R v SS (a pseudonym) [2022] NSWCCA 258 (7 December 2022)

Last Updated: 7 December 2022

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	R v SS (a pseudonym)
Medium Neutral Citation:	[2022] NSWCCA 258
Hearing Date(s):	22 November 2022
Date of Orders:	07 December 2022
Decision Date:	7 December 2022
Before:	Price J at [1]; Ierace J at [2]; McNaughton J at [3]
Decision:	(1) Grant leave to file the amended grounds of appeal; (2) Allow the appeal; (3) Quash the sentence imposed on the respondent in the District Court on 1 September 2022 and in lieu thereof, sentence the respondent to a term of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months commencing on 7 December 2018. The date the respondent is first eligible for release to parole is 6 September 2024.
Catchwords:	CRIME – appeals – Crown appeal – whether sentencing judge erred in assessment of objective seriousness, or alternatively, mistaking the facts – whether sentence manifestly inadequate – sexual offences against estranged wife with related assault offences on schedule – two-year-old child present for some offending – no criminal history – need for clear general deterrence and denunciation – appeal allowed – sentence below quashed – sentence increased
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 Crimes Act 1900 (NSW), ss 37, 59, 61I, 61J Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 32, 44 Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited:	Armstrong v R [2017] NSWCCA 323 Aslan v R [2014] NSWCCA 114 Caristo v R [2011] NSWCCA 7 CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 Cumberland v R [2020] HCA 21 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hejazi v R [2009] NSWCCA 282 Hili v R (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hunt v R [2021] NSWCCA 192 Jeffree v R [2017] NSWCCA 72 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Kliendienst v R [2020] NSWCCA 98 Ladas v R [2022] NSWCCA 160 Laspina v R [2016] NSWCCA 181 Maglis v R [2010] NSWCCA 247 McClelland v R [2019] NSWCCA 59 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Palijan v R [2010] NSWCCA 142 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 R v Bortic [2021] NSWCCA 138 R v Hill [2020] NSWCCA 197 R v SS [2022] NSWDC 399 R v West [2011] NSWCCA 91 R v Wright (1997) 93 A Crim R 48 Regina v M A [2004] NSWCCA 92; (2004) 145 A Crim R 434 SC v R [2019] NSWCCA 25 Sharma v R [2022] NSWCCA 190 Wang v R [2021] NSWCCA 282 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Wornes v R [2022] NSWCCA 184
Category:	Principal judgment
Parties:	Director of Public Prosecutions (NSW) (Appellant) SS (Respondent)
Representation:	Counsel: B Hatfield (Appellant) S Kluss (Respondent) Solicitors: Solicitor for Public Prosecutions (Appellant) Ross Hill & Associate Solicitors (Respondent)
File Number(s):	2018/393105
Publication Restriction:	The non-publication and suppression orders previously made in this matter are continued until further order of the Court.
Decision under appeal:
Court or Tribunal:	District Court of NSW
Jurisdiction:	Criminal
Citation:	[2022] NSWDC 399
Date of Decision:	1 September 2022
Before:	Wilson SC DCJ
File Number(s):	2018/393105

JUDGMENT

1. PRICE J: I agree with McNaughton J.
2. IERACE J: I also agree with McNaughton J.
3. MCNAUGHTON J: The Director of Public Prosecutions (NSW) (“the appellant”) has appealed against the sentence1 imposed on SS (“the respondent”)¹ [1]y his Honour Judge Wilson SC (“the sentencing judge”) in the District Court at Gosford on 1 September 2022 following late pleas of guilty. The offences for which the respondent was sentenced took place on 6 December 2018 over a period of about 30 minutes, during which time the respondent brutally attacked and raped his estranged wife (‘the victim”) in the family home. Some of the offending occurred in the presence of their two-year-old daughter (“the child PS”).
4. The respondent was sentenced to a head sentence of 8 years with a non-parole period of 4 years, which was backdated to commence on 7 December 2018.^[2] The matter has some urgency as the non-parole period of 4 years expires on 6 December 2022, and the Court has been informed that the respondent has been approved to be released to parole on 13 December 2022.
5. The appellant applied for leave to rely on amended grounds of appeal on 9 November 2022. The amended grounds of appeal are as follows:

(1) That the sentencing judge erred in his assessment of the objective seriousness of Count 3 by failing to take into account a relevant consideration or, alternatively, mistaking the facts.

(2) That the sentence imposed is manifestly inadequate.

6. For the reasons explained below, I am of the view that leave to file the amended grounds of appeal should be granted, the appeal should be allowed, and the respondent’s sentence should be increased. The orders I propose are at the conclusion of my reasons.

Background

7. The respondent initially pleaded not guilty and was committed for trial which was set to commence on 24 August 2020. The trial did not proceed and on 27 August 2020, the respondent entered pleas of guilty at Gosford District Court to the following two offences:

(1) One count of aggravated sexual intercourse without consent (the aggravating factor being intentionally inflicting actual bodily harm immediately before the offence) contrary to s 61J(1) of the Crimes Act 1900 (NSW) (“Crimes Act”). The maximum penalty for this offence is 20 years imprisonment, with a standard non-parole period of 10 years. This was Count 3 on the original indictment (“Count 3”).

(2) One count of sexual intercourse without consent contrary to s 61I of the Crimes Act. This was Count 4 on the original indictment (“Count 4”). The maximum penalty for this offence is 14 years imprisonment, with a standard non-parole period of 7 years.

8. Two charges were also placed on a schedule pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (often referred to as a “Form 1”), with a view to having them taken into account by the sentencing court in relation to Count 3:

(1) One count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act (carrying a maximum penalty of 5 years) – this was Count 1 on the original indictment (“Count 1”); and

(2) One count of intentionally choking without consent contrary to s 37(1A) of the Crimes Act (carrying a maximum penalty of 5 years) – this was Count 2 on the original indictment (“Count 2”).

9. Further delay occurred after the change in plea as a result of the respondent commencing and then abandoning certain arguments which may have been relevant to sentence. There was also a change of legal representation. The COVID-19 pandemic was an additional disruptive factor from March 2020 (which also brought about additional custodial lockdowns). None of the delay was attributable to the appellant.
10. The respondent received a discount of 5% for his late pleas of guilty.^[3]

Facts

11. The sentencing proceeded on the basis of a statement of facts. The following summary largely reflects the summary of those facts provided by the appellant in written submissions to this Court, which is agreed by the respondent to be correct.
12. The victim and the respondent had been married and together they had the child PS, who was around 2 years and 4 months old at the time of the offence. The victim also had a son of school age from a previous relationship.
13. The relationship between the respondent and the victim was described as “tumultuous”. In June 2018, the victim told the respondent that she wanted to end the relationship, but she subsequently agreed to stay with the respondent for the sake of the children. On 17 November 2018, the victim ended the relationship and moved out of the family home with her son and the child PS. The offences were committed on 6 December 2018 when the victim returned to the former family home to collect the child PS as part of their shared custody agreement and to collect some of her personal belongings and some toys for her son.

First matter on Form 1: Assault occasioning actual bodily harm (Count 1)

14. While the victim was upstairs with the child PS to collect her belongings, the respondent (who had followed the victim and child upstairs) approached the victim in the rumpus room and punched her to the face with a closed fist, causing her to fall to the floor. As the victim laid on the floor, the respondent held her down and punched her to the face a second and third time. The child PS was standing nearby and screaming “Mummy, Mummy... stop, Mummy”.

Second matter on Form 1: Intentionally choke person with intent (Count 2)

15. The respondent straddled the victim and choked her by squeezing her neck with both hands. The victim struggled to breathe and began to scream for help. The respondent took one hand off the victim’s neck and put it over the victim’s nose and mouth. The victim continued to struggle to breathe. The victim bit the respondent’s finger and scratched at his face to try to defend herself.

Count 3: Aggravated sexual intercourse without consent (intentionally inflict actual bodily harm immediately before)

16. The respondent removed his hand from the victim’s mouth. The child PS was still screaming. The victim felt scared for her life and thought the respondent was going to kill her.
17. The respondent then punched the victim a fourth time (“the fourth punch”), to the left side of her face, causing her to lose consciousness.
18. The victim awoke to the respondent penetrating her vagina with his penis. The victim had no recollection of when the respondent removed her shorts, underpants, and tampon. The child PS was no longer in the room. The victim asked the respondent where the child was and the respondent said, “She’s gone into the bedroom”. The victim said, “We need to make sure she’s okay”. The respondent removed his penis from the victim’s vagina and got up from on top of the victim.

Count 4: Sexual intercourse without consent

19. The victim got up from the floor and went into the main bedroom. The victim found the child hiding in the walk-in wardrobe and crying. The respondent walked over and handed the child a toy. The victim sat on the edge of the bed. She felt extreme pain in her head and face, and she was dizzy and disorientated. The respondent then walked over to where the victim was and pushed her onto the bed and penetrated her vagina with his penis for a short time until he ejaculated inside her vagina. The respondent said “I’m going to die today...I’ve already taken 40 sleeping pills...There’s no way I’m going to gaol for what I’ve done to you. I thought two blows would have done you, you’re a lot stronger than I thought you were”.
20. The victim then ran from the house holding the child PS in her arms and wearing only her singlet top, and waved down a passing driver who stopped and assisted along with other witnesses. The victim was observed to have severe facial injuries and dried blood in her hair, down her leg and on her clothes.
21. The victim was taken to hospital by ambulance. She was suffering from multiple bruises to her face and a large left facial haematoma. She was discharged the following day. On 23 January 2019, due to ongoing pain in the left temporomandibular joint region, the victim underwent a procedure in hospital with a maxillofacial surgeon to reduce internal derangement of the temporomandibular joint. The victim was to be treated with occlusal splint therapy (involving temporary plastic appliances fitted to the teeth) for about 6 months to reinforce the procedure.
22. After the offending, the respondent left the house and drove away at speed in the victim’s car. Police located the car in nearby bushland over an hour later and saw a box and blister pack of Seroquel prescribed to the respondent on the ground near the vehicle but were unable to locate him. The following morning (7 December 2018), the respondent knocked on a nearby neighbour’s door. He had multiple lacerations, including deep wounds to his neck and right leg. He seemed disoriented. Police were called and the respondent told them the cuts on his body were because “My wife attacked me”. He was taken to hospital and placed in the Intensive Care Unit and subsequently moved to the neurology ward. He was arrested and charged on 20 December 2018.
23. The respondent suffered a stroke on 7 December 2018.

Proceedings on Sentence

24. As noted above, the respondent initially pleaded not guilty, and entered pleas of guilty on 27 August 2020. The sentence hearing took place two years later on 11 August 2022 – that is, around three years and eight months after the offences were committed.
25. The material tendered by the appellant before the sentencing judge included a series of photographs of the victim’s injuries and a Victim Impact Statement (prepared by the victim in January 2021).
26. Material tendered on behalf of the respondent included a number of personal references and other medical reports. Dr Dayalan (forensic psychiatrist), Dr Wearne (neuropsychologist), Ms Zipparo (senior clinical neuropsychologist) and Dr Furst (forensic psychiatrist) all provided reports which were tendered by the respondent, and all but Dr Furst were called to give evidence and were cross-examined by the appellant.

The respondent’s subjective case

27. At the time of the offending, the respondent was 48 years old with no prior criminal history. He was 53 at the time he was sentenced. His marriage to the victim was his second marriage, and between his first and second marriage he had had some other relationships. He had two adult daughters from his first marriage. He had a history of employment and had been involved in surf lifesaving.
28. Three character testimonials (from two friends and the respondent’s daughter) were tendered on his behalf, as was a letter of apology to the Court from the respondent in which he stated how sorry he was for hurting the victim and the child PS. The respondent also acknowledged the impact of his offending conduct on the other children and the victim’s extended family and said that he was aware that his actions were “totally unacceptable”.
29. In the months leading up to the offending, the respondent had consulted his doctor and on 30 July 2018, the respondent complained that he was very distressed due to his failing relationship with the victim. A mental health care plan was set up and the respondent was referred to, and attended, a psychologist for counselling. Around one month before the offending, on 9 November 2018, the respondent saw his doctor and presented as teary and reported that the victim had left him two weeks earlier. He reported an inability to eat or sleep. He was prescribed antidepressant medication and also a low dose of Seroquel to assist with sleep.

Forensic Psychiatric evidence

30. Dr Furst opined that the respondent had good prospects of rehabilitation and recommended treatment for depression and adjustment issues, including counselling and cognitive behavioural therapy.
31. Dr Dayalan included in his report an account by the respondent that in the lead up to the offences he was experiencing stress at work, financial stress, the death of his grandfather with whom he shared a close relationship, an impaired sleep pattern and a poor appetite. Dr Dayalan also noted that the respondent’s uncle had been sick and that he died on the day of the offences.
32. Dr Dayalan was of the opinion that at the time of the offending, the respondent was suffering from an adjustment disorder with anxiety and depressed mood. Dr Dayalan reported:

“The description of [the respondent’s] behaviour at the time of the offences as per the agreed facts does not indicate acute confusion but is clearly indicative of impaired judgment and impaired ability to consider the consequences of his behaviour. It is noted that he had engaged in the offending behaviour in the presence of his young daughter. Given the uncharacteristic presentation at the time of the offence, it is probable that his psychiatric condition namely the adjustment disorder with anxiety and depressed mood along with the ingestion of Seroquel contributed to the impairment in judgment and capacity to fully appreciate the consequences of his behaviour.”

33. In oral evidence, Dr Dayalan opined that even if Seroquel was excluded as a contributing factor, the mental disorder would still have contributed to the cognitive impairment exhibited by him. He further noted that an adjustment disorder was not considered a serious psychiatric condition, but that the severity can vary between individuals and in this instance, it was serious enough to warrant treatment with antidepressant medication. He also noted that the respondent’s behaviour at the time seemed uncharacteristic. He was unable to state whether there was a significant or a mild impairment, but in light of the respondent’s uncharacteristic behaviour, including the acts done in the presence of the child PS, opined that even without the ingestion of Seroquel, the adjustment disorder probably contributed to the impairment.

Neuropsychological evidence

34. Ms Zipparo performed a neuropsychological assessment in October 2021 during a three-hour consultation via audio visual link (AVL). She also had access to a range of historical medical notes. She agreed with the diagnoses of adjustment disorder with depressed mood made by the respondent’s treating psychologist in the months leading up to the offences. In her report Ms Zipparo stated:

“A clinically significant stress response may be a relevant contributing factor to the current offences given the well-established effect of severe stress on the functioning of the frontal lobes, the area of the brain responsible for good decision-making and the control of impulsive behaviours and risk assessment.”

(Emphasis added.)

35. Ms Zipparo was also of the view that the respondent has an acquired brain injury following his stroke. She opined that he has a significant impairment of working memory so attention and concentration is very poor and would benefit from appropriate targeted cognitive training or retraining which she believed he would not have access to in custody.
36. In cross-examination, Ms Zipparo confirmed the use of the word “may” in the above-quoted passage, and agreed she was unable to say whether the adjustment disorder from which the respondent suffered did in fact contribute to the current offences as there were numerous potential contributors around the time of the offending. She further agreed that even if it did, she was unable to state to what degree, but she stated that the behavioural disturbances from adjustment disorders can be “extremely severe”.
37. Dr Wearne also interviewed the respondent and had access to a range of historical medical notes. He noted that the respondent had had a stroke which occurred after the offending and opined that the respondent’s present cognitive, language and physical difficulties were consistent with an acquired brain injury. He was also of the view that given the level of reasoning and judgment exhibited by the respondent at the time of interview, it was unlikely that any neurobiological or cognitive factor contributed to the respondent’s judgment and decision making at the time of the offending. Rather the conduct was more likely to be emotional and mental health related as opposed to cognitively related, as it was more likely due to the stressors he was under. In cross-examination, he agreed that he was unable to say definitively whether the respondent’s mental health impacted on his thinking and judgment at the time of the offending, or if there was an impact, he was unable to say to what degree.
38. Dr Wearne was of the view that the respondent would have difficulties in custody from a number of perspectives in light of his physical and cognitive difficulties. These difficulties related to his attention and speed of information processing which would make it difficult for him to access relevant treatment that would adequately accommodate his cognitive limitations. His deficits would also cause difficulties in relation to incarceration generally. The respondent was noted to use a walking frame.

Principles on Crown Appeal

39. Section 5D of the Criminal Appeal Act 1912 (NSW) provides to the Attorney-General or the Director of Public Prosecutions a right of appeal against sentence and states that this Court “may in its discretion vary the sentence and impose such sentence as to the said court may seem proper”.
40. The primary purpose of Crown appeals against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1].
41. As can be seen from the terms of s 5D above, even if error is established, the Court has a discretion whether or not to intervene. It is for the Crown to negate any reason why the residual discretion not to interfere should be exercised: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9.
42. The grounds of appeal allege both a patent error (Ground 1) and a latent error (Ground 2 – manifest inadequacy).
43. In relation to Ground 2, the Crown must establish that the sentence was “unreasonable or plainly unjust” such that this Court “may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance” (House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40).
44. Further, as to sentence appeals on the ground of manifest excess or manifest inadequacy, the High Court stated in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] (Gaudron, Gummow and Hayne JJ) (“Wong”):

“... [A]ppellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

45. The task of sentencing requires that the sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender is to be sentenced and the personal history and circumstances of the offender (Wong at [77]). In Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31, the Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) emphasised at [27]:

“... the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion.”

(Footnotes omitted.)

Ground 1: That the sentencing judge erred in his assessment of the objective seriousness of Count 3 by failing to take into account a relevant consideration or, alternatively, mistaking the facts.

46. As noted above, in the sentence proceedings, the Crown relied upon the fourth punch as the circumstance of aggravation for Count 3 pursuant to s 61J(2)(a) of the Crimes Act, namely that the respondent intentionally inflicted actual bodily harm on the victim immediately before the commission of the offence. The appellant submits that the sentencing judge erred in his assessment of the objective seriousness of Count 3 by failing to take into account the aggravating circumstance, that is, the fourth punch, or alternatively, the sentencing judge mistook the fact that the fourth punch formed part of Count 3 rather than Counts 1 or 2. The respondent submits that the appellant has not demonstrated any patent error in the sentencing judge’s remarks.
47. In order to consider this ground, it is necessary to make some observations about the structure of the remarks on sentence (“the remarks”).^[4]
48. The remarks commenced with an observation that the respondent was a 53 year old man with no criminal history who had uncharacteristically engaged in serious offending against his wife. It was noted that the offending behaviour may have something to do with a psychiatric condition which would be dealt with later in the remarks.
49. The sentencing judge then set out the details of the sections of the Crimes Act relevant to the offences for which the respondent was being sentenced, including the maximum penalties and standard non-parole periods. The remarks then included references to the principles concerning the maximum penalties and standard non-parole periods being guideposts, reflecting the seriousness with which the community, by Parliament, views the offending. The sentencing judge stated at [4] “All of this is very serious offending in a domestic violence setting. It calls for strong denunciation and deterrence.” This was reiterated at [47] where he stated:

“Domestic violence calls for condign punishment, particularly when the consequences are, as here, very serious. The law recognises that the prevalence and seriousness of domestic violence requires that considerable weight be given to general deterrence and denunciation.”

50. The sentencing judge, at [5], noted that the Form 1 matters demonstrated the greater need for deterrence and retribution in respect of the offence charged, rather than attracting a separate penalty. The remarks then set out general principles in relation to the standard non-parole period and stated that the sentencing judge would not impose them here as it would result in an “unduly harsh” sentence, particularly in light of the respondent’s “reduced moral culpability”. He further stated that “to do so would contradict the strong finding of special circumstances and the [respondent’s] powerful subjective case”. He nevertheless “had regard to the standard non-parole periods as guideposts” in the sentencing exercise.
51. The remarks then outlined some background details about the respondent and the course of the matter to date. This was followed by a section entitled “The Facts” which commenced with the statement:

“The circumstances surrounding the offending are troubling to say the least. The victim was brutally attacked and raped by the [respondent], some of that occurring in the presence of their youngest daughter who was about 2 years and 4 months of age at the time.”

52. There then followed a paragraph ([14]) summarising the facts from June 2018 when the victim first indicated she wanted to end their marriage to 17 November 2018 when the victim moved out of the family home.
53. The next paragraph ([15]) summarised the facts from 8:55am on 6 December 2018 (the day of the offending) and what happened from the time the victim arrived at the home until the victim, the child and the respondent went upstairs.
54. The following paragraph ([16]) commenced by outlining the conversation which accompanied the movement of the victim, the child, and the respondent upstairs. From about halfway through that paragraph, the sentencing judge set out the facts relating to the first three punches which were the subject of the first charge on the Form 1 (Count 1: assault occasioning actual bodily harm). The last sentence of that paragraph made that clear, stating “These facts are the basis for Count 1 on the indictment” [the first charge on the Form 1].
55. Paragraph [17] of the remarks commenced by stating “The following facts relate to Count 2, intentionally choke a person without consent” (the second charge on the Form 1). The remarks continued, “The victim struggled to breathe and began to scream “‘help me... please someone help me’. The [respondent] then took one hand off the victim’s neck and put his hand over her nose and mouth. She was still struggling to breathe. She recalled biting the [respondent’s] finger and scratching at his face.”
56. The next paragraphs [18] to [20] continued chronologically and I set them out in full:

“[18] The [respondent] removed his hand from the victim’s mouth. The child was still screaming. The victim felt scared for her life and thought that the [respondent] was going to kill her. The [respondent] then punched the victim again to the left-side of her face with a closed fist, causing her to lose consciousness.

[19] The following facts relate to Count 3, aggravated sexual intercourse without consent. The victim awoke to the [respondent] penetrating her vagina with his penis. The victim’s shorts and underpants had been removed but she had no recollection as to when. The victim had been wearing a tampon which was also removed at some point. The victim saw the child was no longer in the room. She asked the [respondent] where the child was to which he replied ‘she’s gone into the bedroom’. The victim said ‘we need to make sure she is okay’. The [respondent] then removed his penis from the victim’s vagina and got up from on top of her.

[20] The following facts relates [sic] to Count 4, sexual intercourse without consent. The victim got up from the floor and walked to the main bedroom. The child was hiding in the walk-in robe and crying. The [respondent] walked over to the child and handed her a toy. The victim sat on the edge of the bed. She felt extreme pain to her head and face and was dizzy and disorientated. The [respondent] then walked over to where the victim was sitting and pushed her onto the bed. The victim was lying on her back. The [respondent] then lifted the victim’s legs so they were positioned over his shoulders. The [respondent] stood on the floor and again penetrated the victim’s vagina with his penis for a short time until the [respondent] ejaculated inside the victim’s vagina.”

(Emphasis added.)

57. The appellant argues that the words and structure of the above paragraphs make it clear that the fourth punch discussed in paragraph [18] was not included – as it should have been – as part of Count 3, the facts of which were purportedly set out by the sentencing judge in paragraph [19] commencing with the words: “The following facts relate to Count 3”. Whether the omission was more than an inconsequential slip can be further analysed by considering other passages in the remarks.
58. The appellant invites the Court to consider further portions of the remarks under the heading “Objective seriousness”. The respondent had contended to the sentencing judge that the offending fell below the mid-range of objective seriousness and put arguments in support of that contention. The sentencing judge set out the submissions for the respondent at [48], followed by the submissions for the appellant at [49]. Within [48] of the remarks, in the course of setting out the respondent’s arguments, the sentencing judge also included his assessment of each of the respondent’s arguments at the end of each sub-paragraph. At sub-paragraph (e) the following was stated:

“(e) there was some initial force. The victim was punched in the face with the [respondent’s] closed fist on a number of occasions rendering her unconscious enabling him to sexually assault her. The evidence does not permit any assessment of the degree of violence in the aggravated sexual assault being Count 3. The significant acts of violence are captured by Counts 1 and 2. I will not have regard to those acts in assessing the objective seriousness of Counts 3 and 4, other than those in the manner permitted by reason of the fact that those charges are on a Form 1”

(Emphasis added.)

59. The appellant contends that the emphasised portion of the remarks show the sentencing judge fell into error. The appellant contends that the evidence did permit an assessment of the degree of violence in Count 3 – that was the fourth punch which rendered the victim unconscious. Further, the “significant acts of violence” were not captured in their entirety by Counts 1 and 2. Rather the fourth punch was part of Count 3, and not part of Counts 1 or 2.
60. I note that in paragraph [49] of the remarks the sentencing judge went on to record the appellant’s arguments in relation to the objective seriousness of Count 3 which was argued by the appellant at sentence to fall well above the mid-range. This paragraph referred to violence and injuries in the following passage: “having regard to the degree of violence, the element of domestic violence, the significant injuries sustained requiring treatment, the duration, the sustained nature of the offence globally, the humiliation of the victim and the risk of pregnancy.”
61. However, in setting out his findings in relation to objective seriousness at [52] of the remarks, the sentencing judge noted that he had given consideration to the submissions referred to above and stated:

“In respect of Count 3, aggravated sexual assault, I find the offending falls just above the mid-range taking into account that the offending occurred initially whilst the victim was unconscious. The [respondent] removed part of the victim’s clothing and a tampon, the offending took place between a husband and wife albeit in separation and the act was committed in what was the family home”.

62. The appellant argues that this finding does not reflect the violence of the fourth punch which was forceful enough to render the victim unconscious. Indeed, I note that the passage at [52] does not refer to violence at all.
63. The respondent contends that the violence was taken into account in relation to Count 3. He points to the reference in the remarks by the sentencing judge to the aggravated form of the offence, and the correctly nominated maximum penalties. The respondent contends that if the reasons are looked at as a whole, the fourth punch was adequately recognised. Further, the respondent argues that the whole of the violence was appropriately taken into account via the Form 1 process. Thus, the respondent submits that the sentencing judge was not bound to accept the Crown’s assessment of the objective seriousness and that the finding of “just above the mid-range” was open and available to the sentencing judge after taking into account the facts and other aggravating circumstances.
64. In my view, it is clear for the reasons advanced by the appellant that the fourth punch was disregarded by the sentencing judge in his assessment of the objective seriousness of Count 3. That other violent acts were taken into account via the Form 1 process is not relevant. The fourth punch was a serious act of violence which rendered the victim unconscious and was a critical element of Count 3. The failure to take it into account caused the judge to fall into error when assessing the objective seriousness of Count 3.
65. Accordingly, in my view, Ground 1 should be upheld.

Ground 2: That the sentence imposed is manifestly inadequate.

66. The appellant contends the following particulars help to inform how the sentencing judge reached the manifestly inadequate sentence:

(1) The indicative sentences did not reflect the objective seriousness of the offending;

(2) The sentencing judge erred in his approach to the respondent’s mental condition;

(3) The sentencing judge erred in imposing a non-parole period that failed to reflect the criminality of the offending; and

(4) The overall sentence is unduly lenient and fails to reflect sufficient specific and general deterrence and denunciation.

67. The respondent submits that the aggregate sentence imposed by the sentencing judge was “reasoned and consistent with sentencing principle and lay in the range of penalty commensurate with the offending and the subjective circumstances and findings of the sentencing judge”.
68. It is convenient to deal with each of the particulars in turn.

(a) The indicative sentences did not reflect the objective seriousness of the offending

69. The appellant acknowledges that indicative sentences are not themselves amenable to appeal, and that even if they are inadequate, it does not necessarily follow that the aggregate sentence is manifestly inadequate. However, they may be a guide as to the whether there is error in the ultimate sentence: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]; R v Hill [2020] NSWCCA 197 at [105]. See also Ladas v R [2022] NSWCCA 160 at [31] and Kliendienst v R [2020] NSWCCA 98 at [76]- [103].
70. The appellant contends that there is a significant disconnect between the findings of objective seriousness that were made and the indicative sentences nominated by the sentencing judge. The appellant further contends that in any event, the finding of objective seriousness for Count 3 was erroneously low because of the error in failing to factor in the fourth punch. The appellant also points to the indicative sentence for Count 3 as failing to reflect the two Form 1 offences which were both serious examples of offending of their type.
71. Whilst it is acknowledged that the sentencing judge referred to the Form 1 offences at [5] and said that the “existence of these additional offences demonstrates the greater need for deterrence and retribution in respect of the offence charged”; and also referred to the need to take them into account at [48(e)] and [86], the appellant contends that more needed to be done. The appellant submits that the sentencing judge should have made an assessment of the seriousness of the Form 1 offences and identified the extent to which those matters increased the need for deterrence and retribution in determining the sentence for Count 3.
72. As noted above, the sentencing judge assessed the offending for Count 3 as “just above the mid-range” but specified the indicative sentence as 7 years imprisonment with a non-parole period of 3 years and 6 months (after taking into account the 5% discount for the plea of guilty). This was against the guideposts of a maximum penalty of 20 years and a standard non-parole period of 10 years.
73. As to Count 4, the appellant contends that the indicative sentence of 4 years with a non-parole period of 2 years failed to reflect the sentencing judge’s finding that the offending fell at the “mid-range” and that it did not have appropriate regard to the guideposts provided by the maximum penalty of 14 years imprisonment and the standard non-parole period of 7 years.
74. Comparative sentences were referred to by the appellant, as were sentencing statistics.
75. I have considered the sentences drawn to the attention of the Court by the appellant. These were McClelland v R [2019] NSWCCA 59; Hunt v R [2021] NSWCCA 192; SC v R [2019] NSWCCA 25 and Armstrong v R [2017] NSWCCA 323. None are pointed to by the appellant as being on all fours with this case, and nor is it expected that any of them would be.
76. It is well established that whilst some assistance may be obtained from looking at previous cases, the individual circumstances of each must be examined, and caution should be exercised. Even if comparative cases establish a range, that does not signify any concrete outer limit as it is simply a record of what has been done in the past. It does not fix the boundaries within which future judges should sentence. The attempt which is to be made is to discern unifying principles from past cases, and what is sought is consistency in the application of principle, not numerical equivalence: Sharma v R [2022] NSWCCA 190 at [76]- [82]; Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [53]- [55].
77. The respondent draws out some differences between the cases referred to by the appellant and the case before the Court and contends, in summary, that the higher sentences imposed in those cases were distinguishable. It is true that all of the above cases involved sentences imposed following a trial and the offending conduct occurred over a longer period, or on more than one occasion. However, the difficulty in utility in looking at these cases includes the fact that the precise charges were different in each case; and the objective circumstances of each case as well as the personal circumstances of each of the offenders were quite different.
78. In my view, little assistance is gained from the above cases, except to the extent that they do not show that the appellant’s argument of manifest inadequacy is unfounded.
79. As indicated above, statistics were also provided by the appellant – relating both to sentences following pleas of guilty as well as not guilty (which are said to have relevance because even though there was a plea of guilty in this case, it was a very late plea).
80. The respondent contends that the sentencing judge did not fall into error and that the statistics show that the indicative sentences were within range. Further, the respondent submits that the appellant’s statistics in relation to sentences following pleas of not guilty were not relevant as a plea of guilty has a wider effect than an arithmetic discount. The respondent submits that a plea of guilty affects matters including remorse, positive findings of rehabilitation, De La Rosa factors,^[5] as well as other matters in favour of the respondent.
81. The respondent further submits that the statistics showed that the indicative sentence applied to the respondent for Count 3 was a year greater than the mean head sentence (later clarified to be referring to the “mode” or “most common” head sentence) imposed for 65 other offenders convicted under s 61J(1) of the Crimes Act and that the indicative sentence for Count 4 was also a year greater than the most common head sentence imposed for 99 other offenders convicted under s 61I of the Crimes Act. As such, the respondent submits that given the indicative sentences imposed by the sentencing judge were above the most common head sentence imposed on relevant offenders, that helped to show that the indicative sentences were commensurate with the findings as to objective criminality.
82. I am of the view that statistics have very little to offer in appeals such as this which involve a close consideration of the facts and the particular circumstances of the offender in light of the guideposts provided by the maximum penalty and the statutory non-parole period. Whilst statistics provide a crude indication of the range of numerical outcomes in past sentences (or indicative sentences), they provide little more than a wholistic pattern without any analysis of the detail of any of the matters leading to the outcomes. In my opinion, in most cases, statistics add very little to a contention that a particular sentence is manifestly excessive or manifestly inadequate.
83. Turning back to the matter before the Court, I am of the view that the indicative sentences nominated by the sentencing judge, albeit not amenable to appeal themselves, assist in revealing that the sentencing judge fell into error.
84. Count 3, even by itself, was a brutal aggravated rape by the respondent against his recently estranged wife in the family home which she had attended for the purposes of a shared custody arrangement. The rape occurred in circumstances where the respondent knew she was not consenting, and she was overcome by a forceful blow of such violence that she was rendered unconscious. Such offending was well above the mid-range of objective seriousness. Further, when the two Form 1 offences are taken into account, each of which are themselves very serious examples of offending, it is clear that the indicative sentence for Count 3 required an appropriate increase to reflect specific deterrence and retribution. The indicative sentence for Count 3 nominated by the sentencing judge simply did not reflect that any such increase was factored in.
85. Further, the indicative sentence for Count 4 failed to reflect the finding of “mid-range” seriousness. This was a serious example of rape. The respondent knew that the victim was not consenting, he did not use a condom, and he ejaculated inside her vagina. There was a risk of disease and pregnancy. The victim’s resistance had already been overcome by the earlier violence and she was still suffering from its physical effects. Although the respondent had stopped the aggravated sexual assault in Count 3 out of the victim’s concern for the welfare of the child PS, he did not cease offending to allow the child PS to be removed from the house by the victim and comforted. Rather, the respondent simply gave the child PS a toy and committed a further sexual assault on the victim to the point of ejaculation. Meanwhile, the child PS was in the walk-in wardrobe where she had been hiding, in distress, having recently witnessed her mother being brutally assaulted.

(b) The sentencing judge erred in his approach to the respondent’s mental condition

86. The appellant contends that whilst it was open for the sentencing judge to find a link between the offending and the adjustment disorder, the sentencing judge erred when he proceeded to substantially mitigate the sentence in an unqualified manner, resulting in an unduly lenient sentence. In doing so, it is argued that the sentencing judge made no finding as to the extent to which the respondent’s moral culpability was reduced, nor why or to what extent, general and specific deterrence may be moderated.
87. The respondent submits that the “suicidal intention, the interruption of the sexual intercourse, and the infliction of injury upon himself were all examples of the disordered and irrational presentation of the respondent”.
88. The respondent further submits that it was not suggested that the respondent was suffering from “acute confusion...as pertaining to not knowing where he was or what he was doing, but that his mental condition affected his judgment and ability to make decisions”.
89. The sentencing judge set out the principles from De La Rosa and noted that the Crown conceded that the need for general deterrence was moderated.
90. The sentencing judge went on to note that he was satisfied there was “a link” between the respondent’s mental condition and the offending for a number of reasons, including that his behaviour was extremely out of character; he displayed “a complete lack of judgment and insight into the consequences of his offending”; the expert evidence demonstrated that an adjustment disorder with anxiety and depressed mood may have impacted his judgment and cognitive process; his behaviour appeared to have been confused with a lack of awareness and understanding of what he was doing; and the victim had noticed a “strange look” in his eyes as he was committing the offences which suggested a degree of impairment.
91. However, at [78] of the remarks the sentencing judge stated:

“I am satisfied, on the balance of probabilities that the offender was impaired at the time of the offending so as to attract the moderation of the sentence considered by the court in De La Rosa. I find that the offender’s moral culpability is reduced and that he would be an inappropriate vehicle for general deterrence. I also find the need for specific deterrence is reduced.”

(Emphasis added.)

92. As stated in Aslan v R [2014] NSWCCA 114 at [33] (Simpson J (as her Honour then was), Adams and McCallum JJ agreeing at [55]-[56]) (“Aslan”):

“This court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows:

[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...
[Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ...
[Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ...
[Principle 4] It may reduce or eliminate the significance of specific deterrence ...
[Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ... (internal citations omitted, italics added).”

93. As also noted in Jeffree v R [2017] NSWCCA 72 at [31]- [33] (Beazley P, Walton and R A Hulme JJ agreeing at [51]-[52]) in the context of discussing Aslan:

“Simpson J pointed out, at [34], that none of these principles is absolute in its terms, nor is any there any presumption as to their application. It will be a matter for the court in each case to examine the relevant facts to determine whether in the case at hand, the mental condition has an impact on the sentencing process.

Her Honour continued, at [35]:

‘A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2).’ (emphasis in original)

The approach in Aslan was confirmed and applied in Laspina v R [2016] NSWCCA 181 at [39].”

94. Further, as Hunt CJ at CL observed in R v Wright (1997) 93 A Crim R 48 at 51, where an offender acts with knowledge of what they are doing and with knowledge of the gravity of their actions, the moderation of the need for general deterrence need not be great (referred to with approval in Wang v R [2021] NSWCCA 282 at [98] (R A Hulme J, Meagher JA and Davies J agreeing at [1], [123]).
95. The sentencing judge’s findings at [78], that the respondent’s moral culpability was reduced, that he would be an inappropriate vehicle for general deterrence, and that the need for specific deterrence was reduced, were made without nuance or qualification.
96. This lack of qualification is particularly problematic in relation to general deterrence, where it appears that the sentencing judge determined that general deterrence should not be reflected in the sentence at all. This did not accord with the earlier statements made by the sentencing judge at [4] and [47] (set out above) in relation to general deterrence. Further, at [82], the sentencing judge highlighted denunciation but not general deterrence when he stated:

“As the offending arose in the context of a domestic relationship it is necessary that the sentence also denounces the offender’s conduct. The purpose of promoting rehabilitation is also of great significance in this instance.”

97. In this case, although some amelioration of general deterrence was warranted, it was not appropriate for no weight to be given to general deterrence. This is so for the following reasons:

(1) At the time of the offending, the agreed facts record that the respondent said, “I’m going to die today...I’ve already taken 40 sleeping pills...There’s no way I’m going to gaol for what I’ve done to you. I thought two blows would have done you, you’re a lot stronger than I thought you were.” Contrary to the finding of the sentencing judge, this shows that the respondent showed awareness and insight into the gravity of what he had just done, and at least some of the consequences of the offending.

(2) His ability to pause the Count 3 offending to check on the welfare of the child PS, and then commit a further sexual assault again suggests, contrary to the finding of the sentencing judge, awareness and understanding of what was happening.

(3) Dr Dayalan found that the respondent’s behaviour did not indicate “acute confusion” and that the respondent knew the nature of his acts.

98. When considering the judgment as a whole, including the sentence ultimately imposed, I am of the view that the sentencing judge erred in allowing no weight to be given to general deterrence in these circumstances. The agreed facts and the medical evidence demonstrated the respondent’s awareness of his actions. The evidence, together with the domestic violence context in which this offending occurred, was such that whilst some amelioration was justified, general deterrence should not have been entirely set aside and should have been given appropriate weight: Wornes v R [2022] NSWCCA 184 at [40]; Palijan v R [2010] NSWCCA 142 at [27].

(c) The non-parole period failed to reflect the criminality of the offending

99. The sentencing judge found special circumstances and set the non-parole period at 50%, a significant departure from the statutory ratio of 75% pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The appellant contends that the extent of the departure was unwarranted.
100. The respondent submits that the appellant did not oppose the finding of special circumstances and that the size of the ratio was a discretionary finding with which this Court would be slow to interfere.
101. It is well-established that a finding of special circumstances is a discretionary finding of fact with which this Court will be slow to intervene: Caristo v R [2011] NSWCCA 7 at [27]. As stated in Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 628:

“In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.”

102. The importance of the non-parole period for the purposes of general and specific deterrence was conveniently summarised in Regina v M A [2004] NSWCCA 92; (2004) 145 A Crim R 434 at [33]:

“...the purpose of fixing the non-parole period is not to convert a punishment into an opportunity for rehabilitation, but that the non-parole period should be the minimum period that the offender must spend in gaol having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and the subjective circumstances. Considerations which the sentencing judge must take into account when fixing the non-parole period are the same as those applicable to fixing the head sentence, although the weight to be attached to such factors and the way in which they are relevant differ due to the different purposes behind each function. A serious offence warrants a greater non-parole period due to its deterrent effect upon others, but the nature of the offence does not assume the importance it has when the head sentence is determined... Considerations of general deterrence are at least equally significant to both decisions which are, in any event, interrelated...”

(Citations omitted.)

103. In Hejazi v R [2009] NSWCCA 282 at [36] it was also stated:

“...the ultimate question to be asked is what is the least period the offender is required to serve before being eligible for parole? The answer to that question will depend upon a consideration of all the purposes of punishment and not simply the rehabilitation of the offender.”

104. It is also well-established that the reduction of the non-parole period by a finding of special circumstances cannot result in an overall non-parole period that fails to reflect the seriousness of the offence and both specific and general deterrence: Maglis v R [2010] NSWCCA 247 at [28]; R v West [2011] NSWCCA 91 at [56].
105. It is fairly conceded by the appellant that the respondent’s medical condition, the impact of the COVID-19 pandemic and the finding that he had been on “protection” were matters which would justify a finding of special circumstances. Further, the fact that it is the appellant’s first time in custody, allows for some reduction of the non-parole period, albeit, on its own, not a significant one: R v Bortic [2021] NSWCCA 138 at [166]- [176] (Bellew J).
106. The respondent accepts that the statutory ratio of 50% is a significant departure but submits that it reflects the “unique circumstances of the offending, the subjective findings, the continuing issues around the pandemic, the parlous state of the respondent’s health and ... [the] logical and undisputed facts established on the evidence.”
107. In my view, the degree of departure from the statutory ratio to 50% resulting in a non-parole period of 4 years resulted in a non-parole period which simply did not reflect the criminality involved in this serious offending and bespoke error.

(d) The overall sentence is unduly lenient and fails to reflect sufficient specific and general deterrence, and denunciation

108. The appellant points to a range of objective features to make good its argument under this particular as follows:

(1) This was a violent and brutal rape;

(2) The victim was knocked unconscious;

(3) The respondent knew that the victim was not consenting;

(4) The victim suffered significant physical and psychological injury;

(5) The offence occurred in the victim’s home;

(6) The offending was interrupted by the victim out of her concern for the welfare of the two-year-old child PS who was nearby, but the respondent continued thereafter with a further sexual assault;

(7) The respondent ejaculated into the victim’s vagina;

(8) The victim was humiliated and was required to flee the respondent naked from the waist down and bleeding, carrying the child PS;

(9) It was a crime of significant domestic violence; and

(10) There was a need to take into account the matters on the Form 1.

109. The respondent submits that a sentence of 8 years (following the application of statutory discount of 5%) is not an insignificant sentence and not manifestly inadequate as it “reflects general deterrence and specific deterrence at the levels found by [the sentencing judge]”. The respondent further submits that the physical and emotional harm of the victim was not advanced as an additional aggravating feature by the appellant at sentence.
110. The respondent submits that the following mitigating features were found by the sentencing judge:

(1) No prior criminal record;

(2) The offences were not part of a planned or organised criminal activity;

(3) The respondent was unlikely to reoffend and had good prospects of rehabilitation; and

(4) The respondent had shown remorse, accepted responsibility for the offending and acknowledged the considerable harm caused by it.

111. When considering the competing arguments, it can be noted that the two offences carried a combined maximum term of imprisonment of 34 years, with standard non-parole periods of 10 years and 7 years respectively. There was a late plea of guilty, attracting only a 5% discount. Even allowing for a large degree of notional concurrency of the indicative terms and taking into account the compelling subjective case of the respondent, in my view, it is clear that the aggregate sentence of 8 years with a non-parole period of 4 years failed to appropriately recognise the important principles of general deterrence and denunciation for this very serious offending. This was a brutal and violent rape committed in the family home. The victim was knocked unconscious and was raped whilst unconscious, with the rape continuing after she regained consciousness. Part of the offending was in the presence of the two-year-old child PS. There were four blows to the victim in all, and an act of choking. All were committed with the knowledge that the victim was not consenting. The victim was humiliated in having to run naked from the waist down into the street with the child PS.
112. Whilst it is appropriate to make due allowance for the mental condition of the respondent at the time of offending, the significant medical condition suffered by the respondent shortly after the offending, and the other significant subjective factors including his lack of criminal record, his remorse and prospects of rehabilitation, those factors cannot be permitted to reduce the sentence to a point where general deterrence, specific deterrence and denunciation are not properly reflected in the ultimate sentence.
113. Accordingly, in light of all the matters referred to above, Ground 2 should be upheld.

Residual Discretion

114. Having found error under both grounds, it remains for the appellant to satisfy the Court that it should not exercise its discretion to decline to intervene.
115. As acknowledged by the appellant, the main factor in favour of the Court exercising its discretion not to intervene is the imminence of the respondent’s release to parole on 13 December 2022. This is identified as one of a number of circumstances in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [43] which may combine with others to produce “too high a cost in terms of justice to the individual” if the appeal were to be allowed. See also Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [77] and Cumberland v R [2020] HCA 21 at [6].
116. In this case, however, there was no delay in the institution, service or listing of the appeal. The sentence was delivered on 1 September 2022. On 14 September 2022, the respondent was notified by the Office of the Director of Public Prosecutions that the institution of a Crown appeal was being recommended to the Director, and the Notice of Appeal was filed on 29 September 2022 and served on the respondent on the following day.
117. Whilst an Amended Notice of Appeal was filed on 9 November 2022, no issue is taken by the respondent with the amended grounds.
118. Overwhelmingly, the delay in this matter has been as a result of certain decisions made by the respondent in the conduct of it.
119. Further to the issue of discretion, the respondent also submitted that the appellant did not raise the issue underpinning Ground 1 at the time of sentence. The respondent further submitted that the Crown “did not oppose the findings of special circumstances, remorse, risk, rehabilitation nor the factual findings relevant to the respondent’s subjective case” and that for those reasons, the residual discretion should be exercised in the present appeal not to intervene.
120. In my view, the conduct of the appellant before the sentencing judge did not contribute to the errors now relied upon. In all of the circumstances, I am of the view that the appellant has satisfied the Court that it should not exercise its discretion to decline to intervene. Given the seriousness of the offending, and the need for clear general deterrence and denunciation, I am of the view that the Court should intervene to increase the respondent’s sentence to properly reflect those matters.
121. In light of the day-to-day physical and mental difficulties the respondent faces in custody as a result of his brain injury, as well as the effect of COVID-19 on his custodial conditions for some of his period in custody, some amelioration of the head sentence which is otherwise appropriate should be made. I also take into account (as it was not contested by the appellant) that some of the respondent’s time in custody was spent in protection. These matters, together with the fact that this is his first time in custody, also justify a finding of special circumstances such as to alter the statutory ratio of the non-parole period. As to the notional accumulation of the two indicative sentences, I am of the view that more than 6 months notional accumulation is appropriate, given the circumstances in which the second sexual assault was embarked upon.
122. In my view, the indicative sentence for Count 3, taking into account the matters on the Form 1 as well as the 5% discount for the late plea of guilty, is 8 years and 6 months with an indicative non-parole period of 5 years.
123. For Count 4, after a discount of 5%, I am of the view that an indicative sentence of 5 years and 6 months with an indicative non-parole period of 3 years is appropriate.
124. I would impose an aggregate term of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months.
125. The orders I propose are as follows:

(1) Grant leave to file the amended grounds of appeal;

(2) Allow the appeal;

(3) Quash the sentence imposed on the respondent in the District Court on 1 September 2022 and in lieu thereof, sentence the respondent to a term of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months commencing on 7 December 2018. The date the respondent is first eligible for release to parole is 6 September 2024.

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^[1] Pursuant to s 5D of the Criminal Appeal Act 1912 (NSW).
^[2] A pseudonym pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW).
^[3] On 7 December 2018, the respondent was placed under guard by police whilst in hospital. The respondent was formally arrested and charged on 20 December 2018.
^[4] Pursuant to s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
^[5] R v SS [2022] NSWDC 399.