Hall v R

1. [1]

   LEEMING JA: I agree with R A Hulme J.

2. [2]

   R A HULME J: Mr Adam Hall seeks leave to appeal against a sentence imposed on 23 April 2020 by her Honour Judge Bright in the District Court at Gosford.

3. [3]

   The sentence was in respect of nine offences involving aggravated detain with intent to obtain advantage, aggravated sexual intercourse without consent and sexual intercourse without consent. The offences were contrary to ss 86(2)(b), 61J(1) and 61I of the Crimes Act 1900 (NSW) respectively.

4. [4]

   Mr Hall also asked the judge to take into account his guilt in respect of a further seven offences of sexual intercourse without consent (s 61I) that were listed on a Form 1 document.

5. [5]

   The judge imposed an aggregate sentence of imprisonment for 22 years with a non-parole period of 16 years and 6 months commencing on 12 February 2019.

6. [6]

   The following table shows the offence details, including the maximum penalty and standard non-parole period, together with the indicative sentence assessed by her Honour for each after allowing a reduction of 25% for Mr Hall’s early plea of guilty.

7. [7]

   Mr Hall (hereafter “the applicant”) applied for leave to appeal on two grounds:

8. [8]

   There should be a grant of leave to appeal but the appeal should be dismissed for the reasons below.

The offences

1. [9]

   There was a statement of agreed facts which disclosed the following.

2. [10]

   The applicant and the victim had been in an intimate relationship for just over a year and there had been no prior violent incidents between them. The offences were committed in a period of about 12½ hours from 4.00pm on Sunday 10 February 2019 during which the victim was detained. They occurred in a house at Macmasters Beach on the Central Coast where they were “house sitting” at the time.

3. [11]

   During the Sunday afternoon they watched a movie together, after which the victim said she felt tired and wanted to retire to a bedroom and read a book. The applicant told her to sit with him and that they would later prepare the evening meal together. An argument ensued. The victim went downstairs to a bedroom, but the applicant followed a short time later. He grabbed her and twisted her arms up behind her back, tied her hands together with a piece of rope, verbally abused her, and punched and slapped her to the face multiple times.

4. [12]

   An audio recording was later retrieved from the victim’s mobile phone and it contained the following. It demonstrates an attitude of power, dominance, belittlement and callousness the applicant then held for the victim.

5. [13]

   The applicant then took the victim upstairs in the house. He obtained a knife from the kitchen and then pushed her back down the stairs. He hit her in the face when she tried to get up at the bottom of the stairs. He took her into a room referred to as a “study”.

6. [14]

   The applicant used the knife to inflict a cut to the victim’s right upper thigh which extended down to the muscle. He told her that if she did everything that she was supposed to he would leave her tied up there and would not kill her. He then forced her to suck his penis in a way that caused her to gag. This lasted for 10-15 minutes. She was dry retching and recalled wetting herself during this assault.

7. [15]

   The applicant then “whacked” the victim across the head and told her she looked “ugly and disgusting”. He took her into the bathroom and made her shower and wash her hair. He said words to the effect of, “look at you, you fucking piece of shit”. He then took her back to the study and again forced her to suck his penis. He told her she would die if she did not do what he said.

8. [16]

   After some time, the applicant took the victim to the garage where he obtained a pair of pliers and a hammer. He told her that if he felt her teeth on his penis, he would either rip out all her teeth with the pliers or break her toes with the hammer. They returned to the study where she was again forced to suck his penis (seq 9). He digitally penetrated her vagina with such force that it caused her to urinate (seq 23). He told her to defecate and then penetrated her anus with his penis (seq 24). He then removed his penis and put it inside her mouth (seq 12).

9. [17]

   The victim recalled that this episode lasted around 4-5 hours. During this time the applicant made her put his penis in her mouth and forced her to swallow his urine (seq 13). He did this a number of times throughout this period.

10. [18]

    Sometime after midnight the applicant said he wanted to purchase some cigarettes. He told the victim he would put her in the car, and she was not to speak or do anything. Her hands remained tied behind her back. He took her outside, tied her by the neck, back and feet, otherwise described as being hog-tied by the hands and feet behind her back, [1] and put a ball of material inside her mouth. He put her in the car behind the rear seats. She was naked and he covered her body with a blanket.

11. [19]

    The applicant drove to a convenience store at Kincumber where he bought cigarettes and a lighter. (In his later admissions to police he said he told the victim he would kill her if she got out or tried to attract any attention.) He then drove back to the home and took her inside. She asked him for a drink of water which he gave her. He then made her sit on the floor of the downstairs study and smoke a cigarette. She was not a smoker and did not like cigarettes. When she asked him for an ashtray, he told her to extinguish the cigarette on the floor.

12. [20]

    The applicant again forced the victim to suck his penis. She soiled herself with urine and defecated. He again took her to the shower before returning her to the study. At this point he told her that she was not doing what he wanted. She said something like, “I can’t do anything with my hands tied behind my back”. He agreed to untie her hands but said that if she reached for the knife or tried to get up, “you’re dead”.

13. [21]

    The applicant then forced the victim to suck his penis until it was erect (seq 15), at which time he penetrated her anus with his penis (seq 16). She described the anal penetration as, “so hard I thought I was going to break”. He then removed his penis from her anus and put it inside her mouth (seq 17). This occurred several times.

14. [22]

    The applicant thereafter repeatedly sexually assaulted the victim. This included one act of penetrating her anus with his penis (seq 18), penetrating her vagina with his penis (seq 19), and digital penetration of her vagina (seq 20) and her anus (seq 21). These acts were repeated over a two-and-a-half-hour period.

15. [23]

    The applicant fell asleep at about 4.30am. The victim moved him from on top of her and took the opportunity to get up and leave, grabbing a jumper to put on as she fled. She ran until she saw a light on in a house in a neighbouring street, jumped the fence and approached a house. The first occupier she saw was a 10-year-old girl to whom she said, “please don’t be frightened, I’m not here to hurt you, but can you get mum and dad”. When the parents were woken, the victim told them, “I’ve been raped and beaten for 12 hours”.

16. [24]

    The police were notified and attended promptly. The victim was observed to have bruised eyes, a deep gash in her upper thigh, and dried blood on her face and feet. Her eyes were almost completely closed due to serious swelling. She was shaking and crying.

17. [25]

    The applicant had left by the time officers arrived at the house. They saw in the house items that had been used during the incident as well as blood stains and clumps of hair. There was also a distinct smell of urine.

18. [26]

    The applicant was not found until 12.45am on 12 February 2019 when he made a triple‑0 call from a public payphone at Wamberal. He told the operator, “Yeah it’s not an emergency mate, I’m handing myself in for a crime”. He said he had assaulted his girlfriend “rather viciously” the night before. The operator asked if the victim had needed an ambulance to which he said, “Mate, I don’t know, she probably did. I hit her a bunch, I cut her … she left and went to the next-door neighbours and called the police and I absconded from the scene”. Officers were dispatched to the area of the payphone and found the applicant sitting in the gutter. He was arrested and taken to Gosford Police Station.

19. [27]

    The applicant made what are described as “full and frank admissions to all the alleged offending conduct”. They included that he had twice urinated in the victim’s mouth, telling her to drink it. He had repeatedly punched her to the face because he “was angry, to stop her from talking, to make her compliant”. He also said that during the sexual assaults, the victim defecated while he had his fingers inside her anus. He wanted her to perform oral sex on him without a clean anus and while his penis was dirty. He said the reason for this was “humiliation”.

20. [28]

    The applicant told police that when he woke up and discovered the victim had escaped, he got dressed and left on his motorbike. He saw police so he panicked and threw his phone in some bushes before hiding his bike behind a shop. He bought cigarettes and disposable razors and intended to kill himself “because I can’t live with what I’ve done to her … I love the woman”. He told police he walked into some nearby bushland and sat in a clearing most of the day drinking whiskey and smoking cigarettes.

21. [29]

    Police located the applicant’s discarded mobile phone which contained two video files of interest. One showed the victim performing oral intercourse during which he said, “suck my dick you worthless fucking cunt”. Another depicted her performing oral intercourse upon him during which he said, “you’re boring me, suck it” and, “you’ve got 20 seconds to make me hard or I’m gunna shove the wine bottle up your arse”. In both recordings the victim was naked; she had visible injuries to her face and legs; and her hands were tied behind her back.

22. [30]

    The victim was examined at Gosford Hospital Emergency Department where the following injuries were recorded:

23. [31]

    An examination of her genitalia noted that it was red and painful, and faecal matter was present. An examination of her anal area noted the presence of dried blood and bleeding from a haemorrhoid.

24. [32]

    The judge imposed a two-year community correction order for an offence of damaging property contrary to s 195(1)(a) of the Crimes Act 1900 (NSW). This matter came to the District Court as a related offence on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The damage comprised holes in the walls of the hallway, a broken toilet door handle, and various blood and other stains on carpets, rugs and furniture. [2] The practical utility of pursuing this charge is not apparent. Nothing in the appeal turns on it.

Personal circumstances and background of the applicant

1. [33]

   The applicant did not give evidence at the sentence hearing. His case comprised the tender of a report by Ms Anita Duffy, psychologist, and a testimonial by a friend. The following is largely drawn from her Honour’s careful review of the evidence which was not the subject of any dispute.

2. [34]

   The applicant was aged 49 as at February 2019. The history he provided to Ms Duffy included that his mother was a sex worker and he did not know the identity of his father. When he was four years old his mother formed a relationship with his stepfather who was violent towards him. Both his mother and stepfather were alcoholics. Their relationship ended after about five years.

3. [35]

   When the applicant was about 14 years of age he went to live with his stepfather and his new partner, Shirley. He reported severe physical and emotional abuse, as well as a sexual fascination with Shirley, during this time. As a result of the severity of the physical violence he ran away from home at the age of 16 and lived in refuges or on the streets. He began getting into trouble whilst still a juvenile and spent time in Mt Penang Juvenile Justice Centre.

4. [36]

   The applicant had a number of appearances in the Children’s Court and his offending continued as an adult from 1988 to 1998. It included an offence of assault in 1989 and robbery with striking and wounding in 1992. In Queensland there was an offence in 1998 of producing dangerous drugs. Her Honour regarded the record as disentitling the applicant to any leniency that would otherwise be available to a person of good character.

5. [37]

   At the time of sentencing, the applicant’s mother lived in Queensland and had early onset dementia. However he remained close to her and they were in regular phone contact.

6. [38]

   The applicant reported that he had previously been married and had three children now aged in their twenties. He remained in contact with two of them.

7. [39]

   He told Ms Duffy he became involved with the victim via an online dating service in 2018. He said he fell in love with her after a few months of dating. She was a professional house sitter and they lived together in various houses.

8. [40]

   Her Honour noted that the applicant had a limited education, leaving school in Year 9. His subsequent employment history was generally in low-skilled positions. He was employed as a salesman of solar panels at the time of his arrest in 2019.

9. [41]

   He had been taking medication for a heart condition, hypertension and inadequate blood flow since being in custody. He reported he had sleep apnoea and suffered gastro-oesophageal reflux. There was no suggestion these conditions were not being adequately treated. Ms Duffy’s report also included that the applicant recalled hearing voices. This was controlled with medication which he continued to receive in custody.

10. [42]

    The applicant reported a longstanding issue with alcohol going back to his early teens. He described himself as an alcoholic and acknowledged that drinking had affected his health. He reported using cannabis regularly from the age of 16 as well as amphetamines during his teenage years.

11. [43]

    Her Honour said that she gave limited weight to what the applicant told Ms Duffy about the circumstances of the offending because it was an account not given on oath. It included that he felt horrified by what he did, and he wanted to see the victim get the justice she deserved by his sentence. He also said he wanted to find out why he hurt her and indicated a readiness to undertake rehabilitation and sex offender programs.

12. [44]

    It was Ms Duffy’s opinion that the applicant displayed symptoms consistent with a Major Depressive Disorder as well as Substance Use Disorder, the latter being in remission due to him being in custody. It was her opinion that his symptoms of major depressive disorder meant that he may be at increased risk of self-harm whilst in custody. Ms Duffy also considered the applicant had borderline characteristics where he had poor control over behaviour and emotions, especially when disinhibited by alcohol.

13. [45]

    Ms Duffy was of the opinion that the applicant’s dysfunctional childhood “may have further disrupted psychological development and fostered aggression and controlling behaviour as a maladaptive response to conflict”. She was also of the opinion that excessive violence during the commission of the offences was exacerbated by alcohol consumption. The learned judge noted however that self-induced intoxication cannot be taken into account as a matter of mitigation in accordance with s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

14. [46]

    Finally, Ms Duffy assessed the applicant as being in the average range for risk of reoffending.

15. [47]

    The applicant’s pleas of guilty were entered in the Local Court and adhered to upon committal to the District Court. There was a 25% reduction of sentence for their utilitarian value.

16. [48]

    Her Honour was satisfied there was a nexus between the applicant’s childhood deprivation and the offending that warranted a reduction in his moral culpability in accordance with the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

17. [49]

    She accepted a submission that the applicant’s time in custody would be more onerous as a consequence of the diagnosis of Major Depressive Disorder. She said she would moderate the otherwise appropriate sentences as a result, referring to the summary of relevant principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194 at [177].

18. [50]

    The applicant was found to be remorseful for his offending. His prospects of rehabilitation were assessed as “guarded”, although her Honour said it was encouraging that he had expressed a willingness to undertake rehabilitation programs and he had the support of people in the community. She was unable to find that he was unlikely to reoffend.

19. [51]

    A submission that there were special circumstances was rejected on the basis that the usual ratio pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act would give rise to a very lengthy parole period in any event.

Ground 1: failure to apply the principles of totality

1. [52]

   This ground of appeal concerns various features and attributes of the principle of totality and whether the sentencing judge was in error in not referring to and applying them all. It will be useful then to commence with what has been said in appellate cases about the principle.

2. [53]

   Attorney-General v Tichy (1982) 30 SASR 84 was a Crown appeal against concurrent sentences imposed upon a man for armed robbery and for shooting with intent to cause grievous bodily harm. The shooting was directed at a police officer as the man attempted to flee after committing the armed robbery. After stating that it was impracticable and undesirable to lay down comprehensive principles as to when sentences should be ordered to be served concurrently or consecutively, Wells J explained the rationale for a principle of totality at (92-3):

3. [54]

   Street CJ described the principle in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 as follows:

4. [55]

   The High Court described the principle in Mill v The Queen (1988) 166 CLR 59 at 62-3 as follows:

5. [56]

   McHugh J in Postiglione v The Queen (1997) 189 CLR 295 at 308 referred to a statement of King CJ in R v Rossi (1988) 142 LSJS 451 at 453:

6. [57]

   In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45], McHugh, Hayne and Callinan JJ, citing Mill v The Queen, made the following, often quoted, observation:

7. [58]

   In Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [21]-[22], Gummow, Callinan and Heydon JJ referred to McHugh J’s reference to the statement of King CJ in R v Rossi and added:

8. [59]

   The reference to a sentence being “crushing” is pertinent to part of the applicant’s argument before this Court. So too is the following characterisation by their Honours (at [26]) of what was said in Mill v The Queen to be the preferred of two alternative approaches:

9. [60]

   The last sentence in the quote from Principles of Sentencing in Mill v The Queen at 63 is reflected in the famous passage from Howie J’s judgment in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]:

10. [61]

    This description of the principle by Howie J is consistent with what was said in the earlier High Court authorities, a fact that was subsequently confirmed in both of the joint judgments in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, at [37] (Bell and Keane JJ) and at [64] (Gageler, Nettle and Gordon JJ).

11. [62]

    Other aspects of the principle of totality have arisen in appellate cases. They are collected in the following passage of the judgment of Spigelman CJ, Whealy and Howie JJ in R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15]-[17]:

12. [63]

    The judgment continued (at [18]) by describing another important aspect of the application of the totality principle:

13. [64]

    The written submissions for the applicant included citation of ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [68]-[84] for the proposition that the principle of totality has operation where an aggregate sentence is imposed. So much is uncontroversial.

14. [65]

    The Crown submitted to her Honour on the question of totality that “there should be some significant degree of accumulation between the offences”. [3]

15. [66]

    The applicant’s counsel (who did not appear in this Court) conceded there would be “a reasonably lengthy full-time custodial sentence”. She submitted there were a number of factors relevant to the overall structure of the sentence, the first of which was “totality” and the need to bear in mind that the sentence “is not one that would be crushing”. [4] In oral submissions she contended for a significant degree of concurrence notwithstanding the number of offences, each of which were constituted by separate acts of violence and degradation. [5]

16. [67]

    In her sentencing remarks the judge said:

17. [68]

    The details of the indicative sentences and the aggregate have been set out in detail above (at [6]). It may be seen that the indicative terms amounted to almost 52 years, whereas the aggregate sentence was 22 years.

18. [69]

    The applicant accepted that the sentencing judge correctly had regard to the description of the totality principle in Cahyadi v R. However, counsel submitted: [6]

19. [70]

    Reference has already been made to Clinch v R and Mill v R. In relation to point (c), a footnote in the applicant’s submissions cited Chaouk v R [2017] NSWCCA 295 at [62] where Fullerton J expressed a conclusion that an aggregate sentence was manifestly excessive, in part by criticism of a sentencing judge for making “no assessment of the total criminality reflected in the overall offending” (the basis for such a requirement not being stated) and by also saying:

20. [71]

    There are other aspects to the argument in support of this ground, but they need not be addressed in any detail. [7] They involved an analysis of various cases in which issues concerning “notional” accumulation and concurrency of indicative sentences in aggregate sentence cases have been discussed. They start with an assertion of there having been a divergence of views of members of this Court which progresses to cases which clarify that there has in fact been no such divergence: Vaughan v R [2020] NSWCCA 3; Kleindienst v R [2020] NSWCCA 98; Aryal v R [2021] NSWCCA 2; and Noonan v R [2021] NSWCCA 35. The significant point in response to this is that all of the cases discussing aggregate sentences remain faithful to the principles collected in JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39]-[40], particularly as to the centrality of the totality principle as described in Cahyadi v R, both in determination of an aggregate sentence at first instance and in appellate consideration when erroneous inadequacy or excessiveness is contended.

21. [72]

    A further argument advanced in the written submissions was that “the aggregate … sentence of 22 years reflects more than double the combined … sentences of the indicative terms for Sequences 6 (aggravated kidnapping) and 7 (aggravated sexual assault) which could be described as the worst of the offences”. It was contended that the detention offence was serious and largely encompassed the subsequent sexual assault offences. This point was further emphasised at the hearing of the application. [8]

22. [73]

    Further, it was submitted that “although there were periods in which a distinction could be drawn in terms of the mechanics of the sexual assaults and their duration, they constituted the same course of conduct or a single fractured episode”. [9]

23. [74]

    Finally, it was submitted there was error in the judge “emphasising the lengthy nature of the Applicant’s ongoing course of conduct”. Further, that she made limited findings which “lacked the degree of specificity required”, there supposedly being an inherent degree of ambiguity [10] in the judge’s reference to “partial accumulation”. [11]

24. [75]

    The last submission may be rejected immediately. The judge referred to a “lengthy episode” but she did not emphasise it: see the extract from the sentencing remarks at [177] quoted above (at [67]). In addition, as a general proposition there is no “degree of specificity” required of a sentencing judge in the application of the totality principle beyond giving an indication that sentences might be concurrent or accumulated, partly or wholly. In some circumstances it might be appropriate to further describe the degree of concurrence or accumulation, such as “substantial” or “slight”, but there is no mandatory requirement in all cases. Usually what the judge intended in terms of the extent of concurrence or accumulation will be evident from the outcome.

25. [76]

    This was what Rothman J was alluding to in JT v R [2012] NSWCCA 133 at [73]:

26. [77]

    The applicant contends that the sentencing judge failed to refer to three aspects of the principle of totality:

27. [78]

    No authority was cited for a proposition that these are essential matters pertaining to the principle of totality that a sentence judge is obliged to make express reference to.

28. [79]

    It is necessary to say something about the expression, “a crushing sentence”. It implies something impermissible but that is not necessarily so. For example, in R v Vaitos (1981) 4 A Crim R 238 at 301, O’Bryan J said:

29. [80]

    Redlich JA referred to this in Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372 at [69] and explained that the subjective effect of a sentence upon the offender must be put into perspective; it is not irrelevant, but it is not of paramount importance. His Honour explained: “The overriding principle is that the sentence ‘should fairly and justly reflect the total criminality of the offender’s conduct’”.

30. [81]

    In Stanton v R [2017] NSWCCA 250 at [153], Johnson J said that “the extreme length of a sentence does not necessarily allow it to be characterised as crushing and that a ‘richly deserved sentence’, which is not manifestly excessive, is not to be disturbed because the offender may feel crushed by it”.

31. [82]

    The applicant’s contention that there were aspects of the totality principle to which the judge erroneously failed to advert is not novel. Various formulations of it have been raised in the past, but on each occasion have been rejected.

32. [83]

    In Asplund v R (Cth) [2014] NSWCCA 237, a new sentence was partially accumulated upon one the applicant was already serving for other offences. A ground of appeal was that the sentencing judge had failed to consider “the second limb of the principle of totality”. The contention was that the totality principle had two limbs; a requirement that the total effective sentence bear a proper relationship to the overall criminality involved in the offences, and that the total effective sentence not constitute a “crushing sentence” so as to “destroy any reasonable expectation of useful life after release from custody”. A submission that the sentencing judge erred by not considering whether the sentence would be “crushing” was rejected by Hoeben CJ at CL (at [63]) (Hidden and Davies JJ agreeing):

33. [84]

    The same argument was advanced soon after in GJ v R [2014] NSWCCA 292 but it was given relatively short shrift. Price J observed that in imposing a total effective sentence of 9 years with a non-parole period of 6 years for six offences, the judge had staggered the commencement dates of the individual sentences over a two-year period. In refusing leave to appeal out of time his Honour (Simpson and McCallum JJ agreeing) concluded (at [25]):

34. [85]

    A more elaborate argument, closely resembling that in the present case, was advanced (ironically) in one of the cases to which the applicant’s counsel referred: ZA v R. There the sentencing judge had referred indirectly [12] to the principle stated in Cahyadi v R. The applicant contended that the sentencing judge had failed to impose an aggregate sentence in accordance with a “two staged” approach to the principle of totality. He contended “the first limb” was to ensure the cumulative sentence did not exceed the overall culpability of the offender; the focus here being on the objective gravity of the offences. He submitted the judge had failed to give any consideration to “the second limb” which was said to be focussed on subjective considerations whereby: [13]

35. [86]

    It was further contended that the judge should have made express reference in applying “the second limb” to a range of subjective considerations which included: [14]

36. [87]

    The rejection of these contentions is explained in detail in ZA v R in the judgment of Johnson and Fullerton JJ (at [70]-[84]). Payne JA agreed and made some additional remarks (at [2]-[12]).

37. [88]

    The critical feature of the principle of totality is that which consistently appears in all of the authoritative discussions of it: the need for the overall sentence to reflect the totality of criminality. This Court in R v MAK; R v MSK (in the emphasised sentence in the passage extracted above (at [62])) described the first and third of the matters the sentencing judge in the present case supposedly erred by not mentioning as being “at least two reasons” for there being a “need to maintain an appropriate relationship between the totality of the criminality involved … and the totality of the sentences to be imposed”.

38. [89]

    If a judge is mindful of that critical feature when applying the principle of totality, he or she will be engaging in an exercise that avoids the imposition of a sentence that is excessive, or erroneously crushing, or even “looks wrong”. Whether the judge is successful in that respect is a matter for appellate review. Avoidance of error is not assured simply because a judge has expressly stated that he or she is aware of the need to avoid error that may be characterised in a certain way.

39. [90]

    Expecting a sentencing judge to say more than was said in the present case is inutile. There have been observations to this effect before, such as by Lonergan J in Osman v R [2020] NSWCCA 78 that “totality is clearly a matter to be demonstrated by the way in which the sentencing judge goes about his or her task, rather than an arid recitation of principle …” She also said: [15]

40. [91]

    In the present case, it is clear that the sentencing judge was cognisant of the need to apply the totality principle. She referred to the crux of it and there is no doubt she sought to apply it. That is all that was required. Her Honour was explaining why she was imposing a particular sentence, not writing an essay on an aspect of sentencing jurisprudence. Whether the sentence is erroneously excessive is a matter that falls for consideration under Ground 2.

41. [92]

    Ground 1 must be rejected.

Ground 2 – manifest excess

1. [93]

   The principles to be applied in determining a ground asserting manifest excess (or inadequacy) of sentences are well-known. They were collected in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (citations omitted):

2. [94]

   Specifically in relation to appellate consideration of an aggregate sentence, the principal focus is whether the sentence reflects the total criminality: Kerr v R [2016] NSWCCA 218 at [114] (Bathurst CJ).

3. [95]

   There were two components of the applicant’s contention that the aggregate sentence is manifestly excessive: misapplication of the principle of totality and a comparison with other cases.

4. [96]

   It needs to be borne in mind that an appeal to this Court lies in relation to the aggregate sentence, not in relation to any or all of the indicative sentences that are nominated but not in fact imposed. True it is that regard may be had to the indicative sentences as a guide to whether the aggregate may or may not be erroneously excessive (or inadequate) but the principal focus of determination of a ground alleging manifest excess (or inadequacy) is whether the aggregate sentence reflects the totality of the criminality involved: JM v R at 40.

5. [97]

   As to the offences being committed within an ongoing course of conduct, it is well-settled that this does not necessarily require concurrency of sentences of any, or a particular, degree: R v Jarrold [2010] NSWCCA 69 at [56]. Howie J there reiterated that:

6. [98]

   In the context of submissions under Ground 1, counsel for the applicant was critical of the sentence as reflecting “substantial” and not “partial” accumulation, the latter being the judge’s stated intention. However, as the Crown correctly pointed out, [16] the reference by her Honour to “partial accumulation” was an implicit indication of “partial concurrency”. It simply indicates that the sentences are not entirely one or the other. The fact that the indicative sentences totalled almost 52 years whereas the aggregate sentence was 22 years reflects this. The Crown submitted this can hardly be described as a “substantial” degree of accumulation and I agree.

7. [99]

   A further factor pointed out by the Crown [17] in supporting the correct exercise of sentencing discretion were the clear terms in which the judge indicated that she was required to consider each charge separately before considering questions of accumulation and concurrency and was careful not to double count any feature to the applicant’s disadvantage. In relation to the latter, there was much discussion at the sentencing hearing, initiated by the judge, as to the common features in relation to particular offences.

8. [100]

   Before turning to her Honour’s assessment of the seriousness of the offences it is worth noting her overall description of the case after she had reviewed the facts of the offences: [18]

9. [101]

   In her assessment of the objective seriousness of the offence of aggravated detain for advantage, her Honour took into account the following features: [19]

10. [102]

    Counsel for the applicant submitted that “the detention offence was serious and largely encompassed the subsequent sexual assault offences”. [20] However, it can be seen that her Honour studiously avoided counting anything that constituted an element or was inherent in any other offence for which the applicant stood to be sentenced. Put in terms of the totality principle, there was a substantial amount of criminality remaining to be comprehended outside of that which the judge took into account in relation to the detention offence.

11. [103]

    There was a finding that the aggravated detain offence was “well above the mid-range of objective seriousness”. The starting point of the indicative sentence before discounting for the plea of guilty was 10 years against a maximum penalty of 20 years. It was reduced by 25% to 7 years and 6 months.

12. [104]

    The judge adopted the same careful approach in her assessment of the objective seriousness of the other offences. There is no criticism of her approach to this task at all.

13. [105]

    In relation to the offence of aggravated sexual intercourse without consent (inflict actual bodily harm) the objective seriousness was assessed as being “above the mid-range”. The judge was asked to take into account the applicant’s guilt of seven further offences of sexual intercourse without consent. The maximum penalty is 20 years and there is a standard non-parole period of 10 years against which the starting point for the indicative sentence was 13 years, reduced to 9 years and 9 months.

14. [106]

    The other aggravated sexual intercourse offences (threaten to inflict actual bodily harm with an offensive weapon) were also assessed as being “above the middle of the range”. They were each the subject of starting point indicative sentences of 8 years, reduced to 6 years.

15. [107]

    Finally, each of the five offences of sexual intercourse without consent were found to be “above the middle of the range of objective seriousness”. Against a maximum penalty of 14 years and a standard non-parole period of 7 years there were starting points of 6 years, reduced to 4 years and 6 months, in each case.

16. [108]

    There was no challenge by the applicant to the characterisation of the sentencing judge of each offence being above the middle of the range of objective seriousness. [21] They were offences each with significant prescribed maximum penalties and most had the additional sentencing guidepost of a standard non-parole period.

17. [109]

    A standard non-parole period, like the maximum penalty, is a legislative guidepost in sentencing of which a court must be mindful: Muldrock v The Queen at [27]. It represents the non-parole period for an offence that, taking into account only the objective factors affecting its relative seriousness, is in the middle of the range of seriousness: s 54A(2), Crimes (Sentencing Procedure) Act. It can be seen that in relation to each of the sexual assault offences, the judge proceeded from a starting point before discounting for the pleas of guilty that entailed an implicit non-parole period that was significantly less than the prescribed standard. [22]

18. [110]

    It would have been well open to the judge to impose greater indicative sentences in respect of each offence. However, and as indicated earlier, that is not to the point. As has been described in one way or another in the many authorities on the subject, the question is whether the aggregate sentence is proportionate to the overall objective criminality in the offending. It may be that being punctilious in avoiding double counting of factors relevant to the objective seriousness of the offences led to the assessment of sentences for individual offences which were relatively modest in themselves but that left more scope and need for accumulation in the assessment of the aggregate. (Stephens v R (below at [120]) is an example of the opposite where greater individual sentences yielded to greater concurrency in the assessment of the overall sentence.)

19. [111]

    It was submitted that the following features in the applicant’s case that were the subject of favourable findings by the judge needed to be borne in mind when comparing his sentence with sentences passed in other cases:

20. [112]

    As to the applicant’s criminal record, it should be noted that her Honour regarded it as one that disentitled him to the leniency that might be afforded to a person of good character. It should also be noted that while the applicant’s prospects of rehabilitation were said to have some encouraging signs, they were still assessed by her Honour as “guarded”. Further, she was unable to find he was unlikely to reoffend.

21. [113]

    The written submissions referred to eight cases where there were sentences for aggravated kidnapping ranging from 5 years (after 25% discount) to 11 years (20% discount) which were said to demonstrate that the indicative sentence of 7 years 6 months in the present case was “completely within range”. [23] That does not assist the applicant.

22. [114]

    Reference was then made to a further five cases where there were sentences for aggravated sexual assault, with the circumstance of aggravation being of the types in the present case (infliction of actual bodily harm or threatened infliction of actual bodily harm by means of an offensive weapon). However, as often occurs when attempts are made to compare the sentence imposed in one case with that in another, there usually are differences in facts and circumstances that affects the utility of the exercise.

23. [115]

    The utility of the exercise is also limited in the way Howie J observed in Newell v R [2004] NSWCCA 183 at [43]; even if a range of sentencing could be discerned by reference to other cases it does not mean that the sentence for a particular offence or offender must fall within that range. It merely provides a sounding board against which a particular sentence may be judged. Further, as was noted in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [39], [24] sentences imposed in the past do not fix “the boundaries within which future judges must, or even ought, to sentence”.

24. [116]

    A feature of the present case that does not apply to four out of five of the “comparable cases” is that the offending was in the nature of domestic violence. The sentencing judge was cognisant of this feature. She referred to R v Edigarov (2001) 125 A Crim R 551; [2001] NSWCCA 436 at [41] where Wood CJ at CL noted that the courts have a duty to ensure that brutal, cowardly and inexcusable acts of domestic violence must be adequately punished and that sentences have a strong element of personal and general deterrence.

25. [117]

    The first case (in the order in which they were referred to) concerned a total effective sentence of 18 years imposed for nine offences committed over a six-year period, with multiple offences taken into account. Seven of the offences occurred over a 12-hour period when the victim was detained and subjected to violence and sexual assaults. Counsel for the applicant in the present case submitted that the objective circumstances of Hurst were arguably worse and committed in a context of domestic violence. It was erroneously stated in written submissions that each individual sentence was discounted by 25% for the offender’s pleas of guilty; the judgment (at [6]) indicates the reduction was 10% as the pleas were entered on the day of trial.

26. [118]

    The applicant submitted that there were features of this case that were worse; the offender was over a substantial period of years, there was a history of domestic and sexual violence, and the offences themselves were worse, yet despite these matters the sentence was less than in the present case.

27. [119]

    The difficulty with using this case as a comparator is that when it came to re-exercising the sentencing discretion (because the sentencing judge took into account a wrong maximum penalty for one of the offences), Hoeben CJ at CL (Price and Lonergan JJ agreeing) accepted the Crown submission that the offences were more serious than had been appreciated at first instance (it was “well past the midrange and towards the upper end”) and the appellant’s moral culpability was “very high”. He observed that “the entire sequence of offending demonstrated the very worst aspects of domestic violence and were he to re-sentence he would impose a sentence “significantly greater than that imposed by the sentencing judge”. [25] The appeal was dismissed on the basis that no lesser penalty was warranted in law.

28. [120]

    The next case concerned an 18-year-old man who detained a woman for several hours in her car early one morning after she had left a party. During the period of detention he committed various aggravated (infliction of actual bodily harm) sexual assaults upon her which the sentencing judge considered were within the worst case but which this Court considered to be in the mid-range. Fullerton J did not regard “the error in classification was, of itself, productive of error in the calculation of those individual sentences”. [26] Resentencing was required because of an error in how offences on a Form 1 were taken into account. It was observed that the offender was a young man; he was 18 years of age at the time of the “out of character” offending. The primary judge had concluded he had positive prospects of rehabilitation. An overall sentence of 20 years was replaced with one of 18 years (12 years for aggravated detain for advantage; 14 years for aggravated sexual assault with three sexual assault offences taken into account; 11 years for aggravated sexual assault with sundry less serious offences taken into account; and 8 years for aggravated sexual assault with no offences taken into account). Each sentence had been reduced by 25% for the offender’s pleas of guilty.

29. [121]

    The submission in relation to this case was that the offender did not have some of the applicant’s more favourable subjective features, including his deprived upbringing and his long period of no offending prior February 2019. There was also the applicant’s surrender to police and his extensive admissions.

30. [122]

    However, other distinctions between Stephens v R and the present case include the relatively lower level of objective seriousness of the offences (mid-range compared to above the mid-range); three as opposed to seven offences of sexual intercourse without consent being taken into account; the offender’s youth (aged 18 as compared to the applicant being aged 49); and his positive rehabilitation prospects (with the applicant’s prospects assessed as “guarded”).

31. [123]

    Aside from an unsuccessful appeal against conviction following a jury trial, this case involved sentencing for 19 offences including 12 counts of aggravated sexual assault (two were attempts). The aggravation was threatening to inflict actual bodily harm by means of a knife. The offender followed the victim home, gained entry to her apartment and sexually assaulted her over three to six hours. A total effective sentence of 22 years was imposed and was accumulated upon a pre-existing sentence of slightly more than 2 years. The 10 completed offences of aggravated sexual assault each attracted a sentence of 18 years; the attempts 16 years; and the sentences for the other offences ranged from 6 months to 2 years.

32. [124]

    The primary judge noted the applicant was an Aboriginal man who had not had “the kind of deprived background that was spoken of in the well-known case of R v Fernando” (1992) 76 A Crim R 58. He found the s 61J(1) offences were “well above the mid-range and up towards the high range of objective seriousness”. He considered the applicant had an “appalling criminal record”; there was a “complete absence of remorse” and the offender “represents a very serious danger to the general community”. This was a post-Muldrock [27] case but no error in the judge’s appreciation of the standard non-parole period was found. In support of a contention that the sentences were manifestly excessive the applicant relied upon sentences imposed in other cases about which Macfarlan JA said (in part): [28]

33. [125]

    It was concluded that the sentence overall (and individually) was not manifestly excessive. Intervention by this Court was confined to reducing the non-parole period from 17 years to 16 years because of the accumulation on the pre-existing sentence.

34. [126]

    The applicant submitted the sentence imposed after trial in this case was roughly equivalent to that imposed in the present case after a 25% reduction for the pleas of guilty. The offender in that case was described as a “serious danger to the community” and had a lengthy history of sexual violence, was not remorseful and had little to no prospects of rehabilitation.

35. [127]

    Other points of distinction with the present case include that there was no actual bodily harm inflicted (compared to the deep knife wound the applicant inflicted to the victim’s thigh); and the period of detention was less than half (3-6 hours compared to 12½ hours).

36. [128]

    A total effective sentence was imposed in the District Court of 13 years for offences committed against two young women who the offender met in the street, one being aged 18 and the other aged 16. He detained the 18-year-old woman for 20 hours and committed various other offences including aggravated sexual assault committed and administering a stupefying drug (amphetamine). Several days later he committed various offences including aggravated sexual assault against the 16-year-old girl. The Court accepted that there were errors including manifest inadequacy in the sentences for the more serious of the offences. A new total effective sentence of 18 years with a non-parole period of 15 years was imposed.

37. [129]

    The applicant submitted that this case involved a slightly lesser sentence, even though it was imposed after trial and encompassed offending involving a much higher degree of premeditation and planning than the present offending. There was also the fact that there were two victims.

38. [130]

    A difficulty in using this case as a comparator is that the assessment of sentence for the aggravated sexual assault offences for a standard non-parole period applied was carried out in accordance with R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131, subsequently held to be erroneous by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. A further and more significant difficulty is that the Court’s assessment of resentencing occurred prior to the abolition of the “double jeopardy” principle by s 68A which was inserted in the Crimes (Appeal and Review) Act 2001 (NSW) in 2009 by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW). Thus Grove J (with whom Wood CJ at CL and Hoeben J agreed) referred (at [77]) to the practice of the Court in imposing an increased sentence following a successful Crown appeal being to impose one that is less than would otherwise have been imposed at first instance. For that reason, the sentence imposed by the Court is even less useful as a comparator.

39. [131]

    Attwater was sentenced for manslaughter (indicative sentence of 18 years) and a single count of aggravated sexual assault (12 years) for which there was an aggregate sentence of 19 years. Maris was sentenced for aggravated sexual assault (8 years) and hindering a police investigation (4 years) with the aggregate sentence being 9 years. The facts and circumstances pertaining to this case are too different from the present to warrant attention.

40. [132]

    Use of so-called comparative cases in the way the applicant has sought to use them here has been the subject of criticism on many occasions. For example, in Sabbah v R (Cth) [2020] NSWCCA 89 at [132]-[135], Wilson J (with the agreement of McCallum JA and Cavanagh J) said:

41. [133]

    When revisiting this issue soon afterwards in FL v R [2020] NSWCCA 114, Wilson J found that none of the cases relied upon there were truly comparable or established a range against which the sentence in question could be shown to be erroneously excessive. The same applies in the present case. Her Honour proceeded (at [98]-[99]:

42. [134]

    While these passages include criticisms by Wilson J of inappropriate recourse to sentences imposed in other cases, there is no denying the fact that reliance upon comparative cases can be a useful tool when approached in the correct manner: see, for example, Moodie v R [2020] NSWCCA 160 at [81]-[89] (Bell P).

Conclusion

1. [135]

   The sentence imposed upon the applicant was certainly a stern one, but the offending viewed overall was extremely grave. As the Crown described it in this Court, the “offending had at its core the intentional infliction of fear, pain, physical injury and sexual violence designed to frighten, harm, degrade and humiliate the victim and to exercise control and domination over her”. [29] Bearing in mind the principles set out earlier (including that it is not to the point that this court might have exercised the sentencing discretion differently) I am not persuaded that the sentence was unreasonable or plainly unjust.

Orders

1. [136]

   I propose the following orders:

2. [137]

   CAMPBELL J: I have had the considerable advantage of considering the judgment of R A Hulme J in draft with which I agree. Having said so, I do not understand his Honour's formulation (at [88]) of "the need for the overall sentence to reflect the totality of criminality" to mean anything different from the expression, a "just and appropriate measure of the total criminality involved" employed by McHugh J in Postiglione v The Queen (at 307 - 308). Nor do I regard his Honour's statement as being different from the statement of principle of Redlich JA in Azzopardi v R quoted by R A Hulme J (at [80]). Clearly in sentencing, what is "just and appropriate" or "fair and just" may cover a number of different aspects of the facts, matters and circumstances relevant to the particular sentencing task at hand extending beyond the objective serious of the offending.

3. [138]

   R A Hulme J's scholarly analysis and exposition of the principle of totality as explained in the leading authorities demonstrates that the principle is multifaceted and the effect of its application may vary from case to case as a different facet may have greater relevance in one case than another. I certainly agree that it is not incumbent upon a sentencing judge to refer to every facet, or possible application, of any sentencing principle in the individual case with which he or she is concerned. Only that facet or those facets which appear relevant to the task at hand need be referred to or applied. If some relevant facet of a given principle has been overlooked or misapplied doubtless that can be corrected in the Court of Criminal Appeal.