R v VR

1. [1]

   MITCHELMORE JA: I agree with the orders proposed by Hamill J and with his Honour’s reasons.

2. [2]

   WRIGHT J: I agree with Hamill J.

3. [3]

   HAMILL J: The Director of Public Prosecutions appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against the asserted inadequacy of the sentence imposed on “VR” whose name has been anonymised to protect the identity of the victims in his case. [1] VR is a pseudonym created by Colefax SC DCJ on 8 October 2020 and I will refer to him as the respondent.

4. [4]

   On 23 March 2023 a jury found the respondent guilty of 12 counts of sexual intercourse without consent (Crimes Act 1900 (NSW), s 61I) and one count of inciting the commission of an act of indecency (Crimes Act, s 61N(2)). The same jury acquitted the respondent of seven other counts on the same indictment. Pursuant to the procedures in ss 166-167 of the Criminal Procedure Act 1986 (NSW) Judge Craigie, who presided over the trial, found the respondent guilty of two related offences of common assault (Crimes Act, s 61) and one offence of intimidation (Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13). His Honour found the respondent not guilty of another summary offence of common assault. The sentencing proceedings took place on 12 May 2023 and sentence was imposed on 30 June 2023.

5. [5]

   An aggregate sentence was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) and Judge Craigie complied with s 53A(2)(b) by nominating the sentences he would have imposed for the individual offences “had separate sentences been imposed instead of an aggregate sentence”.

6. [6]

   The respondent was sentenced to an aggregate sentence of 11 years and 3 months with a non-parole period of 7 years and 6 months. The sentence commenced on 17 March 2023 (a date agreed upon by the parties to account for pre-sentence custody) and the non-parole period will expire on 16 September 2030. The total sentence will expire on 16 June 2034.

7. [7]

   The Director raises a single ground of appeal asserting that “[t]he aggregate sentence imposed is manifestly inadequate.”

The facts of the offences

1. [8]

   The respondent was charged with offences against three victims and the offences were spread over a period of 17 years. The first two victims were the respondent’s ex-wives and the offences against them occurred between 2003-2004 and 2015-2017 respectively. The third victim was in a serious relationship with the respondent and the offences occurred in 2020. For the purpose of sentencing and the appeal, there was no issue around the facts of the case. What follows is derived largely from the Prosecutor’s submissions on sentence and Judge Craigie’s judgment on sentence which, in this respect, echoed the Prosecutor’s submissions.

2. [9]

   RS was the offender’s first wife. The couple married in 2002 when she was 21 and he was 25. They lived in the respondent’s family home with his parents and siblings in a suburb in the south-west of Sydney. Tension developed early in the marriage and the offences occurred over a 13-month period between 2003 and 2004 primarily in the family home. There were three counts of sexual intercourse without consent (counts 2, 4 and 5). In each case, the prosecution put its case on the basis that the respondent was reckless as to consent. One of the common assault offences dealt with under s 166 of the Criminal Procedure Act related to RS.

3. [10]

   On one occasion, after the couple attended a religious festival, RS was sitting on the stairs and was crying. This followed an incident in the car in relation to which the sentencing Judge found the respondent not guilty in dealing with an assault charge under s 166 of the Criminal Procedure Act. The respondent took her upstairs and engaged in penile/vaginal intercourse, while she was crying and without her consent. RS gave evidence at the trial that:

4. [11]

   The penetration continued until the respondent ejaculated into the victim’s vagina while she continued to cry.

5. [12]

   The Prosecutor submitted that in the months following the initial offending, the respondent assaulted RS on several occasions by slapping, punching, choking, pushing, pulling, and twisting her arm. The sentencing Judge did not refer to this. The next charged offence, sexual intercourse (penile-anal intercourse) without consent occurred in the family home in mid to late 2003. A few days before the offence, the respondent told the victim he wanted to try anal sex. RS said, “[n]o, that’s even more disgusting.” The respondent persisted a few days later and had penile-anal intercourse with RS without consent. No lubricant was used and the respondent ejaculated in the victim’s anus. Throughout the incident, RS cried, said stop and told the respondent it was painful.

6. [13]

   On another occasion, the respondent and RS were arguing in the family home. The victim was on her knees and the respondent became aggressive and told her she was a “piece of shit” and “I’m going to piss on you because that’s what you deserve”. He then put his penis in her mouth and either urinated or ejaculated. The victim said “something came out, and I didn’t know if he had ejaculated, or he actually pissed in my mouth.” The prosecution case was that the respondent was reckless as to whether the victim consented.

7. [14]

   In January 2004 the couple were arguing. The respondent choked RS to the extent that she thought that she was going to die. In her evidence, RS said:

8. [15]

   Following the choking incident, RS packed up her things and went to live with her parents for a time. The marriage was dissolved in 2006 or 2007.

9. [16]

   The second victim was the offender’s second wife, GB. At all relevant times, the couple were living at the respondent’s family home. GB was 30 years of age at the time of count 6 and 32 at the time of counts 7 to 10.

10. [17]

    In June 2015, GB gave birth to the couple’s child. GB had a procedure (an episiotomy) and received medical advice not to have sexual intercourse for six weeks.

11. [18]

    Three to four weeks after the birth, the respondent wanted to engage in sexual intercourse with GB. Based on the medical advice, she said she did not want to. Despite her protests, the respondent said he could have anal intercourse with her. He pushed her face down onto the bed, pulled down her pants and penetrated her anus with his penis. No lubrication was used and GB cried and told the respondent it was hurting. He covered her mouth and continued until he ejaculated. The prosecution case on knowledge of non-consent was that the respondent was reckless as to whether the victim consented.

12. [19]

    On 12 December 2017, the respondent saw text messages between GB and one of her male colleagues from work. He became angry and jealous. The couple stayed awake all night arguing. In the early hours of 13 December 2017, the respondent “sought to punish the victim” by urinating in their child’s christening goblet (a gift from GB’s grandparents) and forcing the victim to drink it. He then had anal intercourse with her and then forced her to lick her faeces off his penis. In her evidence at the trial, GB described part of this incident in the following terms:

13. [20]

    The prosecution argued that the respondent knew the complainant was not consenting. Judge Craigie was satisfied beyond reasonable doubt that the respondent had that state of mind and said of his motivation:

14. [21]

    Later that day (13 December 2017), the respondent again had penile-anal intercourse with GB without lubrication and without her consent. He continued until he ejaculated and remained motivated to punish GB for her contact with her male colleague. The respondent also made GB, who was a vegetarian, eat a fish curry as further punishment, an act the sentencing Judge found “was [intended] to be repellent to GB”.

15. [22]

    The prosecution argued the respondent knew the complainant was not consenting. His Honour found that the respondent “maintained his disposition of anger and punishment” and that he acted “with a very high level of recklessness as to consent”. His Honour said, “it is one of those instances where such a high level of recklessness would overlap what I would regard as the lower level of actual knowledge.”

16. [23]

    In the weeks following the discovery of the text messages, the respondent did not allow GB to return to the office and continued to punish her. The sentencing Judge found that the respondent clearly “maintained his anger” during this period and subjected his then wife “to continuing fear and anxiety”. As a result, her response to further sexual offending was compliant but “her submission … was certainly not consent.”

17. [24]

    One night GB was in the bathroom getting ready for bed. The respondent directed GB to take off her pyjamas and kneel in the shower, he then put his penis in her mouth and started urinating. As he urinated into her mouth and on her face, he said “drink it, bitch, drink it”. She felt “super scared, humiliated and really sad”. She said she was scared and did not have the guts to say anything so she just did what the offender wanted her to do. Judge Craigie said the respondent intended to humiliate the victim as part of his ongoing punishment of her. He accepted the Prosecutor’s submission that the respondent acted with a state of actual knowledge that his victim did not consent.

18. [25]

    MK and the respondent commenced a relationship in early 2019 and by March 2020 (at the time of count 15), they were discussing the prospect of marriage. However, by May 2020 (count 16 onwards), the relationship had broken down and had (to use the Prosecutor’s words in the District Court) “devolved to a blackmail-type situation”. There were four counts of sexual intercourse without consent relating to MK, as well as a common assault and an intimidation offence, each of which was found proved, and dealt with under s 166 of the Criminal Procedure Act.

19. [26]

    Around February and March of 2020, the respondent and MK were regularly meeting at the Merrylands RSL Club. On one occasion, MK told the respondent about an affair she had in a prior relationship. As punishment for not disclosing the affair, the respondent urinated into a bottle and had MK drink it. This action was not subject of a charge.

20. [27]

    A few days later, the couple were at the Merrylands RSL when the respondent became angry. He took MK into the men’s bathroom, pushed her face down onto a toilet, penetrated her vagina and then her anus with his penis. He did this without her consent and did not use lubrication. MK described this as “very aggressive and very painful.” She asked the respondent to stop, but he “persisted to the point of ejaculation”. Judge Craigie was satisfied beyond reasonable doubt that the respondent knew that the victim was not consenting.

21. [28]

    On 9 May 2020, during the COVID lockdown, the couple met near bushland in Voyager Point. The respondent had the victim call a male friend in India. The respondent then questioned the man about his past relationship with MK. The sentencing Judge described this conduct as indicative of the respondent’s ongoing desire to be “judge and jury” of MK and her past relationships. Following the call, the respondent took MK into the bushes and had her perform fellatio on him. This was not a charge and Judge Craigie described it as contextual and in circumstances where MK had become “both dependant and vulnerable”. The respondent turned MK around, bent her over and penetrated her anus with his penis. Despite MK crying, telling the respondent that it hurt and saying, “please stop”, he continued until he ejaculated inside of her. The judge was satisfied beyond reasonable doubt that, at least from the time she asked him to stop, that the respondent knew the victim did not consent. He said the conduct was consistent with the respondent punishing MK.

22. [29]

    After the assault, and as they walked back to the car, the respondent said, “[i]f you don’t disclose all your past information, you’ll be more scared than this”. The following day, the respondent demanded that MK penetrate herself with a cucumber. His Honour accepted this account by MK as truthful and that the respondent had developed a desire for the victim to exhibit “a quite perverted level of submission to his control”. It also indicated the “vindictive urge that appears to have driven much of the offender’s behaviour towards MK” and that he made extreme moral judgments of her and sought to punish her.

23. [30]

    In May 2020, the two met again in Voyager Point. The respondent had MK stand facing the car with her hands on the roof. He then proceeded to penetrate MK’s vagina with his penis and then penetrated her anus. MK told the respondent he was hurting her and asked him to stop but he continued until he ejaculated inside of her. Judge Craigie said this was a continuation of the respondent’s pattern of punishing MK “by way of a sexual assault”.

24. [31]

    On a third occasion in May 2020, the couple attended Voyager Point. The respondent took MK into the bushes where he grabbed her neck and pushed her head down so she was “in a U-shape”. He had forceful penile-anal intercourse with her, during which he pulled her head back by pulling her hair and spat in her face. The victim repeatedly asked him to stop. MK said in evidence:

25. [32]

    One of the assaults dealt with under s 166 of the Criminal Procedure Act was the assault constituted by the respondent pulling MK’s hair and spitting in her face during the sexual assault alleged in count 19. Judge Craigie found MK to be “both compelling in detail and in the way as to that allegation she comported herself”. His Honour was satisfied beyond reasonable doubt that the assault was established:

26. [33]

    The fourth and final assault at Voyager Point took place in May 2020. The respondent and MK had penile-vaginal intercourse while in a car. The respondent then put his penis into her anus without lubrication. MK cried out from the pain but the respondent “continued nonetheless” to have anal intercourse until he ejaculated inside of her. During the assault he put his hand over her mouth to stop her from screaming and kept telling her to “shoosh”. Judge Craigie had the “gravest suspicion” that the respondent was again acting vindictively, knowing that the victim did not consent. However, he was not satisfied of this beyond reasonable doubt and sentenced the respondent on the factual finding that he acted “with a level of indifference such as to represent a very high level of recklessness.”

27. [34]

    On 29 May 2020 the respondent visited MK in her home, where she lived with her mother. MK tried to end the relationship. The respondent intimidated MK, threatening to “uproot her life”, help her ex-husband take custody of their children and disseminate intimate images of her. MK’s mother overheard the conversation in which the respondent said “[d]on’t do this, hehe” and “if you are scared of me now, if you leave me you will be one-hundred times more scared than this”. He threatened to make her “an internet sensation” by publishing intimate videos online. His Honour was satisfied beyond reasonable doubt that the summary offence of intimidation was established and dealt with the matter pursuant to s 166 of the Criminal Procedure Act.

Victim impact statements

1. [35]

   Each of the three victims provided victim impact statements. In view of the extreme nature of the offending, and the extent to which the three women were degraded and humiliated, the statements were restrained. What follows does not do justice to the fortitude and dignity exhibited by the victims but is merely an attempt to record the impact of the offending on each of them.

2. [36]

   RS described the emotional, physical and financial toll of the respondent’s abuse, the consequential impact of losing her youth and the long-lasting impacts of trauma. She said that “[t]he impact was huge since I was only 16 years old when I met him. I was still an adolescence, very innocent…” She said that the respondent took control over her career choice, forcing her to decline a university offer to study law and instead study an IT degree at the same university he attended. The respondent forced RS to resign from her job, move to Brisbane and prevented her from having any contact with family or friends; this led to her parents filing a missing person report with the police. She said “[e]ven though I was with [the respondent] for about 10 years of my life, it is taking many more years to recover from the impact this has had on my life so far and in my current life and my future.”

3. [37]

   She said that her social life had been affected and she had lost precious moments with her parents, sisters and extended family. She withdrew from her family and friends and doubted herself for many years. She feels constantly embarrassed, prefers to be alone and doubts herself and her judgments. She avoids social life so she does not have to share her personal details. The trauma has impacted on her work life and she lost her assertiveness in the workplace and almost resigned over a bullying incident at work. She feels trapped and limited and cannot trust people.

4. [38]

   GB said she grew up in a “loving middle class family”, did well at school, and was “a diligent, confident and content person who had good relationships with family and friends”. After meeting the respondent, who “preyed” on her, she said that she “became a prisoner in our relationship”. After the respondent abused GB, he threatened that if she ever went to the police, a doctor or left him, he would take their child and she “would never see [child’s name] again”. GB said, “I came to the realisation that I needed to escape from our home with [child’s name] because if I did not there was every chance you would kill me”. For a long time after escaping, “[child’s name] would say to [GB] … ‘don’t do this or don’t do that because [the respondent] will beat you’”. After five years of the respondent’s “vile abuse” and “attempts to continue controlling” her, GB said “I am no longer, and I never will be, the person I was before I met you”.

5. [39]

   GB said the effect of the respondent’s abuse had been profound. She struggles to trust people and it took her a long time even to trust her counsellor.

6. [40]

   MK said she was at an extremely vulnerable time of her life when the respondent tormented, abused and humiliated her and “treated me like garbage”. She thought he would never face justice. He had taken advantage of her helplessness. She said “trust is an intrinsic part of life but I have lost it” . She also referred to cultural issues surrounding her shame:

The respondent’s personal case and mitigating circumstances

1. [41]

   The respondent was born in June of 1977. He was around 20-21 years old at the time of the offences against his first wife, around 32-35 when he offended against his second wife, and about 43 when he committed the offences upon MK. When he stood to be sentenced on 30 June 2023, he was 46 years old.

2. [42]

   He was a man with no previous criminal convictions recorded against him.

3. [43]

   Satendra Gupta provided a positive character reference which detailed the work the respondent had done with a religious and cultural organisation. The respondent was a “pioneer” of that organisation and had served in various positions and contributed to it financially as well as being an active participant and organiser. Mr Gupta said “he is simply a very good person”, and described the respondent as “respectful, courteous and measured in all his dealings with other members of the [organisation].” He is softly spoken and very articulate and a person with a great sense of humour. He is well versed in the relevant scriptures and teaching of the religion practiced by members of the organisation. Mr Gupta said, “I cannot fault him as an individual both in personal and official capacity.”

4. [44]

   A woman (“PB”) provided an affidavit that was read on sentence. She also gave evidence of the respondent’s good character at the trial. She was in a relationship with the respondent between 2007 and 2009 and remained close friends with him. She said they had a normal healthy sexual relationship and he never coerced, humiliated or degraded her. The respondent told PB about the allegations when they first emerged, and she was aware the case involved serious allegations made by three different complainants. The respondent supported her during a divorce and encouraged her in her career by assisting her with her studies, job applications and interviews. She had travelled with the respondent overseas and introduced him to her parents. She said he was “a trusted, caring and supportive friend for the last 17 years of my life.” She had never known him to be controlling, coercive or abusive.

5. [45]

   The sentencing Judge was clearly impressed by the character evidence and acknowledged the courage of both PB and Mr Gupta in providing their evidence to the Court in light of the seriousness of the allegations against their friend. His Honour noted that a person’s life “is not to be solely defined by the criminal conduct that brings them before a sentencing judge”. However, his Honour said its “effect in the present case must be limited” referring to the fact that the offending spread over a period of 17 years. Even so his Honour gave “some weight to the finding of prior good character” and noted that the respondent “was capable of being kind and affectionate” in his relationships with women although in the case of the three victims this was “completely overshadowed by the offender’s tendency to control and to escalate in abuse” and cruelty.

6. [46]

   Based on the respondent’s lack of criminal convictions, the periods during which the offender committed no offences, the contributions to the community he had made and the evidence of the character witnesses, Judge Craigie found the respondent’s prospect of rehabilitation to be “fair, at best”. His Honour thought those prospects would depend on his engagement with programmes in custody.

7. [47]

   While recognising the respondent’s right to defend the allegations, he said his denials demonstrated a lack of insight and contrition which might have allowed for some leniency.

8. [48]

   His Honour also found that there was “a requirement for a lengthy period of supervision” upon release, made a finding of special circumstances under s 44 of the Sentencing Act and made a substantial alteration to the “statutory ratio” between the aggregate head sentence and the non-parole period.

The judgment on sentence and the indicative sentences

1. [49]

   Judge Craigie delivered comprehensive, balanced and thoughtful remarks on sentence. No complaint was made by either party to the appeal to his Honour’s findings or legal approach. His Honour emphasised the seriousness of the offending and the extent to which deterrence must play a role. He emphasised the need for there to be adequate punishment for offences which were indicative of a “twisted”, “cruel” and controlling attitude to his victims. His Honour had regard to the purposes of sentencing, the need to protect the community and the requirement that the conduct be denounced. His Honour referred to the offending in appropriately pejorative terms referring to the vulnerability of the victims and the “gross nature” of the offending.

2. [50]

   As indicated earlier the total aggregate sentence imposed was 11 years and 3 months with a non-parole period of 7 years and 6 months. The following table, which is derived from the table contained in the Director’s written submissions sets out, for each count on which the respondent was convicted, the maximum penalty, standard non-parole period and indicative sentences nominated for the purpose of s 53A(2)(b) of the Sentencing Act.

Submissions on the appeal

1. [51]

   There was no dispute between the parties as to the principles applicable where the prosecution appeals against the asserted inadequacy of the sentence.

2. [52]

   The Director submitted that the aggregate sentence and non-parole period did not reflect the totality of the criminality involved in all of the sentences. While acknowledging that the individual indicative sentences were not amenable to an appeal, it was submitted that if those putative sentences were manifestly inadequate, it may inform the question of whether the total aggregate sentence was also manifestly inadequate. The Director submitted that a number of the indicative sentences were well below a legitimate discretionary range for offences of their kind. Further, the aggregate sentence demonstrated a very small degree of notional accumulation and, when combined with the leniency of the indicative sentences, the result was an inadequate aggregate sentence. By way of example, the Director pointed to the fact that there were 12 offences of sexual intercourse without consent, each of which carried a maximum penalty of 14 years and a standard non-parole period of 7 years, “yet the overall sentence reflects accumulation of just over 6 months for each of those offences and around 4½ months on the non-parole period”.

3. [53]

   The Director pointed to the seriousness of the individual offences and the fact that they concerned separate incidents spanning over 17 years and involving three different victims.

4. [54]

   The Director’s written submissions annexed a schedule of cases which, it was submitted, supported her contention that the aggregate sentence was manifestly inadequate. Those cases were Mol v R [2017] NSWCCA 76, R v McKenzie [2022] NSWCCA 119; (2022) 299 A Crim R 40, R v Packer [2023] NSWCCA 87 and Gabrieli v R [2023] NSWCCA 204.

5. [55]

   The respondent submitted that the sentencing Judge was conscious of the maximum penalty and standard non-parole period. It was put that, despite the differences in the indicative sentences for the s 61I offences (which ranged from three to five years), the Director submitted that all of those indicative sentences were manifestly inadequate without reference to the substantial factual difference in the offending. Contrary to the Director’s submission, the respondent submitted that the sentencing Judge gave careful consideration to the differences in the objective criminality and settled upon indicative sentences appropriate to each.

6. [56]

   The respondent pointed to the statistics maintained by the Judicial Commission (“JIRS”) to demonstrate that over 90% of the (329) offences recorded since September 2018 attracted a sentence of 6 years or less, and that there was a range of sentences between one and 12 years. Where there was a plea of not guilty, an interrogation of the JIRS statistics showed a range of 1 to 8 years; again with over 90% of the (157) cases receiving a sentence of 6 years or less. Counsel acknowledged the “limits of bare statistics” but submitted that the usefulness of the statistics as a guide was greater where (as here) there was a sufficiently large sample size.

7. [57]

   As to the comparable cases referred to by the Director (and listed above at [53]), it was submitted that there was no marked inconsistency between the individual sentences indicated in those cases and the indicative sentences announced by Judge Craigie in this case.

8. [58]

   While counsel defended the indicative sentences as being unexceptional and well within an appropriate discretionary range (my phraseology, not hers), it was conceded that the aggregate sentence “may properly be described as lenient”. However, it was submitted that three matters combined to demonstrate the aggregate sentence and non-parole period were available to the sentencing Judge. First, the sentencing Judge was alive to the issue of totality and applied well established principles to the issue. Secondly, any sentence involving a term of imprisonment of 11 years and 3 months and a non-parole period of 7 years and 6 months is severe. The respondent will be 53 when the non-parole period expires, and Judge Craigie was concerned not to impose a crushing sentence. Finally, “a sentence is not linear and increases exponentially as it gets longer”: R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [16].

9. [59]

   The respondent also defended the sentencing Judge’s application of his finding of special circumstances, noting the broad discretion in setting the non-parole period and that no submission was made against such a finding by the Prosecutor appearing at first instance.

10. [60]

    Finally, the respondent submitted that even if error was established, the appellant had failed to discharge its burden to satisfy the court that the sentence should be increased (the “residual discretion”). The Director submits to the contrary.

11. [61]

    The respondent read affidavits to be considered both in the event that error was established and if the Court turned to consider the residual discretion or the issue of re-sentencing.

Determination

1. [62]

   In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Gleeson CJ and Hayne J said at [6]:

2. [63]

   Even so, it is accepted that prosecution appeals against asserted inadequacy should be rare and generally be brought when there is a question of importance to be determined or where an intermediate appellate court can provide guidance as to such principles or on appropriate patterns of sentencing.

3. [64]

   In considering a ground based on a latent error in the exercise of the sentencing discretion (manifest excess or manifest inadequacy), the appellate court must take into account that there is no single correct sentence and that the law allows a wide discretion to a sentencing judge to determine the appropriate sentence by their own instinctive synthesis of a wide number of factors, many of which pull in different directions. In the absence of an identifiable error, an appellate court will not intervene unless the sentence imposed is manifestly unreasonable, plainly unjust or wrong. An appellate court must not intervene merely because its members might individually have imposed a more – or less – severe sentence. The foregoing is a brief overview of a number of High Court authorities on the subject. [2]

4. [65]

   In assessing whether a sentence is, or is not, unreasonable or plainly unjust the Court must undertake its own synthesis of the relevant facts and circumstances of the individual case to determine whether the sentence is so far below (or above) a legitimate discretionary range that it must intervene to correct the error. In doing so, it might have regard to statistics and the outcomes in similar cases, but the limitations on such comparisons and comparators are well established. [3] Each sentencing decision will turn on its own facts and circumstances and only limited guidance can be taken from statistics and judgments relating to other cases.

5. [66]

   Since 2009 and the introduction of s 68A into the Crimes (Appeal and Review) Act 2001 (NSW), the Court is prohibited from taking into account “double jeopardy” in deciding whether to dismiss a prosecution appeal and in determining the length of the sentence if it intervenes. The prohibition was considered by a bench of five judges in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49.

6. [67]

   Despite the number of cases on the database, the JIRS statistics are of limited assistance in the present appeal. The respondent’s reliance on the statistics was largely, if not entirely, directed to a consideration of the indicative sentences. While an analysis of the individual sentences nominated in compliance with s 53A(2)(b) of the Sentencing Act is important to the question of whether the aggregate sentence is unreasonable or plainly unjust, the appeal is against the aggregate sentence and non-parole period. See the summary of principles by R A Hulme J in JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39]-[40] especially at [40](11)-(12).

7. [68]

   The bare statistics encompass all cases under s 61I and the range of offending that might be charged under that section is extremely wide. The overwhelming majority of such cases do not involve multiple victims or offending of such cruelty and depravity as emerged in the evidence at the respondent’s trial (as recorded in the submissions and judgment on sentence). Not many cases charged under s 61I involve sexual assault being used as a form of punishment.

8. [69]

   Each of the four cases relied on by the Director involved multiple victims and were cases involving aggravating features of various kinds. I will not summarise the facts of those cases; the citations are reproduced at [53] and the facts and circumstances can be reviewed on Caselaw NSW and other legal websites. None of those cases involved the same degree of victim degradation demonstrated in the present case and none of the offenders were motivated to punish the victims by sexually assaulting them or featured the same degree of coercive control.

9. [70]

   A case where those features did exist to some extent, and in the context of a marriage, was Giacometti v R [2023] NSWCCA 150 where an aggregate sentence of 14 years with a non-parole period of 9 years and 9 months was not disturbed on appeal despite the finding of error in the sentencing proceedings. There was one victim, two offences under s 61I and five charged offences of violence with others admitted and taken into account. The offender received a discount of 10% from the indicative sentences for his plea of guilty. I made reference to other authorities at [123]-[124] but considered that they were not “truly comparable”. Again, the reader can review the facts and circumstances on legal websites. The degree of violence in Giacometti was far worse than in this case but the degrading and controlling behaviour was of a similar kind. The indicative sentences this Court would have nominated for the individual counts are set out in my judgment (with which Mitchelmore JA and Davies J agreed) at [126]-[132]. The aggregate sentence was not disclosed save as to say it would have been at least as long as that imposed in the District Court.

10. [71]

    I have considered the statistics and these various cases with the circumspection required by the authorities and on the understanding that no two cases are exactly alike and there must be individualised justice in each case.

11. [72]

    I am satisfied the indicative sentences settled on by Judge Craigie are mostly very lenient and, in some cases, unreasonable and manifestly inadequate. For example, the indicative sentences for counts 7, 8 and 10 do not reflect the objective gravity of the particularly egregious facts of the case. Count 8, in which the respondent forced the victim to lick faeces off his penis after he had anally raped her (per count 7) warranted the imposition of the maximum penalty available (18 months) even considering the respondent’s lack of previous convictions. I am unable to imagine a worse example of any offence attracting a maximum penalty of 18 months.

12. [73]

    When the leniency of those indicative sentences is considered along with the extent of the notional accumulation and the substantial downward adjustment of the minimum term, the inevitable conclusion is that the aggregate sentence and non-parole period are unreasonable and plainly wrong. The sentence fails to vindicate the dignity of the three separate victims, [4] or to reflect the grave objective seriousness of offences spanning over a period of 17 years, or to capture the overall criminality involved.

13. [74]

    To succeed in an appeal against the asserted inadequacy of a sentence, the prosecution must also discharge an onus that the court should intervene to increase the sentence. This has come to be called the “residual discretion” but as French CJ explained in CMB v Attorney General of New South Wales (2015) 256 CLR 346; [2015] HCA 9:

14. [75]

    See also Kiefel, Bell and Keane JJ at [54].

15. [76]

    In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green and Quinn”) French CJ, Crennan and Kiefel JJ said at [43]:

16. [77]

    The Director pointed to the fact that the respondent’s release is not imminent and that there was no delay in bringing the appeal. While those things are true, I accept the respondent’s submission that these are, in truth, “neutral” factors when they do not exist. That is because the onus remains with the appellant. Putting forward matters that do not pertain to the case before the court does not discharge that onus. Where an offender may be released soon, where their sentence has already expired, or when the prosecution delays in bringing the appeal, the court is more likely to exercise the discretion not to increase an offender’s sentence. But the converse is not necessarily the case.

17. [78]

    The respondent submitted that the fact that the comparable cases are difficult to find is a reason why the discretion to intervene ought not to be exercised. I am unable to accept that submission: see the comments of N Adams J in R v AD [2020] NSWCCA 275 at [160].

18. [79]

    The respondent read two affidavits on the hearing of the appeal. These were relevant to the residual discretion and to re-sentencing if the Court found error. The affidavits demonstrate that the respondent has had a very difficult time in custody. He has experienced death threats, been assaulted on one occasion, and has witnessed the stabbing of another inmate. Most recently he saw “the aftermath” of an inmate who had committed suicide by hanging himself. As a result, he requires substantial psychological intervention.

19. [80]

    Notwithstanding the matters raised in the affidavits, all of which I accept, I am satisfied that the prosecution has discharged its onus in respect of the residual discretion and that the Court must allow the appeal and increase the sentence. The basis of that conclusion is simply that the sentence imposed in the District Court is so far below the level of sentence capable of reflecting the extremely grave objective circumstances. This Court is compelled to intervene and must increase the aggregate sentence and non-parole period.

Re-sentencing

1. [81]

   I have considered the purposes of sentencing in s 3A of the Sentencing Act. This is a case where denunciation, adequate punishment and recognition of the harm done to the victims must receive significant weight. It is also a case where general deterrence has an important role. Based on his experience in custody, I think the deterrent impact of the sentence on the respondent personally has already been achieved.

2. [82]

   There is no evidence of remorse on the respondent’s part and he appears to have no insight into the harm he has done. As Judge Craigie noted, there is no evidence of any psychological explanation for the depravity and coercive conduct in which he engaged.

3. [83]

   However, some of the offences occurred many years ago and there are lengthy periods in the meantime where the respondent committed no offences. The affidavits tendered on sentence demonstrate that the respondent is a man who is capable of being a valuable and contributing member of the community. As the sentencing Judge found, the evidence of PB shows the respondent is also capable of engaging in a functional and healthy relationship. His prior good character is not a matter of great weight in all of the circumstances, but it is relevant to his prospects of rehabilitation and is a mitigating factor under the Sentencing Act.

4. [84]

   Like the sentencing Judge, I would find special circumstances although the adjustment I propose to the non-parole period is not as great as that settled on by Judge Craigie. The adjustment to the aggregate non-parole period will not, as a matter of proportional arithmetic, be precisely the same as the indicative sentences. The aggregate non-parole period represents the minimum period of incarceration, bearing the totality of criminality involved in all of the offences having regard to principles of totality.

5. [85]

   In terms of notional concurrence and accumulation, there would be a significant degree of concurrence in the sentences imposed for offences relating to the same victim. Conversely, there must be marked cumulation in relation to the offences committed on the different victims. That consideration is tempered by considerations of totality and the requirement that the sentence is not crushing notwithstanding the appalling and distinct courses of conduct engaged upon in relation to three separate victims.

6. [86]

   The table below this paragraph sets out the individual sentences and (where necessary) non-parole periods (NPP) that would be imposed if I were not imposing an aggregate sentence. In one instance, count 8, I would have imposed the maximum penalty for the reasons given at [71] explained earlier. In the case of the first assault, the indicative sentence is lower than that proposed by the sentencing Judge. One indicative sentence (that nominated for the first sexual assault) is the same as that proposed by the sentencing Judge. The remaining indicative sentences are somewhat higher than those proposed by the sentencing Judge and in the case of counts 7 and 10, the indicative sentence is substantially higher.

Orders

1. [87]

   For those reasons I would make the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      The sentence imposed in the District Court is quashed and in lieu thereof:

   3. (3)

      The respondent is sentenced to an aggregate sentence of 14 years, 6 months commencing 17 March 2023 and expiring on 16 September 2037 with a non-parole period of 10 years commencing 17 March 2023 and expiring on 16 March 2033.

   4. (4)

      The respondent will be eligible for release to parole at the expiration of the non-parole period.