Hildebrand v R

1. [1]

   PAYNE JA: I have read the judgment of Davies J in draft. I agree with his Honour’s proposed orders and with the reasons for dismissing grounds 1-2 and 4-6 of the appeal.

2. [2]

   In relation to ground 3, I agree with his Honour that the decision of this Court in Ilic v R [2020] NSWCCA 300 came to the correct result. As this case, like Ilic, proceeded by way of concession by the NSW Office of the DPP (albeit in consultation with the Commonwealth DPP), I would prefer to express my own reasons for concluding that a federal offence, here under ss 474.17(1) and 474.19(1) of the Criminal Code (Cth), cannot be taken into account using the “Form 1” NSW procedure but, rather, must be considered separately or taken into account in relation to another federal offence using the procedure provided by s 16BA of the Crimes Act 1914 (Cth).

3. [3]

   Ground 3, as amended orally and subsequently in writing after the hearing, provided:

4. [4]

   The existence of federal and state criminal offence provisions covering the same or related conduct is a constitutional reality of our federal system. The growing catalogue of federal offences has meant, over time, a greater potential for overlap. There have been, since the 1980s, separate federal and NSW Offices of the Director of Public Prosecutions. The Acts under which each office is created give the respective Director power to present indictments and to delegate the power to sign indictments. It was common ground that the potentially overlapping nature of federal and NSW offences has meant that within the NSW Office of the DPP there are officers with a delegation from the Commonwealth DPP to sign indictments alleging the commission of a federal crime (and I infer the same is true in the Commonwealth Director’s office).

5. [5]

   It is not unusual for federal and state counts to be joined in the one indictment, whether prosecuted by the state or federal DPP: see, for example, R v Yates (1991) 102 ALR 673; (1991) 56 A Crim R 29 where the Commonwealth Director prosecuted state offences.

6. [6]

   A court sentencing an offender convicted of at least one federal and NSW offence arising from one indictment must apply two separate sentencing regimes. Those separate regimes, however, are designed in our constitutional and legislative structure to work together. Sections 68 and 79 of the Judiciary Act 1903 (Cth) play a central role in reconciling the intertwining operation of federal and state sentencing provisions.

7. [7]

   The exercise of reconciling federal and state sentencing regimes has not always been comfortable. For example, the introduction of the Sentencing Act 1989 (NSW), and its relationship with the Commonwealth Prisoners Act 1967 (Cth), caused particular controversy: see R v Oti (1990) 19 NSWLR 561.

8. [8]

   Originally, procedural matters and all sentencing issues were dealt with in federal crime by adopting the procedure, including the sentencing procedure, of the state where the offence was prosecuted. Section 80 of the Constitution ensured that federal crime was prosecuted in the state with the closest connection to the alleged criminal conduct.

9. [9]

   Over time, the structure of a separate Commonwealth sentencing regime has grown. The most significant growth in that separate structure in comparatively recent times was the introduction of Part IB of the Crimes Act. While effecting a significant change in the approach for federal sentencing, Part IB did not cover the field of sentencing: see, for example, Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370, cited with approval in Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 by Gleeson CJ at [20]-[23]. At the same time, sentencing procedures in NSW have grown more complex: see Crimes (Sentencing Procedure) Act 1999 (NSW) and, for example, Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and the numerous subsequent cases addressing “Muldrock error”.

10. [10]

    Despite federal and NSW sentencing procedures becoming more complex it is clear that s 68 of the Judiciary Act should be given a construction to allow people charged with federal and state crime to be dealt with as far as possible harmoniously with state offenders in the state where they are prosecuted, as s 80 of the Constitution requires.

11. [11]

    In Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, McHugh J made the following pertinent observations at [59]:

12. [12]

    In Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8, Gleeson CJ held at [4] that:

13. [13]

    There is a concept of inconsistency which underlies and qualifies the extent to which state sentencing provisions are picked up and applied as surrogate federal laws by s 68 of the Judiciary Act. In Putland, Gleeson CJ explained at [7] that:

14. [14]

    Thus, inconsistency for the purposes of s 68 of the Judiciary Act is not limited to direct textual inconsistency.

15. [15]

    The issue in the present case arises in the context of separate federal and NSW regimes for taking other offences into account. Section 16BA of the Crimes Act provides, relevantly:

16. [16]

    Section 16BA (formerly numbered as s 21AA) was introduced in 1982: see the Crimes Amendment Act 1982 (Cth). The provision was renumbered to s 16BA in 1990: see the Crimes Legislation Amendment Act (No. 2) 1989 (Cth).

17. [17]

    The NSW “Form 1” procedure is established by Part 3 Div 3 (ss 31-35A) of the Crimes (Sentencing Procedure) Act. Section 32(1) provides:

18. [18]

    Section 33 provides:

19. [19]

    This procedure for taking additional charges into account when sentencing has had a statutory basis in NSW since 1955. It was originally set out in former s 447B of the Crimes Act 1900 (NSW), which was introduced by s 4(e) of the Crimes (Amendment) Act 1955 (NSW). The procedure was derived from the non-statutory practice of the English courts: see Second Reading Speech to the Crimes (Amendment) Bill 1955 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3234); Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 per Spigelman CJ at [1].

20. [20]

    The statutory provisions governing the authority and procedure for taking additional offences into account were later set out in former s 21, and then s 161, of the Criminal Procedure Act 1986 (NSW). They are now contained in Part 3 Div 3 (ss 31-35A) of the Crimes (Sentencing Procedure) Act which I have set out above.

21. [21]

    Form 1 was formerly contained in Sch 1 to the Crimes (Sentencing Procedure) Regulation 2000 (NSW). The prescribed “Form 1” was repealed by the Crimes (Sentencing Procedure) Amendment (Forms) Regulation 2004 (NSW) which, in the case of certain forms, replaced the requirement to use the “prescribed form” with a requirement to use the “approved form”. “Approved form” was defined to mean a form approved by the Minister.

22. [22]

    Clause 4 of the Crimes (Sentencing Procedure) Regulation 2017 (NSW) now provides that a list of additional charges under s 32 of the Act is to be in the “approved form”. As no form has been approved for the purpose of that section, the position is governed by the transitional provisions in Part 14, cl 54 of Sch 2 to the Crimes (Sentencing Procedure) Act, the effect of which is to provide, relevantly, that a form “to the effect of” Form 1 may be used for the purpose of s 32 until such time as regulations are made under s 103(2) of the Act (which authorises the making of regulations requiring any document required by the Act to be in a form approved by the Minister). As McCallum JA explained in Ilic at [14], technically, the present requirement is to file the list of additional charges on a form “to the effect of” the now repealed Form 1.

23. [23]

    Having sketched these provisions I conclude that there is no necessary inconsistency between federal and state provisions under which all outstanding charges against an offender are dealt with in one hearing by one judicial officer. So much is established by Adams v Western Australia [2014] WASCA 191; (2014) 245 A Crim R 351.

24. [24]

    In Adams, the relationship between the Sentencing Act 1995 (WA) and the federal sentencing provisions was under consideration. The Court of Appeal of Western Australia held that provisions of the Western Australian Sentencing Act allowing all outstanding offences to be dealt with in one sitting were able to be picked up and applied by s 68 of the Judiciary Act to permit a federal offence to be dealt with under that Act. Sections 32 and 33 of the Sentencing Act relevantly provided:

25. [25]

    The critical difference between the Western Australian provisions considered in Adams and the “take into account” provisions in NSW, however, is that the Western Australian Sentencing Act required the court to convict and sentence the offender for the federal offence involved. At [44], Buss JA, with whom Newnes JA relevantly agreed, said:

26. [26]

    That is, the relevant provisions of the Western Australian Sentencing Act provided that a discrete sentence was required to be imposed for each federal offence. That is a critical distinction from the NSW procedure where a federal offence is “taken into account” in sentencing for a state crime.

27. [27]

    Turning to this case, s 68 of the Judiciary Act is a provision of broad application which must be applied in circumstances where, historically and, although to a lesser extent, still today, the administration of federal criminal law is organised on a state by state basis. Subject to inconsistency with federal provisions of the kind identified by Gleeson CJ in Putland, each state administers federal criminal law upon the same footing as state criminal law: Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19, 560 (Dixon J); R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; [1974] HCA 36, 345 (Mason J); R v Murphy (1985) 158 CLR 596; [1985] HCA 50, 617 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); Leeth v Commonwealth (1992) 174 CLR 455; [1992] HCA 29 , 467 (Mason CJ, Dawson and McHugh JJ).

28. [28]

    Despite the breadth of s 68 of the Judiciary Act, I have concluded that the Director’s concession that there is a relevant inconsistency here was correctly made. This is because of the operation of ss 16A and 19AJ of the Crimes Act.

29. [29]

    Section 16A of the Crimes Act relevantly provides:

30. [30]

    Section 19AJ of the Crimes Act provides:

31. [31]

    Fundamentally, s 16A requires, subject to the permission to take a federal offence into account as provided by s 16BA(1), a federal crime to attract a sentence that is stated and imposed. The matters which must be taken into account in addressing the correct sentence (albeit that they are not a code) are identified in s 16A(2). These matters overlap but are not identical to the matters required to be taken into account by Div 1 of Part 3 of the Crimes (Sentencing Procedure) Act.

32. [32]

    In the NSW “Form 1” procedure there is no sentence which is imposed. In Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, the process of “taking into account” crimes in sentencing for other crimes was explained by Spigelman CJ as follows:

33. [33]

    The text of s 16A, together with its evident purpose, discloses an intent that for federal sentences the court has to impose a sentence or make an order that is of appropriate severity in all of the circumstances of that offence, unless “taken into account” in the way provided by Part IB of the Crimes Act, s 16BA. Taking into account a federal offence in assessing the salience of a conviction for a state offence is inconsistent with the requirement of s 16A and the structure of Part IB which permits (in s 16BA) federal offences to be taken into account, but only in relation to a conviction for a federal offence. In “taking into account” a federal offence in assessing the salience of a NSW offence, there is an inconsistency between the matters which must be taken into account for the federal offence (s 16A(2)) and the matters which must be taken into account in fixing the State sentence (Div 1 of Part 3 of the Crimes (Sentencing Procedure) Act).

34. [34]

    My additional reason for accepting the concession made by the Crown is that s 19AJ of the Crimes Act provides that the court is not authorised to fix a single non parole period or to make a single good behaviour bond in respect to both federal sentences of imprisonment and state or territory sentences of imprisonment. The purpose of s 19AJ of the Crimes Act is that offenders should receive separate non‑parole periods for federal offences and state offences. In this case, each of the offences referred to in ground 3 involved a state offence for which a head sentence and a non‑parole period was imposed. At least in a practical sense, the non‑parole period in each case encompassed a federal offence that was included on the Form 1. That also gives rise to inconsistency of the kind identified by Gleeson CJ in Putland.

35. [35]

    Accordingly, I agree with the orders proposed by Davies J. I note that in the course of argument, counsel for the applicant submitted that in the peculiar circumstances of this case, where there can be no criticism of the sentencing judge for sentencing the offender as both parties urged her to do, “all matters should be remitted and there would be no application for bail”.

36. [36]

    DAVIES J: On 7 June 2018 the applicant pleaded guilty to 26 charges under both Commonwealth and State law, and asked for 18 additional offences to be taken into account on ten separate additional offence documents under s 33 of the Crimes (Sentencing Procedure) Act (NSW) and s 16BA of the Crimes Act (Cth).

37. [37]

    The applicant was committed for sentence to the District Court. On 27 September 2019 he was sentenced by her Honour Judge Tupman for these offences. The offending took place over almost a ten year period from 2007 to 2016 when the applicant was aged from 19 to 28 years.

38. [38]

    The offences are as follows:

39. [39]

    The offences taken into account under State or Commonwealth legislation are as follows:

40. [40]

    The sentencing judge imposed a number of stand-alone and aggregate sentences, having grouped the sentences generally in relation to particular victims. In due course, when summarising the facts, I will identify the sentences imposed as well as the indicative sentences where aggregate sentences were imposed. The overall effective sentence was a sentence constituting a non-parole period of 15 years commencing 31 May 2017 and expiring 30 May 2032 with a balance of term of five years expiring 30 May 2037.

41. [41]

    The applicant filed a notice of appeal relying on the following grounds:

42. [42]

    At the hearing of the appeal, counsel for the applicant accepted that, contrary to what was asserted in ground 3, the sentencing judge had not imposed an overall aggregate sentence. Counsel sought, and was given, leave to amend ground 3. Ground 3 was amended to read:

The facts

1. [43]

   The sentencing judge had before her a document called “Statement of Agreed Facts”. It extended to 48 pages and 211 paragraphs. Her Honour quite correctly said that it was not a statement of facts at all but was, in large part, a summary of evidence that would be relied on to prove each of the offences. Her Honour said that it ought to have been simplified. I agree. Her Honour carried out a most difficult sentencing exercise by very competently summarising the offending, largely by grouping the offences in relation to each of the victims. The summary that follows hereafter is taken from her Honour’s Remarks on Sentence.

2. [44]

   The first offences which occurred in 2007, involved the victim BB. At that time the applicant was aged 18 years. There were ten charges in relation to which BB was the victim. Some of these were substantive offences and some were taken into account. Those offences spanned more than a nine year period.

3. [45]

   BB was born in July 1989. She lived with her parents in Sydney, and in 2006 she was aged 17. She was in year 11 at high school. She completed high school in 2007.

4. [46]

   She met the applicant in August or September 2006 through mutual friends, and commenced some contact through social media, including MSN Messenger. They began what is described in the facts as an on-again, off-again relationship. Between 2007 and 2017 the applicant demanded that BB forward to him nude images of herself, and threatened that he would forward these images to her friends and family if she did not engage in sexual acts with him.

5. [47]

   In early January 2007, she was with him in his car, driving around the Arncliffe area. They went to a golf course. They were outside the car and the applicant pulled down his pants and exposed his erect penis. BB turned away, and as she did so the applicant pushed her using both his hands. She fell onto a rock and grazed her knee. When she turned around and saw him standing close by, his erect penis was millimetres from her face. She attempted to push him away but could not move him. She told him to stop but he did not move. He began masturbating with one hand. He put his other hand behind her head and pulled her head towards him. He forced his penis into her mouth. That caused her to choke and gag, and she started crying. She tried to push him away but could not break free because he was holding her head with both his hands. He ejaculated into her mouth and then did up his pants. They then returned to the car and he drove her back home. That offence constituted sequence 57 of sexual intercourse without consent.

6. [48]

   The first offence being taken account on a Form 1 (sequence 58 of sexual intercourse without consent) occurred in a similar period in the yard of the house where the applicant lived in Bardwell Valley. The applicant took BB by the hand and led her to the side of the house. He took her under the house where there was a door and led her inside where it was dark. He pulled down his pants and began to masturbate until his penis was erect. BB said that she did not want to do that and started to cry.

7. [49]

   The applicant took hold of her shoulders and forced her to her knees. He then placed his hand on the back of her head, pulling her towards his crotch. He thrust his penis into her mouth. She choked and gagged. He held her head with both hands and continued thrusting, whilst at the same time pulling her head back and forth. He ejaculated into her mouth. He then pulled his pants up and went back into the house, leaving her under the house.

8. [50]

   The other offence being taken into account on a Form 1 in respect of sequence 57 was sequence 59 (sexual intercourse without consent). It occurred in these circumstances. In July 2007, BB received some compensation following a knee injury. She spoke to the applicant about it. As a joke, she told him that she would buy him a motorcycle. She later made clear that it was joke and that she had no intention of doing so. He became angry and accused her of dishonesty. BB was 17 or 18 at the time and the applicant was about a year older.

9. [51]

   The applicant claimed that BB was indebted to him because of what he described as her deception. He told her that she had to give him oral sex, which he then and thereafter described as “head jobs”, to make up for it. He said to her, "You owe me times two", and from that time BB started to receive messages from the applicant with the characters "x2" meaning, times two. The sentencing judge noted that that was the beginning of a long period of the use of carriage services to threaten and blackmail young women either into sending him sexually explicit photos or performing sexual acts with and on him.

10. [52]

    In August 2007 BB received a text from the applicant, telling her to come to his house in Bardwell Valley. It was night time. BB saw him in the living room with the TV on but no other lights. BB sat on the far end of the lounge away from him. The applicant ignored her until about an hour later when he said, "Well, what are you going to do? Why did you come all this way for?".

11. [53]

    The applicant undid his pants and began to masturbate until his penis was erect. At this stage, BB was closer to him. He placed his hand on the back of her head and forced her head down towards his crotch. She resisted, but he continued to force her head down. Ultimately he managed to force his penis inside her mouth. He then took hold of her head with both hands and pulled her head up and down on his penis. After a few minutes he ejaculated into her mouth. He did up his pants and returned to watching TV. She left a short time later.

12. [54]

    Her Honour was of the opinion that the substantive offence (sequence 57) was slightly below the mid-range. Her Honour found that the two offences on the Form 1 were equally serious and separate instances of the offence, and that the sentence to be imposed must be longer for that reason. Her Honour considered that the proper sentence was one of five years’ imprisonment with a three year non-parole period. That sentence contained a discount of 25% for an early plea.

13. [55]

    The facts constituting sequence 60 (sexual intercourse without consent) were these. During the first half of 2010, BB's brother was arrested by police. BB asked the applicant for help because she knew that he had studied criminology at university. She went to his house at Bardwell Valley one evening in the first half of 2010. They were sitting outside near a fire pit. She explained the situation with her brother, and the applicant said that he could help her. He said he had a lawyer friend to whom he would speak. He led her into his bedroom and put her on his bed. He undid his pants. He exposed his penis and masturbated himself until he was erect.

14. [56]

    He told BB that she needed him, and said that without his help her brother may go to gaol. BB sat on the edge of the bed with her back to him. The applicant grabbed her elbow and pulled her around, but she resisted and refused to turn around. That happened several times and each time she refused to turn around and face him. At one point he grabbed the back of her head and forced his penis into her mouth, holding her head until he ejaculated into her mouth. She left soon afterwards.

15. [57]

    The facts in relation to sequence 61 (sexual intercourse without consent), which was included on a Form 1, were as follows. In March 2012, BB's brother was again arrested by police. By this time the applicant was a serving New South Wales police officer, about which BB was aware. She again approached the applicant for advice. The applicant told her that he knew a lawyer and that he could get some advice from him. He said that it would not cost her anything “if you know what I mean".

16. [58]

    In July 2012, BB’s mother died, and she turned to the applicant again for guidance and support, including in relation to her brother's pending court matter.

17. [59]

    In August 2012 BB went to the applicant's house in Bardwell Valley. They were in the rear yard of the house. The applicant asked her questions about her brother. He asked if she had spoken to the police. The applicant offered to make calls for her. BB ignored him, and he said to her:

18. [60]

    BB thought that the applicant had the ability to jeopardise her brother's court proceedings if she did not comply with his request. He put his arm around her, unbuttoned his pants, unzipped his fly and pulled out his erect penis. He put her hand on his penis, but she pulled it away. He took hold of her hand and held it down on his penis. He said:

19. [61]

    The applicant moved his hand to the back of her head and pushed her head towards his crotch. She resisted, and he said:

20. [62]

    BB, knowing that he was a police officer, thought that he had the power he was suggesting. Accordingly, she performed oral sex on him for a few minutes before he ejaculated into her mouth. She did this only because of the threats that he made and not because she consented.

21. [63]

    Her Honour found that the substantive offence was a little below the mid-range, but her Honour said that the sentence must be longer than it might otherwise be to take into account in a meaningful way the criminality involved in the additional offence. Her Honour said that the facts for the Form 1 offence were more serious than those comprising the substantive offence. Her Honour said that an appropriate sentence was five years’ imprisonment with a three year non-parole period.

22. [64]

    The facts concerning sequence 62 (sexual intercourse without consent) were these. In June and July 2014 BB received a text from the applicant saying "x2", with further threats that he would forward the collection of nude photographs he had of her to her boyfriend. As a result of feeling threatened by this, she went to his house in Campbelltown one evening. He had two large dogs in the house. She was afraid of them because they were large and acted aggressively.

23. [65]

    When she arrived at the house, she saw the applicant sitting on the lounge with a glass of wine. He was playing with a knife, and appeared to be acting erratically, and was on edge. He told her that he had guns in the house. He also told her that he was working undercover infiltrating a motorcycle gang.

24. [66]

    They sat on the lounge for a few hours and then she left. As she drove away, she received texts from him simply saying, "x2". She understood that was a demand or request for oral sex, and she felt under a degree of compulsion because of what he just told her and also because of his erratic behaviour. She returned to the house.

25. [67]

    When she arrived, she found him in the lounge room masturbating. She walked over and sat on the lounge. He leaned over and grabbed her by the wrist and dragged her across to him. He placed his hand on the back of her head and forced her down towards his crotch. She resisted, but he continued and forced his penis into her mouth. She performed oral sex on him for a few minutes before he ejaculated into her mouth. When he had finished, he continued to watch television, and she left.

26. [68]

    The offence in sequence 63 (sexual intercourse without consent) occurred in December 2014. It was placed on a Form 1 attached to sequence 62. One evening the applicant sent BB many text messages. She ignored them, but then received a text message which again said "x2". The applicant also threatened to disseminate the nude photos of her if she did not comply.

27. [69]

    BB went to his house in Campbelltown. She saw him seated on the lounge and he appeared to be drunk. She saw a number of knives on the coffee table in front of him. The two dogs were present. The applicant picked up one of the knives and started playing with it. He opened and closed it a number of times. The blade was about 20cm long. He started to tell her how he hunted and killed pigs. He waved and gestured with the knife in the air. While he did this he reminded her that he had guns and knives in the room. He started to watch television and did not speak for a few hours.

28. [70]

    After midnight, BB decided to leave. The applicant said to her:

29. [71]

    She sat down next to him. He undid his pants and took out his erect penis and placed his hand on the back of her head. He pushed it down towards his crotch. She tried to resist but he forced her to give him oral sex for a few minutes before he ejaculated into her mouth. She left shortly afterwards.

30. [72]

    The offence in sequence 64 occurred in April 2015. It was also placed on a Form 1 attached to sequence 62. BB agreed to have dinner with the applicant at his house in Campbelltown. During dinner, he left the table and did not return. She did not know why he had left the table, so she left and commenced to drive home. She then received some text messages from him in which he referred to her boyfriend, implied a threat to tell her boyfriend that she was there with him, and threatened to send her boyfriend the nude photos that he had of her. He instructed her to come back to the house and sent a text saying “x2”. BB drove back to the house.

31. [73]

    When she arrived the dogs barked at her and harassed her. The applicant pushed them away. He then stopped in front of her and undid his pants. He pulled out his erect penis, pulled her head towards him and forced his penis into her mouth. He held the back of her head and manipulated her head so that she engaged in oral sex with him. She choked and gagged when he did that, and she had difficulty breathing. She tried to pull away, but he would not allow her to do so, and continued to thrust into her mouth. She tried to push him away, but could not do so because he was too strong. After a few minutes he ejaculated into her mouth. She left shortly afterwards.

32. [74]

    Her Honour determined that the offence in sequence 62 was objectively serious, as were the other two offences. Her Honour said that they had to be taken into account in a meaningful way. Her Honour said that the appropriate sentence was six years imprisonment with a four year non-parole period.

33. [75]

    The offence in sequence 65 (sexual intercourse without consent) also involved BB. On 2 September 2015 BB agreed to have dinner with the applicant in Campbelltown. After dinner, she dropped him at his house and then started driving home. He then started to send her text messages directing her to return, and again wrote "x2".

34. [76]

    BB pulled over to the side of the road and called the applicant. During the conversation he said to her:

35. [77]

    In those circumstances, BB drove back to his house. The applicant was sitting on the lounge. BB sat on the far end of the lounge and remained frozen. After about 20 minutes, he said to her:

36. [78]

    BB refused and they had an argument. The applicant then said,

37. [79]

    The applicant undid his pants and took out his erect penis. He put her hand on his penis but she pulled away. He did it again but she looked away from him. He put his hand on the back of her head and pushed it towards his crotch. He forced his penis into her mouth and forced her to engage in oral sex with him for about ten minutes, after which he ejaculated. She left shortly afterwards.

38. [80]

    Sequence 66 (sexual intercourse without consent) on the Form 1 occurred in February 2017. Prior to that time in October 2015, BB had moved overseas with her boyfriend. The applicant continued to demand nude images from her, and threatened to forward the photos to her brother and her workplace if she did not do so. Because of these threats, she forwarded him several images whilst she was overseas. On 26 February 2017, BB came back to Sydney to renew her work visa for the UK.

39. [81]

    On 27 February 2017 BB agreed to visit the applicant at his home in Campbelltown. She slept on the lounge. The following morning there was an argument between them. He asked why she had visited him if she was going to ignore him. He again used the term “times two”. He also said:

40. [82]

    The applicant undid his pants and took out his erect penis. He put his hand on the back of her head and pulled her down towards his crotch. She resisted and pushed backwards. He continued to push, and applied more pressure to the back of her head, overpowering her and forcing his penis into her mouth. She performed oral sex on him for a few minutes until he ejaculated into her mouth. She left a short time later, and returned to the UK a week later.

41. [83]

    On 13 March 2018 BB made a formal statement to the police, outlining the full range of offences committed against her by the applicant.

42. [84]

    In relation to the sequence 65 offence, her Honour said that all the same findings applied as earlier, in terms of the objective criminality, including the threats and the fact that he was a serving police officer. Her Honour said that an appropriate sentence was five years’ imprisonment with a three year non- parole period.

43. [85]

    Sequence 34 (using a carriage service to menace) involved the victim AB. The applicant had been a close friend of AB's brother and her family since 2002, and was a frequent visitor to her home. He started corresponding with AB via social media in 2003. AB turned 17 in May 2007.

44. [86]

    In September 2007 she was befriended by someone on MSN messenger with a username that contained the initials DJ. She thought that the request had come about because it was someone who shared her interest in under-18 dance functions. In fact the person communicating with her was the applicant using an assumed identity. He did not identify himself to her, but provided some information to her about her personal circumstances.

45. [87]

    In February 2008, the applicant, using the assumed identity, told AB that he had photos and videos of her getting dressed and naked. He threatened that unless she sent him a photograph of herself, he would send the other photographs of her to her friends, family and work. The demands escalated over time, with him insisting that she send photographs of herself naked including pictures of her breasts. AB blocked his identity from her account, but she was subsequently befriended by a new MSN user with a different account name. This was also the applicant using a different identity. He continued to make demands of her, threatening that he would ruin her life if she did not do what he asked.

46. [88]

    In April 2008 AB and her boyfriend reported the matter to Kogarah Police. There was no evidence of what happened as a result of that report.

47. [89]

    Her Honour said that this brief summary of the offence did not adequately deal with the fear and trauma suffered by AB as a result of the ongoing threats and menacing. Her Honour held that it was a serious instance of using a carriage service to menace. Her Honour said that after a discount for the guilty plea, the appropriate sentence was a fixed term of nine months’ imprisonment.

48. [90]

    Sequences 24 and 30 (using a carriage service to menace) involved victims CD and EF. In 2008 EF commenced a relationship with the applicant. CD was one of EF’s close friends from high school, and was also studying at the university. All three would often socialise together.

49. [91]

    At some stage the applicant told EF that he had seen some sexually explicit photos of her friend CD and her boyfriend on the boyfriend's phone. This was not true. At some time in 2010, in general conversation with him, CD told the applicant that she wanted to travel to Germany to study in October 2010. On 17 July 2010 CD received a Facebook friend request from a person named Adam Wolfgang. She did not know him, but because of his name and her interest in travelling to Germany, she accepted his friend request. Adam Wolfgang was in fact the applicant.

50. [92]

    Shortly afterwards, CD and the applicant started to communicate via Skype messenger. The applicant then began to communicate in a sexualised manner. CD told her friend EF about these messages. EF told the applicant. The applicant then contacted CD, in his own persona, and said that he had a friend who might be able to help her. He asked CD to alert him when she was next on Skype with the person Adam Wolfgang, and the applicant said he would then arrange for this friend to find out the identity of Adam Wolfgang.

51. [93]

    One night in late July 2010, CD let the applicant know that she was on Skype with Adam Wolfgang. The applicant posing as Adam Wolfgang, told CD to turn on the camera in her computer. CD told the applicant about that request. He instructed her to comply so as to make it easier for his friend to identify Mr Wolfgang. Adam Wolfgang then asked CD to expose her breasts. He said that he knew she would do so, because he knew that her boyfriend had a photograph of her on his phone which was sexual in nature.

52. [94]

    Although CD and her boyfriend had begun to suspect that Adam Wolfgang was in fact the applicant, her friend EF said that she did not believe this, and she told her to do what Adam Wolfgang was instructing her. CD tried to ring the applicant a number of times but he did not answer. She then shut her computer down. When this happened, the applicant began to send CD SMS messages to the effect that his connection with Adam Wolfgang had been lost. He told her that his friend had a connection with the Hells Angels Outlaw Motorcycle Gang, and had taken a great risk in attempting to help her. He said that she had not shown any respect or gratitude. He told her that the Hells Angels were furious with her and wanted to burn down her house, but that he was protecting her from them.

53. [95]

    At that point, EF started to receive messages from Adam Wolfgang asking her to try to convince CD to go back online or he would release the photos which he said that he had of her and her boyfriend, and that would prevent her from going overseas.

54. [96]

    CD reported this matter to the police on 15 August 2010. The police contacted the applicant, but he told them that he had no knowledge of the incident. There was no evidence about whether there was any further investigation of the complaint.

55. [97]

    On 12 August 2008, in an attempt to get CD to re-establish contact with Adam Wolfgang, the applicant communicated with EF using another false Facebook identity, Fred Piercson. Fred Piercson threatened that the applicant, who he named as Vaughan, was a dead man and said that that was all CD’s fault for ceasing contact. Fred Piercson threatened that physical harm would come to the applicant and also to EF. He demanded that EF add him as a Facebook friend. He said that he had done some research on her, and threatened to involve her family in some way if she did not do so.

56. [98]

    The sentencing judge described this as complicated and very disturbing behaviour. Her Honour described the nature of these types of offences as escalating. She said an appropriate sentence was 12 months’ imprisonment for each offence.

57. [99]

    The next group of offences involved the victim GH. Four offences were involved. Three of these were sexual intercourse without consent (sequences 55, 67 and 68) and one was using a carriage service to menace (sequence 52).

58. [100]

    GH commenced to live with her father and his partner in Penshurst from June 2006 when she was 14. The family joined the Elouera Surf Life Saving Club, where the applicant was also a member. The applicant communicated with GH’s sister from late 2006 to early 2008. He started to communicate with GH from early 2008 via MSN Messenger and mobile phone. At the time, GH was 16 years old.

59. [101]

    GH had found the applicant to be charming and complimentary. She confided personal information to him, including her family circumstances and her limited access to money.

60. [102]

    During these exchanges on MSN Messenger, the applicant encouraged her, by playing the game of Truth or Dare, to reveal her body to him.

61. [103]

    By early 2008, GH had, at the applicant’s request, exposed her naked body to him. He exposed himself to her including while masturbating, and sent her a picture of his erect penis. The victim believed that the ongoing communication was live transmission and could not be recorded.

62. [104]

    The applicant told her he would give her money if she agreed to do things for him or other people. He suggested he could provide her with a fake ID which she would need to have to work as a sex worker. He said he could provide her with protection including a firearm or pepper spray.

63. [105]

    He later assumed another identity online, Kieran and, as himself, he introduced Kieran to GH as a person who worked on the wharves in Sydney, and who could access stolen or illegal goods, including firearms.

64. [106]

    GH started to communicate with Kieran via Messenger. He told the victim that he knew she only had limited money, and he said he could help her out if she agreed to do things for the applicant. He said that the applicant would accept the things that she was to do for him in repayment of the debt she would owe to Kieran. He told her that he would provide her with money if she agreed to appear topless or naked for the applicant over webcam chat sessions.

65. [107]

    GH felt intimidated by Kieran, and started to avoid appearing online on MSN Messenger to avoid him. She blocked him from her contact list. She then started to receive messages from a new MSN contact who again purported to be Kieran. He made it clear he was angry with her for trying to block him.

66. [108]

    The applicant then started to send GH text messages and to call her. He told her that she was upsetting Kieran.

67. [109]

    Kieran then started to send her messages via MSN Messenger demanding that she come back online. By May 2008, because she was scared of Kieran and concerned about being blackmailed, she again blocked him. On 7 May 2008 she was contacted by a person who called themselves Damien, who made it clear that he was the same person as Kieran. He said that he had a video recording of her, and sent a file via MSN Messenger. GH recognised it as a recording of an earlier webcam session she had had with the applicant, in which she was depicted topless. Damien told GH that he would give the video to her father, sister, members of the lifesaving club and her school friends unless she agreed to do things for the applicant. The applicant, using his real identity, also told GH that Damien would disseminate the video unless she agreed to do as Damien asked. He said that he was now being threatened by Damien.

68. [110]

    As a result of all of these threats (which together constituted sequence 52 of using a carriage service to menace) GH participated in three instances of sexual intercourse with the applicant. Sequence 52 was placed on a Form 1 attached to one of those offences, being sequence 55. This was one of the problematic uses of the Form 1 procedure, to which I will come when dealing with ground 3.

69. [111]

    At some time in 2008 whilst GH was 16, the applicant posing as Kieran sent a message saying that he would give her money if she agreed to perform oral sex on the applicant. GH met the applicant in Penshurst who drove her to a park in South Hurstville. He parked the car and led her along a boardwalk path through a mangrove forest. They reached the landing and he pulled down his pants and underpants and exposed his erect penis. GH was concerned that people might walk past but the applicant insisted that the sex take place at that point.

70. [112]

    GH knelt down and placed her mouth over his penis. He put his hands on either side of her head and pushed her head backwards and forwards. She began to struggle to breathe, and she felt pain in the back of her mouth. She started to cry. After several minutes, the applicant ejaculated into her mouth. GH did not consent to this sexual intercourse. She only participated because of the threats made to her by Kieran to disseminate the images of her. The applicant took her back to the car and drove her home. She did not tell anyone about what had happened. That offence constituted sequence 67.

71. [113]

    Her Honour found that the offence was objectively serious but below the mid-range in terms of objective seriousness. Taking into account the 25% discount for the utilitarian value of the plea of guilty, her Honour said that the starting point for the offence would be four years. In those circumstances she imposed a sentence of three years’ imprisonment with a non-parole period of two years.

72. [114]

    A little later in 2008, while GH was still 16, the applicant, posing as Kieran, told her that he would give her money if she agreed to perform oral sex on the applicant. GH feared that he would send the video she knew that he had of her to her family and friends if she did not agree.

73. [115]

    She met with the applicant at the same park where the previous offence took place. On this occasion she refused to carry out the act in a public place. The applicant told her that Kieran had specified that the act needed to be performed in public. GH continued to refuse to do so. Ultimately the applicant agreed that it could happen in the car. He stayed in the driver's seat with the victim in the front passenger seat. He removed his pants and underpants and exposed his erect penis. GH leant across the centre of the car and placed her mouth on his penis. He took hold of her hair with both hands and began to move her head up and down against his penis. She felt pain because he was pulling her hair. She began to struggle to breathe and felt pain at the back of her throat. She also felt pain in her chest because it was bumping against the gearstick between the seats. After about ten minutes, the applicant ejaculated.

74. [116]

    When the act was over GH asked the applicant about the money that she had been promised. The applicant told her he did not have the money and that he would go to meet Kieran to obtain it for her and give it to her later.

75. [117]

    This offence constituted sequence 68, but it was not charged as a separate substantive charge. Rather, it was placed on a Form 1 in relation to sequence 55, which was the third offence of sexual intercourse without consent concerning GH. Her Honour said that the placing of this offence on a Form 1 did not bear logical scrutiny. I agree with her Honour in that regard. This Court has said on more than one occasion that it is ordinarily inappropriate to charge offences of equal seriousness on a Form 1.

76. [118]

    The offence constituting sequence 55 occurred a few weeks after the earlier two offences, and just before GH’s 17th birthday. The applicant, posing as Kieran, messaged GH, telling her that she had to go with the applicant to his house and have anal sex with him. He said that this was going to be recorded on video by the applicant. The video would then be distributed to Kieran via a friend, as proof that the act as demanded had occurred. He sent a message making a threat that if she did not do so he would distribute the earlier video. He also said, "It's not even that bad, and you can walk away with $500".

77. [119]

    GH met the applicant at 11pm one night in Penshurst. They went to Bardwell Valley Golf Course, and walked around for about half an hour and then got back into his car. The applicant then drove her to his home in Bardwell Valley, arriving at about midnight.

78. [120]

    The applicant led her to a room at the front of the house where there was a computer. He instructed her to bend over, and she did. He began to push his erect penis against her anus, which caused immediate pain. He continued to push his penis against her anus until it entered her anus. She felt pain and began to bleed. He laughed, and said, “At least we can use the blood for lube”. He continued to penetrate her anus for about ten minutes before ejaculating onto her buttocks.

79. [121]

    GH cleaned herself with a cloth and then demanded to see the video recording that she had been told would be made. The applicant said, "Actually, I was so into it, I forgot to film it, so we will have to do it again". He said he would try to talk to Kieran, but that ultimately Kieran would demand proof that the event had occurred. He then drove GH home.

80. [122]

    The sentencing judge said that this was a serious offence of sexual intercourse without consent. Her Honour said the offence was planned and calculated, and its hallmarks were bizarre and manipulative. Her Honour said that GH was obviously vulnerable and naive. Her Honour found that it was about the middle of the range for offences charged under that section. As noted earlier, there were two offences on a Form 1 attached to sequence 55. The first was sequence 68 ([114]-[116] above) and the second was sequence 52 ([106]-[110] above) being the use of a carriage service to menace. That offence was constituted by the use of a carriage service to arrange the sexual offending.

81. [123]

    The next victim was IJ. The offending in relation to her took place in the period from June to August 2010.

82. [124]

    IJ was a vulnerable young woman who had been raised by her grandmother from the age of one. At the time of the offending, IJ was unemployed and had little access to funds. In 2009 she commenced a relationship with a young man who was the younger brother of the victim AB. The applicant was a close friend of her boyfriend's family, and had been in a relationship with EF since 2008. IJ met the applicant and EF during social functions during 2009. In early 2010 she started corresponding with the applicant on social media. She turned 16 in April 2010 and was in year 11.

83. [125]

    On 1 June 2010, just after IJ turned 16, the applicant communicated with her and asked whether she would like to obtain a fake ID. She agreed. He gave her an MSN Messenger username for a person called Simon for this purpose. Simon was in fact the applicant using a fake MSN profile. The applicant continued to communicate with IJ both in his own capacity and posing as Simon. Simon said the fake ID would cost her $250, or it could be free if she showed him her boobs. She refused, saying that she had a boyfriend, and that she was concerned he would screenshot the photo and use it in the future.

84. [126]

    IJ told Simon that she would show him her bra. She removed her singlet and exposed her bra to Simon via the webcam chat feed. Simon said that that was not good enough. She sought further assurance from him that he would not take a screenshot of her. She then removed her singlet top and bra and exposed her breasts to Simon. He immediately replied that he had taken a screenshot of her breasts and saved that shot. He told her that the applicant owed him a debt, and that if she did not do what he asked, he was going to send the picture to her boyfriend, her school friends and her school.

85. [127]

    This offence, sequence 36, was the use of a carriage service to solicit child pornography. It was placed on a Form 1 attached to an offence of sexual intercourse that subsequently took place between IJ and the applicant (sequence 37). This Form 1 also forms a basis for ground 3.

86. [128]

    Simon told IJ that the applicant owed him a lot of favours, and that IJ needed to go for a drive with the applicant to help him clear his debt with Simon. He said she needed to go on a drive with the applicant and engage in oral sex with him. He said that the sex act was to be filmed, and Simon wanted to see it that night. IJ decided to comply with those instructions because she was scared that the images of her breasts would be circulated at her school. She believed that if she complied, the problem would go away.

87. [129]

    At about 11pm that night she left her home and met the applicant in Banksia. He drove her to his home in Bardwell Valley and took her into his room. He picked up a digital camera and began to film her. He spoke to her in a way that suggested he was being controlled by Simon. He started to kiss her and then removed his jeans and underwear. IJ knelt in front of him and performed oral sex on him. He filmed this by holding the digital camera above her head and pointing it down. He ejaculated into her mouth. She then stopped and replaced her clothing. The applicant then drove her back to her home and said he would deliver the video to Simon. Later that night in a further act of manipulation, he sent a text message to IJ saying that he was sickened by what had happened, and that he intended to get revenge on Simon.

88. [130]

    That offence constituted sequence 37. Her Honour found that it was below the middle range for those types of offences. Sequence 36 was placed on a Form 1 in relation to sequence 37. Her Honour considered that the starting point would be four years’ imprisonment but with the discount for the early plea the sentence would be three years’ imprisonment with a non-parole period of two years.

89. [131]

    About two weeks after that offence, the applicant contacted IJ and said he wanted to talk about what had happened with Simon. IJ went to an address in Penshurst with the applicant. He told her that he had done away with Simon. When she asked what that meant, he said that the National Park was a very big place and that he would never be found. IJ believed that the applicant had killed Simon. By this stage he had told her that he was involved in criminal activities with outlaw motorcycle gangs. He said that he trafficked cocaine on behalf of those gangs and their affiliates. He claimed to have access to firearms and knowledge of them. Because the video of IJ having oral sex with the applicant had not surfaced in any way, IJ thought that the applicant had been manipulated by Simon, and that the applicant had a genuine interest in her welfare.

90. [132]

    Not long after that occasion, the applicant asked IJ to go to his house and she agreed. He supplied a bottle of gin, and she started to drink. She told the applicant that what had occurred earlier with him should not have happened. She said she had spoken to her counsellor about it, and that it had been reported to the police. The applicant then asked her that she not do anything further about it, because it would stop him from getting into the police force. She was aware that he wanted to join the New South Wales Police Force, and so she agreed not to pursue the matter.

91. [133]

    The applicant then started to badger her to allow him to perform oral sex on her. She did not want this to happen and said no. He persisted and said that he was not taking her home until she did so.

92. [134]

    He took her to his bedroom and she lay on the bed. He removed her jeans and her underwear. He performed oral sex on her by licking her genital area, and he inserted his finger into her vagina for about 15 minutes. She then got up, got dressed and he drove her home. That offence constituted sequence 39 of sexual intercourse without consent.

93. [135]

    By late June or early July, the applicant began to threaten IJ that if she did not comply with his continued requests for sex, he would tell her boyfriend David and his family what she had been doing. She was very close to David’s family because she had had a difficult relationship with her own family.

94. [136]

    The applicant started to threaten to disseminate sexually explicit images of her that he had unless she agreed to his demands. The phone contact increased in frequency. His phone records demonstrate that he contacted IJ on his phone on no less than 3,900 occasions in late June to early July 2010, mostly by text messages.

95. [137]

    In late June or August 2010 the applicant contacted her by phone late one evening and told her that he was coming to pick her up from home. She said that she did not want to see him. He said that he was on his way and that if she did not go with him he would tell the family of AB. He picked her up and they went to his house. She was crying and she said that she did not want to see him that night. He gave her a bottle of gin, part of which she drank. He then had penile vaginal intercourse with her on the bed in his room for a number of minutes before ejaculating. She did not give voluntary consent to this sexual intercourse. She only participated because of the threats he made to disseminate photos and videos of her to friends, school or the family of AB. He drove her home on the following morning. That offence constituted sequence 41.

96. [138]

    Her Honour found that sequence 39 was below the mid-range and that sequence 41 was somewhat below the mid-range. In relation to sequence 39 her Honour imposed a three year sentence with a two year non-parole period and for sequence 41 she imposed a four year sentence with a three year non-parole period.

97. [139]

    The last charge involving IJ occurred between June and August 2010. IJ had arranged to meet her boyfriend David after school. The applicant contacted her and told her to catch a bus and come to Hurstville. She said she had already made plans to meet David. He said to her, "If you don't fucking get on that bus and get over here right now, I'm going straight over to the family of AB to tell them everything." As a result of that threat she caught the bus to the car park outside Dan Murphy's in Hurstville where she met the applicant.

98. [140]

    The applicant then drove IJ to his home and took her to his bedroom. He told her that he wanted to have sex with her while she was wearing her school uniform. He pulled her stockings and underwear down. He had penile vaginal sex with her and ejaculated. He then drove her to her boyfriend's home. That offence constituted sequence 42. Her Honour found it had much the same objective seriousness as the other offences, and that the appropriate sentence was one of four years with a non-parole period of three years.

99. [141]

    On 16 December 2011, the applicant joined the New South Wales Police Force, initially with the rank of probationary constable. All of the offences that occurred after that date were committed by him when he was a serving New South Wales police officer.

100. [142]

     The next victim was KL. The offences occurred in September 2012 when KL was 16. She worked at a video game store in Marrickville and became friends with another young woman who worked there.

101. [143]

     In 2012 KL told her friend that she wanted to obtain a fake ID. Her friend said that her boyfriend, who she named as Vaughan and who she said was a police officer, would be able to get one for her. She gave KL Vaughan's Facebook username, being Vaughan Bailey, and he and KL became Facebook friends. Vaughan Bailey was in fact the applicant.

102. [144]

     On 10 September 2012 KL and the applicant were communicating via Facebook Messenger. He said that he was a police officer who worked in the city. She told him that she was still at school. He offered to obtain a fake ID for her through a friend, and later provided her with a Skype address, which purported to be the person who could obtain the fake ID for her. The address he gave her was in fact his own. He then used that Skype address to have a conversation with KL in which he solicited her to send a photograph of her breasts in exchange for providing her with a fake ID. She told him she was 16. He said he was 18 although in fact he was 23.

103. [145]

     KL was reluctant to do what he asked, but he said that it would otherwise cost her $250. She sent a picture of herself in her bra, but he said that that was not enough; he wanted to see her naked breasts. She said she was embarrassed and asked him not to tell Vaughan. Eventually she sent a photo of her naked breasts to him without showing her face. That offence, sequence 18, was using a carriage service to solicit child pornography.

104. [146]

     A further offence of using a carriage service to solicit child pornography in relation to KL (sequence 19) was taken into account on a Form 1 for sequence 18. Her Honour found that sequence 18 was below the mid-range, and the circumstances of sequence 19 did not increase what would otherwise be the appropriate penalty. Her Honour found that the starting point for the offence should be two years with a discount of 25% for the early plea. The appropriate sentence was a fixed term of 18 months’ imprisonment.

105. [147]

     On 26 February 2015, whilst he was a serving police officer, the applicant rang the police assistance line to report his Samsung S5 mobile phone was stolen. He said that he had put it with other items on the beach at Bondi. He had gone for a swim, and when he came back it was gone. It was a lie that his phone had been stolen. He alleged that it had been stolen in order to disassociate himself from that phone so that he could use it to commit further offences of using a carriage service to menace and harass women. When the applicant was finally arrested and a search warrant executed at his home, the phone was found in the home. The false reporting of the phone as stolen constituted sequence 1, being the common law offence of misconduct in public office.

106. [148]

     Subsequently on 14 March 2015 he accessed the New South Wales COPS system whilst on duty to access the particulars of a woman. He had no legitimate or lawful excuse to access her particulars. He accessed her information on three further occasions, once to obtain Roads and Traffic Aurhority records, and on two occasions to access particular information about her held exclusively on the COPS platform.

107. [149]

     On 15 October 2015 he subscribed to a mobile phone with Vodafone under the false name of the woman whose details he had unlawfully accessed. It included her address which he had obtained from the COPS system. He did this in order to commit a later offence involving the victims MN and OP. This offence constituted sequence 20 of dealing with identification information to commit an indictable offence, contrary to s 192J of the Crimes Act 1900.

108. [150]

     The applicant used the same information to commit a further offence on 19 February 2016 contrary to s 192J. On that day he subscribed to another phone with Vodafone under the name and address of the same woman whose details had been accessed by him via the COPS system. He was allocated another phone number. He used this second Vodafone service to commit further offences involving MN and QR, and to communicate with OP. This further offence of dealing with identification information constituted sequence 21.

109. [151]

     Her Honour considered that the offences against s 192J were very serious indeed. Her starting point was four years’ imprisonment. With 25% discount for the plea of guilty the sentence was a fixed term of three years in each case. Her Honour considered that they should be served concurrently.

110. [152]

     In relation to the offence of misconduct in public office, her Honour considered that it was a serious example of the offence. She considered that the appropriate sentence was a fixed term of three years’ imprisonment, also to be served concurrently with sequences 1 and 20.

111. [153]

     The next group of offences involve the victim MN. These are sequences 3, 4, 5 and 6, being offences of using a carriage service to menace. The principal offence is sequence 3 and the remaining sequences were placed on a s 16AB form.

112. [154]

     In November 2013 the applicant commenced a relationship with a police officer. MN was the officer's sister. By that time MN had developed an interest in undergoing breast augmentation surgery. She had informed the applicant of that matter. On 10 July 2015 the applicant sent MN an SMS message claiming to have a doctor friend who was interested in developing a cosmetic surgery business. In particular, he wanted to build a website of ‘before’ and ‘after’ shots for cosmetic breast surgery. The applicant claimed to have met the doctor in the military while serving overseas. Both statements were a lie. The doctor did not exist and the applicant had never been in the military. MN indicated that she was interested in the proposal.

113. [155]

     On 13 August 2015, the applicant created an email address for the doctor, and sent an SMS to MN telling her to chat to the doctor on Skype. He created a Skype account in the name of the fake doctor using the fake email address, and gave it to MN. After some urging from the applicant to contact the doctor, MN commenced communicating with the person that she thought was the doctor but was in fact the applicant. She said she was prepared to talk to him about her proposed operation. The applicant posing as the doctor asked her to send photographs of her breasts. She did so but the doctor replied saying that he wanted to see her face in the photographs as well as her breasts. She sent him several such photographs.

114. [156]

     He began to ask her to engage in a video chat with him, but she stopped communicating with him. He sent about 20 messages in the space of two hours expressing frustration that she had stopped responding to him. He then started to threaten her via the carriage service that if she did not send him more naked photos of herself, he would publish what she had already had sent and tarnish her business. He threatened to ruin her career. She then relayed these threats to the applicant by SMS. He tried to calm her by saying that the doctor was not serious, and that he would be able to take care of the situation because he was a police officer. She said she was going to contact the police about the threats. He said that if she went to the police he would be sacked and he could not afford to lose his job. He asked her to let him take care of the situation.

115. [157]

     Later he told MN that she should give the doctor what he wanted, and in three hours they would all be gone. He said he did not want to lose his job or his girlfriend, her sister. The fake doctor continued to threaten MN including demanding that she send photos of herself using sex toys. MN continued to relay these messages to the applicant, who kept begging her not to contact the police. He told her to block the doctor and let him (the applicant) take care of the situation. At a later time he told her that he had resolved the situation by providing the doctor with a contract worth $15,000, and that the photographs she had sent him were gone. He then suggested to her that she should send the photographs to him, so that he could do a reverse Google images trace. She did not send the pictures, and they stopped communicating over SMS. Her Honour considered that this was a very serious instance of the offence.

116. [158]

     The first of the offences being taken into account (sequence 4) involved activating the telephone number that he had subscribed in the name of the person whose identity he had stolen from the COPS system (sequence 20). He then started to send SMS messages to MN using that number, claiming that he knew who she was and that the caller had photos of her cheating on her husband. She tried ringing the number but it diverted to an automated message bank.

117. [159]

     Later that day MN started sending messages to the applicant asking for assistance and advice about what to do for a person making non-violent threats by the phone.

118. [160]

     The applicant led her along in a series of text messages attempting to have her admit that there were some sexually explicit photos of her. She never admitted it. He then ultimately pretended that he had sorted it out by paying off some people who were able to use remote access to mobile devices and cripple them. Her Honour characterised the offence as one of using a phone service to try to blackmail MN in order to obtain sexually explicit images of her.

119. [161]

     In February 2016 MN began to receive messages from a phone number which was one of the numbers subscribed in the name of the person whose identity the applicant had stolen from COPS. He threatened to disseminate sexually explicit photos of MN including on Instagram. He then backed down and said that he was not in Australia. Later that same day, MN started to send SMS messages to the applicant advising him that the same person as before was messaging her, but with a different number.

120. [162]

     The third additional offence occurred on 4 October 2016. MN started to receive text messages from the applicant, who claimed to have been contacted by someone on Snapchat who said that they had proof that MN's sister (the applicant’s girlfriend) was cheating on him. MN told the applicant that she had access to a fake Snapchat account, and gave him the name. The applicant told her the name of the person who he claimed was communicating with him via Snapchat, and MN started communicating with that person, not realising that it was the applicant.

121. [163]

     MN asked the person for information they claimed to have about her sister. At the same time that she was on Snapchat with that person she was also sending text messages to the applicant. The applicant told her that her sister had been unfaithful to him in the past. He refused to provide details. She eventually blocked the Snapchat contact, but when she told the applicant that she had done so, he implored her to unblock him. She did so and the contact sent her a photo of someone's buttocks. He started demanding photos of MN and her sister together. She told the applicant who urged her to comply with this demand. The applicant then told MN that his Snapchat identity had told him that unless MN and her other sister sent a photograph of them together, he would confront her sister. MN repeatedly told him that she was not willing to do so.

122. [164]

     Her Honour regarded the three additional offences as not insignificant examples of that type of offence. Her Honour said that the substantive offence, sequence 3, was very serious and very calculated. The three additional offences had to be taken into account in a meaningful way when the substantive offence was being sentenced. Her Honour considered that the appropriate penalty was a fixed term of two years.

123. [165]

     The next group of offences involved the victim OP. They were sequences 25 and 27. Sequence 27 was sexual intercourse without consent and sequence 25 (placed on a Form 1) was another charge of using a carriage service to menace. This was the third Form 1 relevant to ground 3.

124. [166]

     In late 2012 or early 2013 OP met the applicant via a telephone dating app called Blendr. They conversed on the app for about three weeks and then exchanged mobile phone numbers. The applicant told OP that he was a police officer. On one occasion OP sent, at the applicant’s request, photos of herself naked. She went to his house three times, and on occasions had consensual sexual intercourse with him. On the occasions when she went to his house she found that he was always drunk. He had two dogs who he described to OP as trained attack dogs, and he said that they would attack anyone on his command.

125. [167]

     In late 2014 or early 2015 they began to communicate via Skype. She told him that she wanted to travel to Europe. Whenever she mentioned somewhere in particular that she wanted to go, he would tell her that he knew someone in that location.

126. [168]

     In March 2015 he asked her via Skype to expose her breasts in exchange for $2,000. She agreed and did so, but was never paid any money.

127. [169]

     On 30 September 2015 the applicant told her by SMS that he had been in hospital for a heart murmur and something related to cancer, neither of which was true. This caused OP to feel some sympathy for him and overlook his earlier behaviour which included inviting her over to his place in exchange for money and offering money for sex.

128. [170]

     On the night of 4 November 2015 OP received various text messages from the number the applicant had subscribed using the identity he had stolen through his access to the COPS system. It was the same number that he used in the offences involving MN. The texts were to the effect that the person had a number of naked photos of OP, and unless she paid him $4,000 he would publish them on a named website. OP was distressed by this and told him that she did not have $4,000. In response, she received a message demanding either sexual favours or additional photographs of herself naked. She refused, but arranged to meet the person at midnight at Glenhaven Reserve.

129. [171]

     Whilst there she communicated with this person through a new Skype account she had created and a new Skype account the applicant created pretending to be the other person. The applicant, using that Skype account, asked OP to expose her breasts, but she refused to do so and terminated the call. Whilst this was occurring OP was exchanging text messages with the applicant via his legitimate phone number. The applicant initiated this. OP told him what was happening, and sent him screenshots of the messages she was receiving from the bogus phone account. He offered to help, telling her that he knew people who could find the user of the account. He asked her to perform oral sex on him, because he said that the people he would be recruiting would be breaking the law.

130. [172]

     The following year in September 2016, the applicant started sending SMS messages to OP from his legitimate number. She told him she that she did not want to be in contact with him any longer. He then sent her a message asking, "What would your parents think of the photos?". He then threatened to send the photos to her parents unless she came to his house and performed oral sex on him twice. He told her that if she did so he would delete the photos.

131. [173]

     There was then an exchange of texts in which OP told him that she did not trust him, that he had scared her on the last occasion that they had been together, that she had a boyfriend, and that she did not want anything to do with him. He continued to threaten to disseminate the photos of her, including that he would deliver a disc to her letterbox. He promised that if she came to his house he would delete the photos and videos he had. OP then agreed to attend, and she arrived around midnight.

132. [174]

     She went to his house and followed him into his bedroom. After a short time he sat against the head of the bed with his legs outstretched. He pulled down his pants and underpants and exposed his penis. She performed oral sex on him. He asked her to remove her top but she refused. After a few minutes he ejaculated into her mouth. He then said that she could leave.

133. [175]

     Her Honour held that this was a relatively serious example of sexual intercourse without consent. She said, however, that it was nowhere near the top of the range for offences charged under that section. Taking into account the 25% discount for the early plea, her Honour considered that the appropriate sentence was one of three years with a non-parole period of two years.

134. [176]

     The next offence involved the victim QR. The offence (sequence 23) was a further offence of using a carriage service to menace.

135. [177]

     The applicant first met QR in 2004 when she was a teenager. They exchanged email addresses and commenced a relationship in about 2004, which lasted until about September 2005.

136. [178]

     On 18 February 2016, QR received an SMS from a mobile phone number that she did not recognise. It was one of the phone numbers subscribed by the applicant, using the identity stolen by him from his access to the COPS records, and was the same phone number that had been used to commit one of the offences against MN and OP.

137. [179]

     The applicant, without disclosing his identity, told QR in the text that he knew she was cheating on her boyfriend. He used her name. QR said that she did not appreciate false accusations or harassment. The applicant said that he did not realise that he was harassing her and that he would stop contacting her. He did so.

138. [180]

     Her Honour found that this offence was towards the bottom of the range. She imposed a six month term for the offence.

139. [181]

     The next victim was ST. This offence (sequence 11) was a further charge of using a carriage service to menace.

140. [182]

     At the time of the offence, between July and October 2016, ST was a police officer in Sydney. She met the applicant when they began working together at the same police station. At the time the applicant was in a relationship with MN's sister, who was also a police officer at the same station. ST did not have any personal relationship with the applicant.

141. [183]

     On 30 July 2016 ST started receiving messages on her phone via Snapchat. This person called himself Sam Barnext. He told her that he had photos of her, and wanted to help her get them deleted. She tried to engage him in conversation but he did not respond. About two months later she received a Snapchat message from someone calling themselves Michelle Barnext, who also said she wanted to help her by getting the photos deleted. Subsequently, she received messages on Snapchat from six different identities, all of whom said that they would delete photos they had of her, if she sent them photos of her breasts.

142. [184]

     ST was concerned about this because in fact she had sent naked photos of herself to people in the past. Accordingly, she sent a photo to one of these Snapchat identities of her in a crop-top without her face showing. The person then asked for a photo of her with her face showing. She said that she felt that the person was blackmailing her, and asked what he would do if she did not send the photo. He said he would send the photos and show them to people.

143. [185]

     Because of the threat she sent five photos of herself with her face and breasts exposed. The person then said that he would only delete the photos if she sent him a photo of her having oral sex with someone who was not her partner. He asked her, "Who do you think this is?", and she replied that she thought it was Vaughan (the applicant). He said it was not Vaughan, but that he knew Vaughan. He said Vaughan would be willing to help out so that she could provide a photo of her having oral sex with someone who was not her partner.

144. [186]

     ST then sent the applicant, who she thought was a friend, a Snapchat message saying that someone was blackmailing her, and wanted a photo of her having oral sex with him, the applicant. The applicant first replied that it was not possible because he and ST had partners, but he sent a message subsequently saying, "Let's do it now".

145. [187]

     Her Honour considered that this was a somewhat more serious instance of the particular offence. She considered that the appropriate sentence was imprisonment for 12 months.

146. [188]

     The next victim was WX who was also a police officer. She had met the applicant at her workplace in February 2016. The offence was using a carriage service to menace (sequence 32).

147. [189]

     On 22 October 2016, WX accepted a Snapchat friend request calling themselves K Snizzle, although she did not know who the person was. It was in fact the applicant. He claimed to be a friend of her ex-boyfriend, and said that he had been showing people nude photographs of her. When she asked who he was, and which ex-boyfriend he was talking about, he replied with the initials "ER". At the time WX was dating someone with those initials, and her Facebook profile showed that she was in a relationship with a person with those initials. The applicant, posing as K Snizzle, told her that her ex-boyfriend was using an app where he had nude photographs of her and other girls. WX did not know of photographs of that nature and asked K Snizzle for his true identity. He said that if she sent photos of her he might tell her. He told her that he knew her boyfriend had been going on dates with other girls while they had recently been separated. WX remembered discussing their period of separation with the applicant at one stage.

148. [190]

     The person calling themselves K Snizzle then continued to ask for photographs in return for revealing his true identity. She sent him a photograph of herself with antlers superimposed so that her identity was obscured. He demanded a photo without the obscuring feature. She declined and then blocked him.

149. [191]

     She spoke to the applicant about these messages, not realising that K Snizzle was in fact the applicant. She asked him for his advice because she viewed him as an experienced police officer and someone she could trust. He told her that Snapchat activity could not be traced, and that accounts could be created without phone numbers or email addresses.

150. [192]

     Her Honour considered that this was a relatively serious example of this particular charge. She said that the appropriate penalty was nine months’ imprisonment.

151. [193]

     The next offence involved the victim UV. It was a further charge of using a carriage service to menace (sequence 12).

152. [194]

     UV was also a serving police officer. She met the applicant through her work. She also knew the applicant's partner who was part of her team, and she also knew ST.

153. [195]

     UV and the applicant became close, particularly after they had some involvement in the Lindt Café siege. They commenced a sexual relationship, although the applicant was still in a relationship with his partner, the other police officer. UV thought, however, that the relationship with the other police officer had ended. During this period she sent the applicant a picture of herself in matching underwear.

154. [196]

     In February 2015 she ended their relationship because she had met somebody else and transferred out of the city.

155. [197]

     In November 2016, while talking to the applicant on the phone, she told him that her partner was away at a police training course. In the days that followed, she was contacted by at least four different Snapchat user accounts. Using one of these accounts, the applicant messaged UV saying that her boyfriend needed to stop showing people private pictures of her. He later sent a message saying that UV was “always matching”. She understood that to be a reference to her wearing matching underwear. She then blocked that account.

156. [198]

     Subsequently she began to receive messages from another Snapchat profile who said, "If you block again, I'll send myself the pictures from his phone". He also said, "I added you to tell you about your boyfriend showing his mates pictures of you". Later he said, "Your boyfriend showed me pictures of you, and got his dick sucked and fucked by another girl". This was a use of a carriage service to menace UV by threatening to disseminate photos of her in her underwear.

157. [199]

     Her Honour considered that the offence was serious and imposed a nine month term of imprisonment.

158. [200]

     The next offence (sequence 33) was a further offence of using of a carriage service to menace. It concerned the victim YZ.

159. [201]

     YZ was a probationary constable with the police service. She met the applicant at the police station where he was stationed in June 2016. They lived in the same area and started to drive to work together.

160. [202]

     On 30 November 2016, YZ started to receive messages from someone on Snapchat with the username Mallory. In fact it was the applicant. She also received a request from another person who asked to be added on her contact list. That person was also the applicant in a different assumed identity. She had a conversation with him. He told her that he was a colleague of her partner, and that her partner had showed him photographs of her at work. YZ, who trusted the applicant, sent him a message in his true identity, asking if there was any way of tracking a Snapchat username. He said no and asked why. She told him that someone was claiming to have photos of her, to which he replied, "Well, are there photos?" She eventually blocked the person.

161. [203]

     Her Honour said the applicant used the assumed Snapchat identity to harass YZ in an attempt to obtain sexually explicit photos of her. He did not achieve this, and her Honour found the offence was towards the bottom of the range of offences of this type. She considered that the appropriate sentence was six months’ imprisonment.

162. [204]

     The last of the offences involved the victim AA. It was a further offence of using of a carriage service to menace, and was sequence 31.

163. [205]

     In 2008, AA was studying criminology at university, where she made friends with EF, an earlier victim with whom the applicant was in a relationship at the time. Initially, the applicant was a Facebook friend of AA but that ceased after she finished university.

164. [206]

     Towards the end of 2016, the applicant and AA became connected on Snapchat. The applicant asked her if she was still "interested in getting a boob job". She told him she was. He gave her the same information that he had given some of his other victims, namely that he had a friend who was a plastic surgeon who needed photos for a portfolio. She asked for information about the plastic surgeon but he did not answer any of those questions. Instead, he told her that he could act as a middleman between AA and the surgeon, including handling the photos.

165. [207]

     Over the space of the next month, they continued to communicate. He asked her to send him photos of her breasts. She ignored those messages.

166. [208]

     Shortly afterwards she received a request from someone on Snapchat to be added to her contact list. It was in fact the applicant posing as someone else. She accepted the request. She then received a message to the effect that this person had photos of her which had been sent by her ex-boyfriend. He threatened that if she did not want him to disseminate them she should send him a photo. She asked who the person was, but he replied to the effect that he only wanted to help her out. He said if she sent the photos he would ensure that the photos he already had were not released. She then ignored the demands and the person who had messaged her.

167. [209]

     Her Honour noted that this attempt was again unsuccessful, and said that while the offence was serious, it was towards the bottom of the range. Her Honour thought an appropriate term of imprisonment was six months.

168. [210]

     On 31 May 2017, investigators from the Professional Standards Command of the New South Wales Police Force stopped the applicant whilst he was driving his motor vehicle along New Illawarra Road in Menai. He was placed under arrest and cautioned. A search of the motor vehicle found a Samsung S6 black mobile phone on the front passenger seat. There were a large number of sexually explicit images of women located on that phone, many of which appeared to be screenshots from Snapchat.

169. [211]

     In a black bag on the front seat of the car were three unsecured .233 calibre rounds of ammunition which were fully functional and in working order. That constituted the offence of possessing ammunition and constituted sequence 13, an offence placed on a Form 1 in relation to sequence 15 to which I will come.

170. [212]

     A search warrant was then executed at the applicant’s home in Campbelltown. Whilst there, the officers located a mobile phone, a laptop, electronic storage devices and similar equipment. They found the Samsung phone which he had reported stolen in February 2015 and which he had used to operate the service to which he had subscribed under the stolen identity he had accessed through the COPS system. An examination of the laptop and the mobile phone located a large number of sexually explicit images of women in various stages of undress. These images included images of the victims BB, MN, UV and TS.

171. [213]

     Also located in the premises were nine unsecured .303 calibre rounds of ammunition, all fully functional and in working order. He was not licensed to possess any of the ammunition. They formed the basis for sequence 14 which was possession of ammunition and was also taken into account on the same Form 1 attached to sequence 15.

172. [214]

     Police also located two unsecured Glock brand pistol magazines, each of which had a capacity of 15 rounds of ammunition. They were fully functional and in working order. The possession of these two magazines constituted sequence 15 which was a charge of possessing a prohibited weapon. The second charge of possessing a prohibited weapon for the second Glock pistol magazine constituted sequence 16 and the possession of the 15 rounds of ammunition constituted sequence 17, both of which were also on a Form 1 attached to sequence 15.

173. [215]

     Her Honour regarded the substantive charge of possessing a prohibited weapon to be serious but below the mid-range. Taking into account the four matters on the Form 1, her Honour considered that the appropriate penalty was three years’ imprisonment with a non-parole period of two years.

Subjective features

1. [216]

   The applicant did not give evidence at the sentence proceedings. The sentencing judge noted that his subjective case consisted only of a psychiatric report from Dr Richard Furst, and some documents from the gaol where he had been remanded.

2. [217]

   The psychiatric report indicated a normal upbringing with a positive childhood and supportive parents. The applicant had an early ambition to become a police officer or a fireman because of his desire to help people. He obtained a degree in criminology at the University of New South Wales between the ages of 18 and 21. He worked a cadetship with the Sydney Water Catchment Authority until he was accepted into the police force in December 2011.

3. [218]

   Dr Furst found no indications that the applicant suffered from depression or anxiety in his early 20s. He told Dr Furst that he had been exposed to significant stressors or stressful events in his role as a police officer including attending suicides. He was also present in the early hours of the morning at the Lindt Cafe siege, and was present where a woman was set alight by her boyfriend. The sentencing judge noted that these events occurred from 2012 at the earliest, whereas the offending commenced in 2007, and many of the more serious offences occurred in the period before he joined the police force.

4. [219]

   He told Dr Furst that he began consuming alcohol when he was 15, and started to drink to excess between 2011 and 2012. That continued up until the time of his arrest. By reason of that, he was diagnosed as having alcohol abuse disorder. Dr Furst noted no history of illicit drug use or a gambling disorder. There were no major medical problems and no family history of mental illness.

5. [220]

   Dr Furst was of the opinion that the offending was likely driven by sexual deviance. He claimed to have been a victim of sexual assault when aged between nine and 12 by a male about three years older than him. He had not received any treatment for that. The sentencing judge noted that there was no evidence to verify that matter.

6. [221]

   The sentencing judge accepted Dr Furst's diagnosis that the applicant suffered from Post Traumatic Stress Disorder, probably arising from the traumatic events that he witnessed or was involved in as a police officer. Her Honour said that there was no evidence of any connection between that condition and the commission of the offences, whether those were committed before or after he became a police officer. Her Honour noted that the fact that he was a person who suffered from a psychiatric condition might be relevant to the extent to which he was a less viable vehicle for general deterrence. Her Honour found, however, that his PTSD was not something that altered the appropriate sentence, and was not something that would minimise in any way the extent to which his sentences should reflect general deterrence.

7. [222]

   The applicant was also diagnosed by Dr Furst as suffering from an unspecified paraphilic disorder. Her Honour said that she understood that diagnosis was based on the fact that the applicant committed the offences and what was said to be the degree of sexual deviance involved. Her Honour did think that diagnosis fitted the facts. She said his sexual offending was marked by controlling and manipulative behaviour. There was considerable planning, but there was nothing about the sexual activities to indicate that he was playing out any particular fantasy. Rather, he was tricking, manipulating and blackmailing women into engaging in sexual intercourse with him.

8. [223]

   Her Honour accepted that he had expressed regret for his actions and she said that indicated some contrition and remorse. She thought his prospects of rehabilitation were relatively good.

The sentence structure

1. [224]

   Her Honour then turned to how the sentences were to be structured. She noted that there were ten counts of sexual intercourse without consent involving four victims. Some were more serious than others, and some had serious Form 1 offences attached to them, but others did not.

2. [225]

   In relation to BB, her Honour said there was a total of 21 years’ imprisonment with a total non-parole period of 13 years. For the victim GH there would be a total of nine years with a total non-parole period of six years. For the victim IJ, there would be a total of 14 years with the total non-parole period of ten years. For the victim OP there was a total of three years with a non-parole period of two years.

3. [226]

   Her Honour said that that would be a total 47 years which would be excessive.

4. [227]

   Her Honour imposed aggregate sentences in respect of the sentences concerning BB, GH and IJ. For BB an aggregate sentence of ten years with an aggregate non-parole period of five years was imposed. For IJ an aggregate sentence of seven years with a non-parole period of five years was imposed. For GH an aggregate sentence of six years with a four year non-parole period was imposed. In the case of OP, there was one offence which resulted in a sentence of three years with a two year non-parole period.

5. [228]

   Her Honour imposed an aggregate sentence of five years with a non-parole period of three years for sequences 11, 12, 23, 24, 31, 32, 33, and 34 (all Commonwealth offences). Her Honour said that sequence 15 was a standalone offence which should attract a three year sentence with a non-parole period of two years. Sequence 18 was a standalone offence which should attract a sentence of 18 months.

6. [229]

   Her Honour held that sequence 1 was a standalone offence but it was connected to sequences 20 and 21. The sentence for each should be three years fixed terms but they should be served concurrently.

7. [230]

   The following is a summary of each of the different sentences imposed:

8. [231]

   As noted earlier, the overall effective sentence was imprisonment for 20 years commencing 31 May 2017 and expiring 30 May 2037 with a non-parole period of 15 years expiring 30 May 2032.

Grounds of appeal

1. [232]

   At the outset of her submissions, counsel for the applicant said that she did not press ground 1 in the light of this Court’s decision in Kabir v R [2020] NSWCCA 139.

2. [233]

   In relation to ground 2, counsel in her written submissions noted that under s 16A of the Crimes Act the Court must take into account the matters in sub-s 2(b), (g), (m) and (n). Moreover, under s 16B the Court when sentencing for a Commonwealth offence must have regard to any sentence already imposed on the person by the Court or another court for any other federal offence or any state offence being a sentence that the person has not served.

3. [234]

   Counsel for the applicant submitted that the circumstances of the offending in relation to the sexual acts were occasioned by manipulation of the victims by threats, harassment and communications using the various carriage services. In that way, it was submitted, there was considerable overlap in the offences and they did not warrant the level of accumulation represented in the aggregate sentence. Counsel submitted further that in a similar way the offences in sequences 1, 20 and 21 also facilitated the false identities that enabled the manipulation.

4. [235]

   When her Honour was dealing with sequence 34 involving the victim AB and an offence of using a carriage service to menace, her Honour said this:

5. [236]

   Further, it is clear from her Honour’s reasons that she was conscious of the relationship between the Commonwealth offences and the State offences. Indeed, there were Commonwealth offences of using a carriage service to menace placed on Form 1 documents attached to the relevant State offences of sexual intercourse without consent. That should not have happened, as the discussion in relation to ground 3 will show, but that matter helps to demonstrate that her Honour was well aware of the need to have regard to the interaction of the sentences which would be imposed for other Commonwealth and State matters.

6. [237]

   Her Honour carefully discussed how the sentences and the aggregate sentences were to be partially accumulated. Her Honour was also conscious of not imposing an excessive sentence after she had determined what the sum total of each of the individual sentences which she had indicated.

7. [238]

   There is no requirement for the sentencing judge to identify by paragraph number in s 16A the matters that are clearly taken into account in substance: Kabir at [48].

8. [239]

   In my opinion, ground 2 is not made out.

9. [240]

   The issue raised by this amended ground was identified by the Crown in its submissions when responding to the earlier form of ground 3 (set out at [41] above). Counsel for the applicant adopted the Crown’s submissions. The Crown’s submissions amounted to a concession that the sentencing judge had erred when sentencing for sequences 27, 37 and 55, albeit at the joint request of the parties pursuant to the Form 1 procedure.

10. [241]

    The Crown indicated that it relied on its submissions in another appeal that resulted in this Court’s judgment in Ilic, referred to in Payne JA’s judgment at [2] above. The same issue arose in that case where a Commonwealth offence was placed on a Form 1 attached to a State offence. The Crown conceded that for various reasons that joinder was not permitted.

11. [242]

    Since the hearing of the present appeal this Court determined in Ilic, as Payne JA has noted earlier, that it was not permissible for a Form 1 to include a Commonwealth offence. I agree with Payne JA’s reasons in that regard. The Court further determined that the only appropriate order in the circumstances was for the matter to be remitted to the District Court for the applicant to be resentenced according to law.

12. [243]

    The same error was made in the present case by the inclusion by the Crown of the Commonwealth offences in sequences 25, 36 and 52 on Form 1 documents attached to sequences 27, 37 and 55. The result must be that the applicant has not been sentenced according to law in relation to the offences constituted by those sequences.

13. [244]

    Although it will be necessary for sequences 25, 36 and 52 to be attached to Commonwealth offences at any re-sentencing, it is not likely that the overall sentencing of the applicant will be significantly affected. For that reason, it is appropriate for this Court to consider the remaining grounds of appeal, to minimise the risk of any further appeal once the resentence exercise is complete.

14. [245]

    The applicant submitted that, because the sentencing judge found special circumstances partly on the basis of a partial accumulation of all of the sentences, the overall sentence should have resulted in a moderation of the statutory non-parole period ratio. The applicant submitted that, because other factors were also identified, the statutory ratio should have been modified. The applicant submitted that, in the absence of express reasons for imposing an overall non-parole period that negated or substantially negated a finding of special circumstances, it should be inferred that the sentencing judge overlooked the effect of partial accumulation or at best erroneously allowed it to affect the aggregate sentence.

15. [246]

    In Hutchen v R [2015] NSWCCA 101 the applicant pleaded guilty to three offences. The sentencing judge in that case provided a separate sentence for each of the offences. For each of the offences the ratio between the non-parole period to the whole term was between 60 and 66 percent. However, the combined effect of the sentences produced a ratio of 73.3 percent. It was contended that the result was contrary to the sentencing judge’s express intention of varying the statutory ratio to give the need for a longer period of rehabilitation on parole.

16. [247]

    Justice Hoeben (with whom Adams and McCallum JJ agreed) said:

17. [248]

    The sentencing judge said in her Remarks:

18. [249]

    This principle in Hutchen is relevant here because the challenge is to the ratio of the overall effective sentence in the light of what her Honour there said. However, it is clear that her Honour was mindful of the matter because, having identified all of the aggregate sentences her Honour said this:

19. [250]

    By contrast with what was found in Hutchen, where there was no indication of his Honour’s awareness in that case that the total effective sentence would remain close to the statutory norm (see at [32]), the sentencing judge in the present case expressly referred to the matter and determined that nothing less than a non-parole period of 15 years would be sufficient. That determination is a justification for not reducing the statutory ratio: R v Cramp [2004] NSWCCA 264 at [34].

20. [251]

    In my view, this ground should be rejected.

21. [252]

    The applicant submitted that, considering the intercourse involved was mostly fellatio, there was an absence of physical force or violence, and that most of the offences were found to lie below the mid-range, the notional starting points of the indicative sentences were excessive in all the circumstances.

22. [253]

    The applicant provided a table (which I have adapted to include Form 1 offences) of the relevant indicative sentences to identify what were said to be the excessive starting points as follows:

23. [254]

    The applicant accepted that any leave to appeal is in relation to the aggregate sentences and not the indicative sentences. However, it was submitted that the indicative sentences can reveal error in relation to the aggregate sentences.

24. [255]

    In relation to all of the sequences on the table the starting point is that the maximum penalty for each offence was 14 years’ imprisonment and in relation to all but sequence 15, there was a standard non-parole period of seven years. Only in respect of sequence 62 was there an indicative sentence that equalled or exceeded the standard non-parole period. In every case the indicative non-parole period lay below the standard non-parole period. Sequence 62 had two further counts of sexual intercourse without consent on a Form 1. The offending was determined to be objectively serious.

25. [256]

    The starting points for all of the indicative sentences were entirely consistent with the assessment of objective seriousness, although some might be considered to be lenient. The majority of the sequences in the table had Form 1 documents attached, with one or more additional offences taken into account. In relation to sequences 57, 60, 62 and 65, the Form 1 offences were all further instances of sexual intercourse without consent. Sequences 41 and 42 involved penile vaginal intercourse to ejaculation. Sequence 55 involved anal intercourse to ejaculation. All acts of oral intercourse resulted in the applicant ejaculating into the mouths of the victims. Some of the acts of intercourse involved force being applied to the victims.

26. [257]

    The applicant coerced and deceived the victims, sometimes threatening them, sometimes overbearing their wills and vitiating their consent. In most cases there was planning and repetition of behaviour for the sexual pleasure of the applicant.

27. [258]

    It cannot be said that any of the indicative sentence starting points were not open to her Honour when regard is had to all of these matters. Indeed, counsel for the applicant accepted at the hearing of the appeal that she could not submit that the indicative sentences were not within the sentencing judge’s discretion, nor could she submit that the indicative sentences were outside the appropriate range. Those starting points do not indicate any error in relation to the aggregate sentences imposed for the various groups of offences.

28. [259]

    I would reject this ground.

29. [260]

    The applicant submitted that the overall effective sentence and the partial accumulation of the sentences was disproportionate to the offending and is a crushing sentence that will leave him with a sense of hopelessness and will destroy any expectation of a useful life after release. The applicant submitted that he was young man, and will be ineligible for release until he is aged approximately 43. He submitted that in that way the sentence is unreasonable or plainly unjust.

30. [261]

    The principles relevant to the finding of manifest excess are well known and do not need to be restated. They have recently been set out in a number of cases including Hughes v R [2018] NSWCCA 2 at [86] and Kerr v R [2016] NSWCCA 218 at [113]-[114].

31. [262]

    The offending took place over a period of almost ten years. There were 14 different victims. From December 2011 the applicant was a serving police officer. The planning for many of the offences was extensive. The applicant deceived his victims and overbore their wills. His behaviour was coercive and predatory. It was all done for his sexual pleasure. Blackmail was involved in most of the offences.

32. [263]

    The maximum penalties for the offences and the standard non-parole periods were required to be considered. The total of the indicative sentences was almost 70 years’ imprisonment. It is apparent from the way her Honour structured the sentences that there was a very substantial degree of concurrence of the individual sentences and the indicative sentences.

33. [264]

    Her Honour specifically adverted to the applicant’s relatively young age, and to the need to avoid a crushing sentence. She said:

34. [265]

    Her Honour also considered at length the fact that the applicant’s time in custody would likely be spent on some form of limited association or protection, and she considered that would be more onerous for him.

35. [266]

    Nothing in the applicant’s subjective features excused or even explained his offending in an exculpatory way, or in any way which modified or reduced his moral culpability. Her Honour accurately summarised the position concerning his offending in her Remarks when she said:

36. [267]

    When regard is had to all of these matters, it cannot be said that the overall effective sentence, or any of the sentences, individual or aggregate, are plainly unjust or unreasonable.

37. [268]

    I would reject this ground.

Conclusion

1. [269]

   Strictly speaking, error has only been demonstrated in relation to the sentences for sequences 27, 37 and 55, being the sequences which had Commonwealth offences taken into account on a Form 1 document. However, it will be necessary for the Crown to consider how those Form 1 offences, being sequences 25, 36 and 52 should now be dealt with. They will need to be attached to one of the sequences where a Commonwealth offence was the principal offence. That in turn will impact on the sentence or sentences in respect of those sequences. In the circumstances, the better course is to allow the appeal and to quash all the sentences generally to give the sentencing judge the maximum flexibility in the resentencing exercise.

2. [270]

   Although the sentences in relation to sequences 1, 20 and 21 have expired, it is appropriate that the judge who re-sentences the applicant has maximum flexibility to do so. It is also appropriate that the sentences for all the offences should be imposed at the one time.

3. [271]

   It would obviously be desirable for the matter to be remitted to Judge Tupman, who was entirely conversant with the detail of the material. However, it will be for the District Court to determine arrangements for the re-sentencing exercise.

4. [272]

   Accordingly, I propose the following orders:

5. [273]

   GARLING J: I agree with the orders proposed by Davies J and with his reasons for those orders. The following remarks are in addition to the reasons of Davies J.

6. [274]

   This application for leave to appeal, seeks an order that this Court quashes the sentences imposed on the applicant by Tupman DCJ, and then to remit the matter to the District Court so that the applicant can be sentenced again.

7. [275]

   In the complex and most difficult sentencing judgment with which Tupman DCJ was confronted, as the judgment of Davies J clearly shows, the applicant has no, and could not have any, grounds for any successful complaint about the sentences which were actually imposed. That is except for the error of law dealing with whether three Commonwealth offences could be taken into account by the sentencing Judge using the NSW Form 1 procedure when imposing sentences for NSW offences.

8. [276]

   Two of the three Commonwealth offences taken into account were for conduct contrary to s 474.17(1) of the Criminal Code 1995 (Cth) namely, using a carriage service to menace harass or offend. These offences carry a maximum penalty of three years imprisonment. The third offence was for conduct contrary to s 474.19(1) of the Criminal Code namely, using a carriage service to solicit child pornography which carries a maximum penalty of 15 years.

9. [277]

   The principal offences to which these three offences were (wrongly) attached were for conduct contrary to s 61I of the Crimes Act 1900 (NSW). That offence carries a maximum term of 14 years imprisonment with a standard non-parole period of 7 years.

10. [278]

    On the basis of the agreed facts which were tendered to the sentencing judge, the three Commonwealth offences were of much less seriousness than the principal offences to which they were attached.

11. [279]

    Having regard to the complexity of the sentences which were imposed, the way in which the sentencing judge aggregated some but not all of the sentences, and the way in which Her Honour assessed concurrency and, in particular, the totality of the applicant's criminality, I very much doubt whether the overall effective sentence which the applicant is obliged to serve - 20 years with a non-parole period of 15 years, will be in any way altered when he comes to be re-sentenced. The result of this is that the practical utility of this appeal is entirely elusive.

12. [280]

    In those circumstances, it is, to say the least, most regrettable that this Court is required now to quash three of the ten separate sentences which were imposed because the applicant asked the sentencing Judge, no doubt on the advice of his counsel, and with the active agreement of the prosecution, to take into account three Commonwealth offences of significantly less criminality than the principal offences to which they were attached. Particularly is this so when two of the ten sentences which were imposed by the sentencing judge were for other Commonwealth offences to which these three offences could have been attached by following the procedure fixed under s16BA of the Crimes Act (Cth).

13. [281]

    I accept that there is no course open for this Court but to make the orders proposed by Davies J. I also agree with Davies J when he notes the desirability of the re-sentence being undertaken by Tupman DCJ.