation is required" between those offences and the other offences, ameliorated only by the principle of totality. She stated that this was particularly so for the offence involving Ms Chan, she being a separate victim. Her Honour stated that "some recognition should be made for the utilitarian value of the pleas of guilty" and she proposed to allow 10% for that purpose. 21. She said that a finding of special circumstances was "not appropriate or necessary" in view of the extended period of the non-parole period as a consequence of the ordinary operation of the statute. 22. Her Honour then fixed the indicative and aggregate sentences to which I have referred above. The ground of appeal 1. The appellant has sought leave to appeal on the sole ground that the sentence was manifestly excessive. The submissions 1. In written submissions filed on behalf of the applicant, the sentence was described as "crushing". At the hearing, counsel for the applicant contended that there were three ways the sentencing judge formulated the sentence which, whilst not indicative of individual error, compounded to create a sentence which was manifestly excessive. 2. Counsel for the applicant submitted, first, that the starting point for the indicative sentence for the murder of 45 years prior to the 10% discount for a plea was too high. She submitted, second, that the sentence being accumulated on the second offence of kidnapping and the acts of indecency resulted in an aggregate sentence contrary to the overall concept of totality, particularly when "in some ways" the sentence for the murder was "informed by the surrounding circumstances". 3. The third matter was that whilst counsel for the applicant accepted that the sentencing judge was entitled to impose a 10% discount for the plea, in circumstances where a determinative sentence for murder has been imposed, discounts of 25% have been given. 4. Counsel for the applicant submitted that whilst she accepted that the facts and surrounding circumstances fell into "the most serious" of cases, nonetheless if one was "to dissect the actual circumstances of the kidnapping and the act of indecency and ignore for a moment the murder itself" those sentences, particularly against a plea of guilty and the lack of a criminal history, are "ones that would sit very much at the highest ends of the range of penalties that are available" for all these offences. 5. Counsel for the applicant referred to the decision of this Court in Park v R [2019] NSWCCA 105. That involved a murder which took place some time within a period of 10 hours one night, where the events leading up to the death of the victim, the location of the assaults leading to his death and the weapon or weapons used, were only within the knowledge of the applicant. On the succeeding days, the applicant drew a significant amount of cash from the victim's bank accounts, arranged to transfer some to Korean bank accounts and purchased luxury items with other monies so withdrawn. 6. The victim's body was ultimately found in a green council bin placed near the premises occupied by the victim and the offender. The victim's and the offender's DNA were identified on an iron sledgehammer. 7. The offender was 28, had no prior convictions and the sentencing judge accepted that he was "genuinely remorseful" and was suffering from "depression, isolation and [a] deep sense of abandonment". 8. The Court of Criminal Appeal accepted the sentencing judge's assessment that the offence was premeditated and significantly above the midrange of objective seriousness. 9. The sentencing judge sentenced the offender to a term of imprisonment of 36 years with a non-parole period of 27 years. The Court of Criminal Appeal found the sentence to be manifestly excessive and resentenced the offender to a term of 28 years and 9 months with a non-parole period of 21 years and 6 months. There was a discount of 10% for the plea of guilty. 10. Counsel for the applicant also referred to the decision of Harding v R [2013] NSWSC 513. The offender was 57 years of age when he poured a 250 millilitre bottle of methylated spirits over his female lover who was confined to a wheelchair in her home. The offence involved gratuitous cruelty by the offender in leaving her home and despite it being a "somewhat spontaneous" offence, the criminality was said to be "very high". After a 25% discount for an early plea, the offender was sentenced to a term of 27 years with a non-parole period of 20 years and 3 months. 11. Counsel for the applicant also submitted that the accumulation took away any effect of the discount for the plea. It is not clear what was meant by this submission as it was accepted that each of the indicative sentences were arrived at after taking into account a 10% discount. 12. In written submissions it was also submitted by the applicant that having concluded that a determinative sentence was appropriate, the sentencing judge imposed what was in practical terms a life sentence and "extinguished any benefit for facilitating the course of justice". 13. At the hearing, the Crown, whilst recognising the limitation of the use which could be made of comparable cases, referred to the decision of Price J in R v Stani-Reginald [2013] NSWSC 567. The offender lived in a neighbouring unit to the victim. He raped her vaginally and anally, strangled her, placed her body in a suitcase, then called a taxi, went to an outer area of Sydney and dumped the suitcase in a stormwater canal. The offence was said to be planned and researched and found by the sentencing judge to be in the "worst category of offences". The offender was 19 years of age and had a difficult upbringing but there was no finding of psychiatric illness. The sentencing judge considered the offender's prospects of rehabilitation as "very poor". He was sentenced to a term of imprisonment of 45 years with a non-parole period of 30 years. 14. The Crown described the kidnapping offence as "very high range offending" and submitted that the sentence of 9 years having regard to a 10% discount was within the sentencing judge's discretion as was the notional accumulation of 16% particularly having regard to the circumstances of the kidnapping. She also pointed to the fact that the sentencing judge would have been notionally entitled to accumulate two of the offences of indecency, particularly having regard to the fact there was another victim involved. 15. In written submissions the Crown also referred to R v Stanford, Vincent [2016] NSWSC 1434. In that case, the offender was convicted of the murder of a young female teacher on school grounds. It was pointed out that there were a number of similarities between that case and the present; the murder was preceded by sexual offences – although there was no positive finding that a sexual assault occurred due to the state of the body when found (the offender removed the body of the victim from the scene of the murder, drove her to bushland, stripped her, poured petrol which he had obtained en route over her and set her body alight). In addition, the murder was committed by stabbing and photographs were taken of the victim's naked body. The offender was 24 years of age at the time of the offences. The subjective circumstances were said to be similar. In particular, Ms Robilliard, a forensic psychologist concluded that the offender had elevated scores on the "Sadistic/Aggressive scale", there was a finding of lack of remorse and the offender had no prior criminal history. The offender was sentenced to life imprisonment. 16. Following the hearing of another appeal in which the same counsel appeared for the applicant, Goodbun v R, CCA, 2016/299268 (judgment reserved), the Court requested further statistical information concerning serious cases of murder for use both in that case and in the present case. 17. The applicant in submissions filed as a consequence, submitted that there were four cases which bore some resemblance to the present case. 18. The first of these cases, R v O'Connell [2004] NSWSC 1120; O'Connell v R [2006] NSWCCA 82, involved the murder of a 15 year old girl with whom the offender, who was 18, was having a casual relationship. There were horrific injuries including 10 stab wounds. The body was disposed of in a nearby garbage bin and there was a detailed attempt to divert suspicion. The offender had been the victim of abuse by stepfathers, had drug and alcohol problems and had "shown a degree of remorse". The offender was sentenced to a term of imprisonment of 35 years with a non-parole period of 25 years, the sentencing judge stating that but for the applicant's "youth and his plea of guilty, a life sentence would have been imposed". The sentence imposed was affirmed on appeal. 19. The second case referred to was R v Wilkinson (No. 5) [2009] NSWSC 432. In that case the offender pleaded guilty to offences of murder and arson and was sentenced to 28 years imprisonment with a non-parole period of 21 years on the murder offence and 6 years with a non-parole period of 4 years and 6 months on the arson offence. Taking into account the principle of totality, the total offence ultimately imposed was a term of imprisonment of 28 years with a non-parole period of 24 years. The offender received what the sentencing judge described as "a modest discount" for the plea of guilty to murder and a discount of 25% for the utilitarian value of the plea of guilty to arson. The offender had killed his pregnant lover to prevent complications to his marriage to another woman. The circumstances of the killing were unclear. The body was never found. The offender attempted to leave a false trail by setting fire to his house and blaming the victim. He supplied multiple false accounts to the police. The offender had no prior convictions and he showed no contrition or remorse. The offender was an Aboriginal Community Liaison Officer with the Police Force and would endure onerous custodial conditions. 20. The third case was R v Sean Lee King [2013] NSWSC 801; King v R [2015] NSWCCA 99. The offender in that case pleaded not guilty to murder and certain other offences. He was convicted and sentenced on the murder charge to a term of imprisonment of 32 years and a non-parole period of 24 years. His total sentence, taking into account the sentences imposed for the other offences, was 33 years and 6 months with a non-parole period of 25 years and 6 months. 21. The circumstances of the murder were that the 25 year old offender bashed his 18 year old ex-girlfriend in her apartment. He took ice and drank alcohol prior to the offence. The attack was described as "a vicious, inhumane and unprovoked" and the victim suffered severe injuries. The offence was described as above the mid-range of seriousness, although there were findings of "some prospects of rehabilitation" and remorse. The sentence imposed was affirmed on appeal. 22. I have referred to the fourth case R v Stani-Reginald above. 23. The applicant also provided tables produced from the Public Defender and from the Judicial Commission showing sentences for murder in a wide variety of cases. 24. The Crown in submissions filed for use in both cases emphasised the principles concerning the limitation on the use of comparison material. However, the Crown annexed to its submissions in Goodbun summaries of sentences imposed in three classes of cases. The first was described as "Comparative Cases - Murder - Determinative Sentences - Single Murder (not involving a child victim) - Head Sentences over 40 years – Post SNPP". 25. The second was the Public Defender's tables relating to the killing of a female partner and the third was the Public Defender's tables for murder where a non-parole period of over 20 years was imposed. 26. The Crown submitted that the second class was not relevant and that the offending involved more serious offending than the cases in the first class. 27. The first of these cases was R v Evans (No 3) [2017] NSWSC 1523. The offender was convicted of murder and certain other offences having pleaded not guilty. He was 25 years of age at the time the offences were committed and 29 at sentence. He was an ice addict who committed the offences for money. The offences arose from two home invasions which both involved the "the planned targeting of a home" at a time when the occupants were at their most vulnerable. The two homes were rural and semi-rural with few neighbours in close proximity. Weapons were brought to the scene. The sentencing judge described what occurred as a "callous and gratuitous" infliction of physical harm. The intent to kill was formed during the second home invasion when the deceased was lying on the floor injured and bound. There was no remorse. The Court found that there was a modest reduction in the offender's moral culpability for breaking into homes in order to steal property because of the indirect link between the childhood onset of ADHD and the subsequent drug addiction that it rendered the offender more susceptible to, but stated that this did not reduce the moral culpability for the acts of violence. 28. An indicative sentence of 42 years was imposed for the murder with a non-parole period of 31 years and 6 months. 29. The second case referred to was R v Villaluna [2017] NSWSC 1390. The offender followed his ex-partner to a dinner date with a male victim. He stabbed the victim 11 times and also stabbed his ex-partner. It was found that he intended to kill the victim but had no intent to kill the ex-partner. It was stated he "had planned for some time to kill any man in the presence of his ex-partner" and he showed no remorse. After a discount of 15% for the plea the indicative sentence for the murder was 34 years with a non-parole period of 24 years. 30. The third case was R v Kelsall [2015] NSWSC 480; Kelsall v R [2017] NSWCCA 240. The offender was 20 years old at the time of the offences and 22 at sentence. The offender, who pleaded not guilty, followed the deceased home after coming across him after he (the deceased) had been out socialising. The offender followed the deceased into his unit, indecently assaulted him and then stabbed him to the back, head and neck with a knife more than 20 times. The offence was described as "a most chilling case of murder" that "was done for no reason other than to serve some irrational purpose known only to the offender". There was found to be "a very real concern" of future dangerousness, no remorse and prospects of rehabilitation were "questionable". It was also found that his mental health issues were not of such a type and significance to call for any amelioration in the sentence. An indicative sentence for murder of 40 years and 3 months with a non-parole period of 30 years and 3 months was imposed. 31. The next case was R v Droudis (No 16) [2017] NSWSC 20. The offender was in a relationship with Man Haron Monis ('Monis') and the deceased was the 33 year old mother of Monis' two sons and his former wife. Monis planned the murder of the deceased in a rented apartment they used for child access visits. The offender became involved in the plan. On 21 April 2013, the offender entered the unit with a key provided by Monis. The deceased was attacked by the offender in the stairwell as she ascended to the unit being stabbed to her back, chest and arms suffering 18 wounds. She was then doused in petrol and set alight. The deceased was dead prior to being set alight but it was not clear that the offender would have been aware of this. 32. The murder was to permit the creation of a family unit involving Monis, the offender and the three children. The setting alight of the body was described as "a gratuitous act of defilement on the part of the offender" and bore upon the objective gravity. There was "a significant degree of planning" and a lack of remorse and contrition. It occurred while the offender was on bail. Credit was given to the offender under s 22A of the Crimes (Sentencing Procedure) Act for conduct limiting the facts in issue. 33. It was also found that the relationship with Monis involved controlling behaviour on his part which operated in the offender's favour on a question of a life sentence. The offender was sentenced to imprisonment for 44 years with a non-parole period of 33 years. 34. The other cases in the table were R v Dent [2016] NSWSC 444 which bears no resemblance to the facts of the present case and R v Stani-Reginald to which reference has already been made. 35. The Crown submitted that the offending in the present case was more serious than each of the cases referred to above, pointing to the sexual motivation, the detention and sadistic and degrading treatment of the deceased preceding her death, the savagery and multiplicity of the stab wounds, the fact that the offence was committed in her home, the abuse of trust by a family member and the contemptuous treatment of her body. Consideration 1. The principles to be applied in determining whether a sentence is manifestly excessive were usefully summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86]: "[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. It is also important to remember that the appeal is from the aggregate sentence imposed, not from the indicative sentences. However, the indicative sentences may be a guide as to whether error is established in relation to the aggregate sentence. Notwithstanding, even if the indicative sentences are assessed as excessive, it does not necessarily follow that the aggregate sentence is manifestly excessive. The focus is "whether the aggregate sentence reflects the totality of the criminality involved": see JM v R [2014] NSWCCA 297 at [39]-[40]. 2. As I have indicated, the Court requested sentencing statistics concerning what might be loosely described as serious cases of murder. However it has been regularly emphasised that care must be taken in the use of such material. In R v Pham (2015) 256 CLR 550; [2015] HCA 39 it was pointed out by French CJ, Keane and Nettle JJ at [26] that the point of having regard to comparable cases was to "provide guidance as to the identification and application of relevant sentencing principles" and that "the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence" (citations omitted). As was pointed out at [27] "the range of sentences so disclosed is not necessarily the correct range or otherwise determinative of the upper or lower limits of sentencing discretion": see also Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49]; [53]-[54]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [25]-[28]; [40]-[41]; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [39]. 3. In the present case, the maximum penalty for the offence of murder was life imprisonment with a standard non-parole period of 20 years imprisonment, for the kidnapping offence a maximum penalty of 14 years imprisonment, for the acts of indecency a maximum penalty of 18 months imprisonment. 4. Both the kidnapping offence and the murder were most serious crimes. In the kidnapping the victim's clothing was removed and she was bound and gagged. The sentencing judge correctly described the manner it was carried out, its cruelty and effect as I have set out at [13]-[15] above and [53]-[55]. The kidnapping was carried out for the applicant's sexual gratification and as the sentencing judge pointed out must have been painful, frightening and humiliating for the victim and in her home, "a place that should have been one of refuge and safety for her". Her humiliation would have been compounded by the degrading photographs taken by the applicant during the period she was bound and gagged. 5. The murder was equally serious. It was described by the sentencing judge as I have set out at [14]-[15], [57]-[62] above. She also described the callous method of disposal of the body as I have set out at [61]-[62] above. In addition, the applicant photographed the area where the body was thrown which Dr Furst suggested was in keeping with a wish to access the memories again for pleasure. Dr Furst described the multiplicity of wounds as indicative of a sadistic drive. 6. Further, the sentencing judge rejected a suggestion of genuine remorse and considered that the nature of the crime gave rise to the need of protection of the community. 7. Her Honour also noted the evidence of Dr Furst to the effect that the applicant had never been psychotic and the offence was "driven by deviant arousal of a violent and likely sexual nature". In respect of the kidnapping, Dr Furst noted that the acts of photographing the victim bound and gagged was "in keeping with deriving pleasure or wanting to record the suffering of another human being and … [the] dominance over the other person". 8. The applicant's counsel described the sentence as "crushing". In Sivell v R [2019] NSWCCA 77 Beech-Jones J, in my respectful view, correctly explained the principles to be applied when it is submitted an extremely long sentence may have a crushing impact on the offender. He made the following remarks at [122]: "[122] Where the effect of one or more sentences imposed on an offender is such that their total impact might be said to have a 'crushing impact', that of itself will not be sufficient to establish that the sentence(s) are manifestly excessive. Instead, the correct position is that one matter that is 'considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release' (R v M.A.K.; R v M.S.K. [2006] NSWCCA 381 at [17]). Nevertheless, the 'sentencing court must, however, take care when applying the totality principle' in that '[p]ublic confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending (R v M.A.K.; R v M.S.K. at [18]). The ultimate question is whether the sentence imposed bears reasonable proportionality to the objective gravity of the offences for which the applicant is to be sentenced (ZA v R [2017] NSWCCA 132 at [84]). As Doyle CJ (with whom Debelle and Besanko JJ agreed) stated in R v E (2005) 93 SASR 20; [2005] SASC 332 at 30 [38]: 'Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.' (emphasis added)" 1. In the present case, the sentence was a very severe one and the effect is that the applicant must spend a considerable portion of his life in prison. However, having regard to the criminality involved and the finding by the sentencing judge of the applicant's lack of remorse, that factor did not make the sentence disproportionate to the offences committed to render the sentence unreasonable or plainly unjust. 2. Her Honour in declining to impose a life sentence took into account the matters to which I have referred at [69] above. The sentence ultimately imposed did allow the applicant some potential portion of a useful life if he was released to parole at the expiration of the non-parole period. 3. Counsel for the applicant submitted that there were three matters arising out of the indicative sentences which led to the aggregate sentence being manifestly excessive. The first was that the starting point for the offence of murder prior to the discount of a term of 45 years was too high. She submitted that the sentence for the kidnapping of 10 years prior to the discount was at the highest end of the range of possible sentences. She submitted that once the sentences were accumulated to produce the aggregate sentence, it could be seen that the aggregate sentence was manifestly excessive. 4. I am unable to agree. First, whilst the indicative sentences were undoubtedly severe, of themselves they were not manifestly excessive having regard to the gravity of the offences. Further, the offences of committing an act of indecency, one of which involved a different person to the victim, must also be taken into account. 5. In that context, it must be noted that a very significant portion of the sentences for the offences other than murder were to be served concurrently with that offence. As a mathematical exercise, some 55% of those sentences were to be served concurrently with the sentence for murder. That shows that the sentencing judge paid regard to the principle of totality. Although the kidnapping offence occurred in close proximity to the murder, it was a separate offence warranting separate punishment. The other three offences were separate and deserving of separate punishment, particularly the offence against Ms Chan. 6. Having regard to the close connection of the Form 1 offences to the offences for which the applicant was charged, I do not think they warranted a more severe sentence on the murder offence to which they were attached. However, that makes no difference to my analysis. 7. At the end of the day what needs to be considered is whether the aggregate sentence is manifestly excessive. I have considered the cases to which I have referred at [91]-[95] and [100]-[107] above, but they offer very little assistance because of the wide-range of sentences imposed and the differences in the circumstances in each of them. However, they do show that in a number of the most serious cases, sentences of a comparable severity have been imposed: R v Stani-Reginald; R v Stanford; Vincent; O'Connell v R. 8. Taking all these matters into account, I do not think the sentence imposed for offences of the gravity of those committed by the applicant can be said to be manifestly excessive. 9. In the result, I would make the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. Motion of 22 November 2019 1. As Garling J has pointed out, this motion was dismissed by the Court on 16 December 2019. The reasons given by Garling J for dismissing the motion in substance are the reasons I joined in the order dismissing the motion. 2. GARLING J: I agree with the Chief Justice that the applicant ought to be granted leave to appeal, but I regret that I am unable to agree that the appeal ought to be dismissed. 3. In my opinion, the appeal ought to be upheld and a lesser sentence imposed on the applicant. 4. In addition to these reasons which deal with the applicant's application for leave to appeal and his appeal, it is also necessary to express my reasons for joining in the order of the Court to dismiss a Notice of Motion brought by the Crown. 5. The Court reserved its decision on the appeal on 7 August 2019. On 22 November 2019, the Crown filed a Notice of Motion seeking leave to re‑open the appeal. The applicant was heard on 16 December 2019. The Court made an order dismissing it at the conclusion of submissions. It indicated that it would give its reasons for so going when this judgment was delivered. My reasons for joining in with the Court order are expressed at the end of this judgment. 6. In expressing my reasons on the appeal, I gratefully adopt the factual background and the summary of the sentencing remarks as set out in the judgment of the Chief Justice. I will only repeat matters to the extent necessary. The Sentence Imposed 1. The sentence imposed was an aggregate one of 46 years imprisonment with a non‑parole period of 34 years and 6 months. The non-parole period was that which accorded with the statutory ratio in s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 2. The effect of the sentence is that it commenced in April 2016 when the offender was about 27½ years old, and it will expire in 2062 when the offender will be 73½ years old. If the offender is released on parole, that can only happen after he turns 62. 3. Because her Honour imposed an aggregate sentence, it is relevant to note the indicative sentences. They were: 1. Murder (including the Form 1 offences): 40 years and 6 months; 2. Kidnapping: 9 years; and 3. Committing an Act of Indecency: 1 year and 1 month on each of three counts. 1. These indicative sentences were the subject of a discount of 10% to reflect an allowance for the applicant's plea of guilty. The starting point for the indicative offence of murder was 45 years and for the kidnapping 10 years. 2. As can be seen, the total of all indicative sentences is 52 years and 9 months. The aggregate sentence which was imposed incorporated a degree of concurrence of 6 years and 9 months, thereby reducing by about 11% the total of the indicative sentences. 3. The length of the indicative sentence for the offence of murder makes it clear that it was the most serious offence, and must be taken to have accounted for the most significant proportion of the aggregate sentence. Approach to Appeal against Aggregate Sentence 1. In considering an appeal on the ground of manifest excess in respect of the aggregate sentence, it is open to an appellate court to examine indicative sentences as a guide to whether error may be established in relation to the aggregate sentence. However, even if there appears to be such an error, the Court must nevertheless focus on whether the aggregate sentence is manifestly excessive in its reflection of the totality of the criminality involved: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]; R v Kennedy [2019] NSWCCA 242 at [78]; Gibson v R [2019] NSWCCA 221 at [88]. 2. One issue relied upon by the applicant was the extent of the discount allowed by the sentencing Judge for the pleas of guilty which the applicant entered in the Local Court. 3. Her Honour first discussed the facts and made an assessment of the gravity of the offences, including the possible role of drug use in the offending. Her Honour considered the question of remorse and concluded that she could not be satisfied that the applicant was genuinely remorseful and, in so doing, noted her conclusion that the pleas of guilty which were entered by the applicant were not demonstrative of any remorse. 4. Her Honour then turned to consider the pleas of guilty. She noted that the plea of guilty was entered in the Local Court and the pleas were entered at an early stage. Her Honour noted that, ordinarily, a discount on any sentence that would be otherwise imposed would be appropriately measured at 25% to reflect the utilitarian value of the pleas. This statement accords with the conventional approach. 5. Her Honour then considered the provisions of s 22(1A) of the Sentencing Procedure Act, and concluded at [175] of the sentencing remarks that, in the circumstances of this case: "… a 25% discount would render the penalty disproportionate to the crimes, and be incapable of reflecting their gravity". 1. Her Honour returned to that issue at [204], where she said: "Although a discount of 25% on sentence would reduce the non-parole period below that which is the minimum term the offender must spend in custody to reflect the gravity of his crimes, some recognition should be made of the utilitarian value of the pleas of guilty. I propose to allow 10% for that purpose." 1. In circumstances where an aggregate sentence is imposed, any discount considered to be appropriate is expressed as applying to the indicative sentences: PG v R [2017] NSWCCA 179 at [71]–[76]; Elsaj v R [2017] NSWCCA 124 at [56]. 2. In stating an indicative sentence, the sentencing Judge is expressing the overall sentence. Ordinarily, a sentencing Judge is not required to, and does not, fix a non-parole period for an indicative sentence: s 53A(2) of the Sentencing Procedure Act; AB v R [2014] NSWCCA 31 at [9] and [52]. 3. However, where an indicative sentence is stated for an offence in respect to which a standard non-parole period applies pursuant to Division 1A of Part 4 of the Sentencing Procedure Act, then the sentencing Judge is obliged to fix a non-parole period: s 54B(4). A written record of the non-parole period fixed together with reasons for setting a longer or shorter non-parole period than the standard must be made: s 54B(4) and s 54B(5) of the Sentencing Procedure Act. A sentence is not invalid if there is a failure to comply with these provisions. But such a failure may indicate an error of law, or else support a finding of error in the consideration of an aggregate sentence. 4. The sentencing Judge did not fix a non-parole period for the offence of murder, which carries a non-parole period. However, her Honour's sentencing remarks in [204] suggest that the reduced discount was determined by reference to a non-parole period. 5. A non-parole period is the minimum period of actual incarceration which an offender must spend in full-time custody having regard to all of the purposes of sentencing, the objective seriousness of the crime and the subjective circumstances of the offender: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628-9; R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434 at [34]; Caristo v R [2011] NSWCCA 7 at [27]. 6. Had a 25% discount been applied to the indicative sentence for murder, instead of the 10% discount that was applied, the indicative sentence would have been 33 years and 9 months, rather than 40 years and 6 months. Putting it differently, what would have emerged from the imposition of a higher discount would have been a significantly lesser sentence. That lesser sentence for the most serious offence would have, it can be readily concluded, resulted in a significantly lower aggregate sentence. 7. The concept of a reduced discount, so as to ensure that an appropriate sentence is determined, is a matter which can only be considered after the otherwise appropriate sentence has been determined: R v Borkowski [2009] NSWCCA 102 at [33]; (2009) 195 A Crim R 152. That is not a surprising conclusion. One is not able to discern whether the consequences of applying a discount for the plea of guilty will result in a sentence which is unreasonably disproportionate to the nature and circumstances of the offence until one identifies the appropriate sentence and assesses the effect of the imposition of a discount. The only reasons provided by the sentencing Judge for not allowing a higher discount are those referred to at [143] and [144] above. Whether these amounted to sufficient reasons was not the subject of any argument on the appeal. In the absence of any argument on this issue, it is not appropriate to proceed to a finding of error. 8. However, in all of the circumstances, and giving full weight to the findings of the sentencing Judge about the seriousness of the offending, I am unable to conclude that if the notional starting point of the indicative sentence for murder was 45 years, and an allowance of 25% was made for the plea of guilty, that the resulting indicative sentence of 33 years and 9 months would not adequately reflect the criminality involved in the offence of murder. What is, to me, an inadequate discount applied to the sentence for the applicant's plea of guilty is one fact clearly identified as contributing to the aggregate sentence. 9. It was accepted without debate by the applicant before the sentencing Judge that it was open to the sentencing Judge to apply the provisions of s 22(1A) of the Sentencing Procedure Act. But there was no consideration given to the question of whether it was applicable in circumstances where an aggregate sentence was to be imposed. On appeal, the applicant accepted that it was open to the sentencing Judge to apply a reduced discount to the indicative sentences in the circumstances of the imposition of an aggregate sentence. But it seems to me that the point is not free from doubt. 10. Section 22 of the Sentencing Procedure Act at the time of sentencing was in the following terms: "22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account— (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. …" 1. No submissions have been made on this appeal on this difficult question, namely, whether the provisions of s 22(1A) of the Sentencing Procedure Act can in fact apply to indicative sentences which are not sentences that are actually "imposed", which is the term used in the provision. Any consideration of this issue should await an appeal when the point is fully argued. 2. However, the question for consideration remains whether the 10% discount was one factor which had the effect of contributing to a manifestly excessive aggregate sentence. 3. The second matter relied upon by the applicant was whether the notional starting point of the indicative sentence for murder prior to the imposition of any discount, that being a starting point of 45 years, resulted in a manifestly excessive sentence. Discernment 1. In considering this issue, I have found the decision of N Adams J in Alou v R [2019] NSWCCA 231 at [214]-[223] to be informative and helpful. On any view of the statistics there referred to, an undiscounted (indicative) sentence of 45 years for murder is at the very highest end of the range of sentence assessed as appropriate for murder. That is, of course, putting to one side offences in respect of which a life sentence has been imposed. 2. I have carefully considered all of the facts and circumstances surrounding the seriousness of the crimes committed by the applicant. I have read and reflected upon the cases referred by the Chief Justice in [78]-[83] and [91]‑[106] inclusive. The undiscounted indicative sentence is higher than the sentence imposed as outlined in each of those matters. 3. I have carefully considered the aggregate sentence which was actually imposed. It allowed for a relatively modest period of concurrence for sentences which, at least in regards to the murder and kidnapping indication sentences, were at the top end of the range of sentences available for such offences. 4. Without identifying any patent error, I am nevertheless satisfied that the aggregate sentence is manifestly excessive. That is to say, using the words of N Adams J at [223] it "… is just too high". Put differently, in my judgment the aggregate sentence falls outside the range of sentences which may be imposed in the course of the proper exercise of the judge's sentencing discretion. 5. It follows that I would allow the appeal, set aside the sentence and proceed to impose a lesser sentence. In circumstances where I am in the minority, it is otiose for me to undertake the exercise of re-sentencing the applicant. Crown Motion to Reopen the Appeal 1. As earlier described, whilst the Court was reserved on its judgment on the application for leave to appeal, on 22 November 2019, the Crown filed an application seeking this order: "The sentence appeal proceedings of Derek Barrett v Regina be reopened in order for the respondent to present and rely upon fresh evidence in the proceedings." 1. That application was heard by the Court on 16 December 2019. At the conclusion of oral submissions, the Court made an order that the Motion be dismissed. It indicated that reasons for that order would be given when the judgment of the Court was delivered on the substantive application. 2. These are my reasons for joining in the unanimous order of the Court to dismiss the Crown application. 3. The Crown submitted that the Court had a discretion to reopen proceedings at any time before final orders were made in a number of different circumstances, one of which to receive fresh evidence. The Crown submitted that the overriding principle upon which a court would act on such an application was to determine, having regard to the circumstances of the case, where the interests of justice lay: Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 at [27]; FYD Investments Pty Ltd v Prompt Air Pty Ltd [2017] FCA 1097 at [30]-[33]. 4. The Crown accepted that an appellate court would ordinarily exercise restraint in receiving any new or additional evidence on the hearing of a sentence appeal: Betts v R [2016] HCA 25; (2016) 258 CLR 420 at [12]. 5. The Crown submitted however that the evidence which it proposed to adduce, if granted leave to reopen, was relevant to the Court's consideration of the appeal, although it was fresh and not before the sentencing Judge, because it was capable of demonstrating that the applicant repeatedly violently sexually assaulted his victim whilst she was restrained and, in so doing, derived pleasure from the pain, distress and suffering of the victim. The Crown submitted that the new evidence was plainly capable, when considered with the existing established facts and circumstances, of demonstrating that the sentence imposed upon the applicant was not manifestly excessive because the totality of his true criminality was now able to be known. 6. The Crown's application was opposed by the applicant. The applicant's response did not dispute that the evidence sought to be relied upon by the Crown could be properly categorised as either new or fresh evidence. The applicant submitted that although he had not had the opportunity of examining and testing the new evidence and did not admit the truth of its contents, this Court could nevertheless examine the substantive issues posed by the Notice of Motion. 7. The applicant submitted that to the extent that the Crown intended to use the fresh material on the substantive question of whether the sentence imposed by the sentencing Judge was manifestly excessive, such a course was impermissible, or at least, an inappropriate exercise of this Court's discretion. 8. The applicant accepted that if the Court was otherwise persuaded that the sentence was manifestly excessive and that it was necessary for it to embark on resentencing exercise, then different considerations would apply as to whether or not this material could or ought to be used. 9. The applicant drew attention to the fact that there was no appeal by the Crown against the sentence imposed by the sentencing Judge, and that the Crown did not assert any factual or other error in any of the findings of the sentencing Judge. The applicant submitted that in those circumstances, the new evidence proposed to be adduced simply has no relevance to the issue on the appeal. 10. The applicant also submitted that this was particularly so, given that there was no challenge made by him to any findings of fact made by the sentencing Judge as any part of his application for leave to appeal. Accordingly, he submitted, the tender of the evidence did not go to any issue of fact raised by him. Thus, he submitted, it was not tendered in answer to any issue of any factual kind raised by the appeal. Putting it differently, the applicant submitted that all parties to the application for leave to appeal accepted that, as the basis for this Court's consideration of his application, the factual findings of the trial Judge ought to stand. Hence, it was submitted, any new evidence was simply irrelevant to the substantive question. 11. The applicant also drew attention to the following matters as demonstrating that the new evidence was not only irrelevant but that this Court in its discretion ought refuse to permit the Crown's application: 1. the lack of any application by the Crown for an extension of time within which it could bring an appeal against the sentence which was imposed, upon the basis that the sentence was manifestly inadequate in light of the new evidence; 2. the proceedings before the sentencing Judge had been conducted on the basis of a statement of agreed facts. On that basis, the applicant had exercised a forensic choice to give sworn evidence during the sentencing proceedings. If this material had been led on those proceedings, a different choice may well have been made; 3. concessions made by the applicant before the sentencing Judge included that the offence was an objectively very serious offence of murder falling well above the mid-range for offences of murder, and that various features of what occurred pointed to the applicant intending to obtain sexual gratification from the commission of the offences; and 4. finally, the applicant pointed to the fact that this Court was not in a position to determine factual questions raised by the new evidence proposed to be adduced, and that if the evidence was to be led, he would be entitled to challenge it. 1. The applicant in his submissions also identified a possible significant issue which would stand in the way of the Court granting the Crown's application. That issue arises from the terms of s 12 of the Criminal Appeal Act 1912 in particular the final sentence of s 12(1) which places a limitation on the Court's power in circumstances where it is asked to act on evidence that was not given at the trial. 2. In determining the Crown's application, it is unnecessary to express any opinion on that difficult question in circumstances where the Crown has not mounted any challenge to any factual findings of the sentencing Judge, and where the sentence proceedings were conducted on the basis of an agreed statement of facts. 3. It seems to me that assuming such a power to receive and act adversely to an applicant exists, without so deciding, the exercise of such a power involves a discretion which resides in this Court having regard to all of the facts and circumstances of the particular case. In my view the totality of the discretionary features of this application tell strongly against making the order sought by the Crown. 4. As earlier noted, the applicant does not challenge any factual findings of the sentencing Judge, and the Crown has not brought any appeal suggesting error on the part of the sentencing Judge in any respect, including the finding of fact. The other matters relied upon by the applicant, to which I have referred at [174] above, are also persuasive. In those circumstances, having regard to the context that the sentencing proceedings were conducted on the basis of an agreed statement of facts, I was not prepared to exercise my discretion in favour of the Crown to make the orders sought in the Notice of Motion. 5. In addition, there is no substantive reason to take account of the proposed new evidence. The issue posed for this Court is whether the sentencing Judge erred by imposing a manifestly excessive sentence. No patent error is relied upon in the sentencing remarks. All that is sought to be argued in this Court is that an error of law must have occurred because the sentence was unreasonable or plainly unjust. For the Crown to attempt to bolster its argument by relying upon new evidence would be to place this Court in an invidious position. The Crown does not assert error on the part of the sentencing Judge. No patent error in findings of fact or application of principle is relied upon by the applicant. Yet this Court would be engaged in an exercise of considering the sentence imposed on an entirely different factual basis than that confronting the sentencing Judge. That would be unfair to the applicant. 6. Finally, this Court is not well placed to make findings on disputed questions of fact. It cannot simply be assumed that the material set forth in the affidavits relied upon by the Crown for the purposes of this motion, is accepted by the applicant as being his own conduct occurring in the circumstances suggested by the Crown. 7. This conclusion does not result in any adverse consequence for the administration of justice because it remains open to the Crown, should it decide to do so, to bring charges against the applicant for the offences which it contends are to be found in the new evidence. Any such charges would then be capable of being determined and, if the applicant was found guilty, an appropriate sentence could be imposed. 8. There was no submission put to this Court that the Crown was precluded from engaging in such a process. Putting it differently, the public interest can be served in this case by the Crown proceeding to prefer the charges and have them determined. 9. It is the application of the totality of those circumstances that persuaded me that the Notice of Motion brought by the Crown should be dismissed. 10. WRIGHT J: I joined in dismissing the Crown's notice of motion on 16 December 2019 for the reasons given by Garling J at [163] to [183]. Otherwise, I agree with the orders of Bathurst CJ for the reasons that the Chief Justice has given. ********** Amendments 21 February 2020 - Hearing date: Added "16 December 2019 (Notice of Motion)" Representation: Added counsel appearances on the NOM 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: 21 February 2020