R v Ponting[2022] QCA 83

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  On 30 April 2021, the appellant was convicted, following a trial, of one count of burglary in the night and one count of sexual assault.  He was sentenced to eight years’ imprisonment for the burglary and a concurrent six years’ imprisonment for the sexual assault.  Those sentences were ordered to be served cumulatively upon a previous term of imprisonment imposed on the appellant in 2016, because the offences were committed whilst the appellant was still serving that term, albeit under the supervision of parole authorities.^[1]  In addition, in respect of the sexual assault conviction, the appellant was declared to have been convicted of a “serious violent offence”,^[2] with the consequence that he will not become eligible for parole until he has served 80 per cent of that sentence.^[3]

2. [2]
   The appellant appeals against his conviction on the ground that it is unreasonable or cannot be supported having regard to the evidence,^[4] and applies for leave to appeal against his sentence, on the ground that it is manifestly excessive.

Appeal against conviction

3. [3]
   The offences were committed in the early hours of 28 November 2018, around 5.30 or 5.45 am.  The complainant was asleep, alone, in her unit on the second floor of a block of units in West End.  She had locked her front and back door, but left her bedroom and lounge room windows open.  As the complainant woke up that morning, she felt a pressure over the top of her body, and felt someone touching her vagina.  She saw a man hovering over her; a man she had never seen before.  She was very shocked, and immediately started screaming “Who are you?!” and “Get out!”.  At that, the man jumped off the bed, reached down for what the complainant believed was clothing and ran out of the flat.  The complainant saw his bare legs running out of the flat.
4. [4]
   The prosecution’s case against the appellant was a circumstantial one.  The only issue in the trial was identification:  was it the defendant who committed the offences?
5. [5]
   On this appeal, the question the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.  In answering that question, the Court must pay full regard to the considerations that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that the jury had the benefit of having seen and heard the witnesses.^[5]
6. [6]
   In that regard, as recently affirmed by the High Court in Coughlan v The Queen (2020) 267 CLR 654 at [55]:

“An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard.  That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.” [references omitted]

7. [7]
   And as the High Court earlier said, in R v Baden-Clay (2016) 258 CLR 308 at [47]:

“For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’. Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’. The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.” [references omitted]

8. [8]
   The evidence led at the trial was as follows.
9. [9]
   Just over a week after the offences were committed, the complainant participated in a photoboard identification process arranged by the police.  The complainant selected number 11 from the photoboard as the person who had assaulted her, which was a photo of the defendant.  The complainant recorded, on the back of the document, “number 11 from all the photos appears to be the man who assaulted me.  However I can not be 100% certain”.  She also said to the police at the time, “this is not very scientific, but I just have a strong vibe about this picture”, observing that a “mug shot [is] very different to a person’s face”.  In cross-examination, the complainant was asked how long she had the man under observation before he ran off.  She responded: “Long enough not to have that face leave my mind … Ever since…”; later adding that “[h]e was over me probably for five or so minutes I would say”.
10. [10]
    When spoken to by police on the day of the offences, the complainant described the offender as being a Caucasian male, approximately mid-30s, with brown hair and wearing a shirt and no pants.  When asked in cross-examination, she could not describe him further (in terms of whether he had olive or fair skin, a solid or thin build), explaining that was not something she was thinking about at the time, she just wanted him “off of me and out of my home and to stop touching me”.
11. [11]
    The complainant described seeing the back of the man’s legs as he ran away.  She did not believe he was wearing underpants.  She did not remember seeing a tattoo, nor a “steel bracelet” around his ankle.  She agreed that once he was up and running out of the flat she had him under observation for only a matter of seconds.
12. [12]
    After the man ran off, the complainant looked outside her window and saw there were quite a few people looking up at her flat.  One of these people, a woman who lived in a block of units nearby, Ms Hough, gave evidence that she was up early that day, working.  Shortly before 6 am, she heard a woman’s voice, “very loud and distressed and angry”, screaming “Get out, get out.  Oh my God. Get out” repeatedly.  She went out to see what was happening, and noticed there were other people – neighbours and workers from a nearby construction site – there as well.  She went to help the woman (the complainant) who was very distressed.  Ms Hough did not see anyone running out of the block of flats.
13. [13]
    Mr Platt, a plumber who was working on a nearby construction site at the time, was parked on the complainant’s street, waiting to start work, shortly before 6 am on 28 November 2018.  He heard a female voice screaming “get out, get out, get out!”  He looked around, up and down the street, and could not see anything going on at first; but then he saw a man running down some stairs out of one of the buildings and then run to another set of stairs.  He was only wearing a t-shirt, was naked from the waist down, looked as if he was carrying a bundle of clothes, and was “definitely in a hurry”.  Mr Platt searched for the man, including going around the back of the buildings, but was unsuccessful.  Mr Platt did not see whether the man had any tattoos on his legs, and did not see anything silver around his ankle, but agreed he only had the man under observation for a matter of seconds.  He also agreed that he had described the man, at the time, as having “a Mediterranean appearance or olive skin”.
14. [14]
    A young couple, Mr Jackson and Ms O'Neill, who lived in the flat below the complainant also gave evidence.  They awoke on the morning of 28 November 2018 to the sound of screaming coming from the upstairs flat, and the words “Get out! Get out!” repeated over and over again.  They went out to see what was happening, but did not see anyone.  Ms O'Neill said she felt really scared and called triple-O.  She found the complainant, describing her as very distressed and sobbing.
15. [15]
    Another neighbour who lived in the same block of flats, Mr McCarthy, thought he had heard footsteps in his unit, and also what sounded like a door closing, while he was in the shower at about 5.15 am that morning.  He had left his front door open, as was his habit.  Later he noticed that his back door was also open, which was unusual.
16. [16]
    Several police officers attended the scene and gave evidence at the trial.  These included Senior Constable McLeod, a dog squad officer, who attended the scene with his police dog.  After searching around the complainant’s block of flats, SC McLeod and his dog went to another location nearby.  SC McLeod described observing a person in a bin enclosure behind a boarding house.  When he was challenged by the officer to come out, the person initially walked towards him, then threw a bin down on the ground between them, turned around and ran off.  He was seen jumping a fence into the boarding house and SC McLeod lost sight of him.  It is reasonable to infer this was the appellant, as he gave evidence of being confronted by a “cop dog and a cop”.
17. [17]
    Sergeant Seymour was the shift supervisor on the day.  He attended the scene a bit later.  As he was driving there, at a nearby intersection, he noticed a male person who turned to look at him and, when he saw the police vehicle, immediately ran away.  Sergeant Seymour was aware there was a police dog in the area and called for assistance.  Whilst waiting, he saw the male person again.  They looked at each other, and then the man started running again.  The police dog tracked the man to behind a boarding house; but the police were unable to locate the man at that time.
18. [18]
    Sergeant Seymour then reviewed CCTV footage from the area, maintained by a local “traders’ association” and was able to identify the person he had seen running away.  A few hours later, at about 11.30 am, the appellant was located by Sergeant Seymour in a nearby public toilet cubicle.  The shoes he was wearing matched the shoes that could be seen in the CCTV footage.  He was subsequently taken to the police station for questioning and then arrested.
19. [19]
    The appellant was on parole at this time.  One of his parole conditions required him to wear a GPS monitoring device on his ankle, and he was wearing this device when he was taken to the police station on 28 November 2018.  The manager of the electronic monitoring unit within Queensland Corrective Services gave evidence of the data able to be extracted from the device worn by the appellant, in terms of his location between 5.13 am and 6 am on 28 November 2018.  This included evidence about “environmental factors” that may affect the accuracy of the monitor, such as weather and being inside a building.  In short, the data put the appellant in the vicinity of the address of the complainant’s block of flats at the relevant times.  But it could not place him inside the particular flat.
20. [20]
    The evidence at the trial also included a number of admissions made under s 644 of the Criminal Code.  These included that the appellant was, at the relevant time, a resident of the West End area and was on parole and required to wear a “smart tag ankle bracelet to allow Queensland Corrective Services to monitor his movement”, that he was in the vicinity of the complainant’s address from around 5.13 am to 6 am on the day in question; and that at approximately 11.30 am on that day, was located by police inside a cubicle in a toilet block at an address nearby.
21. [21]
    It was also admitted that the appellant had previously been convicted of the following offences on the following dates:

“a. 08/12/2008 – Launceston Court of Petty Sessions – Assault on 18 December 2007, on [Ms H]. At about 12:20 am [Ms H] was awoken whilst in her bed with Daniel William Ponting lying on top of her, pinning her to the bed by applying pressure to her shoulders. She struggled whilst Ponting attempted to prise her legs apart with his knees. She was struck by Ponting to the side of her head and he then ran from the bedroom. Prior to the assault the doors to her residence had been locked, however a window in her bedroom had been left open.

b. 08/12/2008 – Launceston Court of Petty Sessions – Aggravated burglary on 21 December 2007, involving [Ms S]. At approximately 3:20 am [Ms S] was awoken whilst in bed by the feeling of a ‘touch’ on her leg. She saw Daniel William Ponting kneeling at the end of her bed, and she screamed. Ponting ran and she noticed that he was naked from the waist down and wearing only a singlet. Ponting appeared to have gained access by standing on a wheelie bin, climbing onto the complainant’s balcony and entering through the open balcony door.

c. 08/12/2008 – Launceston Court of Petty Sessions – Aggravated burglary on 12 June 2008, involving [Ms T]. At about 3:30 am she was awoken whilst in bed when Daniel William Ponting commenced pulling down her doona. She screamed and Ponting ran out of the bedroom. [Ms T] had inadvertently left her keys in the front door, allowing Ponting the method to unlawfully enter her home.

d. 09/12/2016 – Beenleigh District Court – Burglary by break in the night and sexual assault on 1 April 2014, involving [Ms Ab]. [Ms Ab] was awoken whilst in bed at night (in the middle of the night after going to bed at 11 pm) by the feeling of a hand moving from her waist to her buttocks. She screamed, hit the hand away and then observed Daniel William Ponting running from her bedroom, exiting through the screen door in her lounge area.

e. 09/12/2016 – Beenleigh District Court – Burglary by break in the night and sexual assault on 15 April 2014, involving [Ms Al]. At about 4:45 am [Ms Al] was awoken, whilst in bed, by the feeling of a hand touching her right hip. She saw Daniel William Ponting crouching down beside her with his right hand under the sheet. She screamed and Ponting ran. Ponting had gained entry to the home by cutting a flyscreen and sliding open a glass door.”

22. [22]
    An earlier application by the appellant to exclude the evidence of these prior convictions was unsuccessful.  There is no challenge to that ruling on this appeal.
23. [23]
    The appellant gave evidence at the trial.  He said he had been living at an address near to the complainant’s address at the relevant time, having been released from custody on 11 October 2018.  He said there was a place, on the complainant’s street, that he regularly sat, on a bench under a tree.  He said he had a tattoo on the back of his right leg, which he got in 2013.  On the day in question, the appellant said he got up early, about 4.30 am, and made sure his ankle monitor was charged because he was going down to Bribie, both to see a female friend and to buy amphetamines.  Later in his evidence, though, he described “getting the gear” off a bloke who he met up with in West End.  At some stage, he thought he heard a loud noise, like sirens.  When it got closer, he saw it was a police van.  At first he just kept walking but then after hearing a “big screech”, he turned around, thought they were looking straight at him and “without me thinking, I actually took off”.  He said he ran because he had ice on him and because he does not trust police.
24. [24]
    The interaction between the appellant and Sergeant Seymour, when he was found in the toilet cubicle, was recorded on the body-worn camera worn by Constable Trembath.  Before the officers have said anything to the appellant about why they want to speak to him, the appellant says “Bob keeps breaking into houses and shit”.  Sergeant Seymour says its “quite a serious job… involving an allegation of a rape”; he says he’s not suggesting the appellant is responsible for that, but asks why the appellant ran away from him earlier.  Later, Constable Trembath says to the appellant that “something has happened this morning and … doesn’t look good, that’s all”.  The appellant responds that “I reckon I know who it is… Bob… who has been breaking into houses…”.
25. [25]
    At the trial, the circumstances relied upon by the prosecution as establishing, beyond reasonable doubt, that it was the appellant who committed the offences, included:

    1. (a)
       the identification by the complainant of the appellant from the photoboard, and her evidence about that;
    2. (b)
       the evidence from the GPS monitor on the appellant, placing him in the vicinity of the address of the complainant’s unit block, at the time of the offences;
    3. (c)
       that the appellant ran from police when he saw them, ultimately hiding in the public toilets;
    4. (d)
       that when spoken to by the police in the public toilets, the appellant volunteered that another person keeps breaking into houses, before the police told him what they want to speak to him about; and
    5. (e)
       the evidence of the appellant’s five prior convictions for similar offending, and the improbability that his proximity, at the same time and place of the current offences, would be coincidental or innocent.
26. [26]
    For the appellant it is submitted that the verdicts are unreasonable or unsupported having regard to the evidence because:

    1. (a)
       there is no physical evidence that links the appellant to the offence location;
    2. (b)
       whilst the complainant said she saw the offender’s bare legs running out of the flat, she did not see any ankle bracelet or tattoo;
    3. (c)
       when the complainant identified the defendant from the photoboard, she said he appeared to be the man who assaulted her, but she could not be 100 per cent sure;
    4. (d)
       Mr Platt, who saw a man running away, did not recall seeing a tattoo or ankle bracelet on the man;
    5. (e)
       while the complainant described the man as Caucasian, Mr Platt described him as having a Mediterranean appearance or olive skin;
    6. (f)
       although the evidence of prior convictions “might have assisted in the identification of the appellant in the commission of the offences”, their assistance would have been limited due to the lack of a unique modus operandi; and
    7. (g)
       the GPS monitor evidence is consistent with the defendant’s version.
27. [27]
    In my view, having considered the evidence as a whole, it was plainly open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences.  There were, in this case, as submitted by counsel for the respondent, a compelling constellation of circumstantial factors, remembering that the circumstances are to be viewed as a whole, not in a piecemeal fashion.
28. [28]
    Perhaps the best point for the appellant is the fact that neither the complainant, nor Mr Platt, recalled seeing a tattoo on the applicant’s leg, or the ankle bracelet.  But that is not remarkable, in either case, given the circumstances.  The complainant described observing the offender only for a matter of seconds, as he ran from her flat – in that moment, feeling shocked and terrified and just wanting him to get out of her home.  That is to be contrasted with her evidence of observing the offender’s face above her for a longer time – “long enough not to have that face leave my mind … ever since”.  Mr Platt, similarly, saw the running man only briefly, and one might expect that seeing a half-naked man running down the stairs and up another set of stairs was what drew his attention, as opposed to other details.
29. [29]
    The complainant’s evidence, in relation to the photoboard process, was candid – noting that the process was not very scientific, and that she was not 100 per cent sure; although she said she had a “strong vibe” about the picture she selected.  That must also be considered in light of her evidence at the trial, about her observance of the offender’s face.
30. [30]
    Although the appellant submits the GPS data is consistent with his version, the respondent submits that the extracted data presented an impediment to accepting his testimony.  The appellant’s version was that he used to sit on a bench under a tree near the complainant’s unit block, and that he had been there at “probably 20 past 5” for less than two minutes, just long enough to have “rolled a smoke and had a couple of draws on it”, before moving on.  However, the extracted data located the defendant near to the address of the complainant’s unit, from about 5.14 am to 6 am (which was also the subject of an admission).  That was not the only impediment to accepting the appellant’s evidence.  Based upon the transcript of the appellant’s evidence at the trial, I consider the jury is likely to have had considerable difficulty accepting him as a credible or reliable witness.  The verdicts demonstrate that the jury did not accept the appellant’s evidence.
31. [31]
    The similar fact evidence relied upon at the trial would certainly have assisted the jury – albeit as a piece of the circumstantial puzzle – to reach a conclusion that defendant was the offender.
32. [32]
    Considering and weighing all the circumstances established by the evidence, the matters relied upon by the appellant are not such, in my view, as to lead to the conclusion that there was a reasonable inference consistent with innocence left open on the evidence.  I am not persuaded that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of the appellant’s guilt of the offences.
33. [33]
    I would dismiss the appeal against conviction.

Application for leave to appeal against sentence

34. [34]
    The appellant^[6] was 35 at the time of the offending, and almost 38 at the time of his conviction and sentence.  He was on parole at the time of the offences, having been released from custody on 11 October 2018, just six weeks before committing these offences.  The sentences he was then serving were imposed on 9 December 2016, for a significant number of offences, including the two referred to in the admissions,^[7] as well as another offence of burglary by break in the night and sexual assault, committed in circumstances described by the sentencing judge on that occasion as follows:

“…  Arguably the most serious of the burglaries is counts 3 and 4 where the complainant, a 19 year old woman with her three children, had just had a shower and she had come out and walked into her son’s room and felt your hand grab her around the neck.  You shoved her onto a bed.  You then lie – lay on top of her and held her down.  You were trying to pull your tracksuit pants down.  She struggled and screamed and yelled.  She only had a towel on.

Eventually, you lost your grip on her shoulder.  She wriggled free; was able to push you off.  You then ran out down the stairs.  The complainant chased you down the stairs.  She, understandably, to protect herself, armed herself with a knife from the kitchen and then you then ran out of the house.  You were identified by that complainant in a video line-up.  You later when you were spoken to by police made admissions that you had broken into the house and that you were surprised when she walked out of the shower, but denied her version of events saying that she rebounded off your chest and fell on the bed and you did not intend committing any offence of a sexual nature.  You obviously tried to minimise your conduct there.”^[8]

35. [35]
    On that occasion, the appellant was sentenced to seven years’ imprisonment on each of the five counts of burglary by break in the night; concurrent terms of two years’ imprisonment for the three counts of sexual assault; and five years’ imprisonment for two further counts of burglary and stealing.
36. [36]
    The sentencing judge (Chowdhury DCJ) said to the appellant, in his sentencing remarks, that, given his serious criminal history and the seriousness of the offences, his Honour had imposed an “appropriately heavy sentence… to try and make you think again, once you’re released from prison, to commit these offences”.  The appellant had already served just over two and a half years in custody, from 3 May 2014.  Taking into account his guilty pleas, and that time served on remand, the appellant was given a parole eligibility date on the date of sentence, 9 December 2016.^[9]
37. [37]
    He was not actually released on parole until 1 October 2018.  In the short time he was in the community on parole, about six weeks, his compliance was described as “superficial”, and he had disclosed substance abuse throughout that short period.^[10]
38. [38]
    Regrettably, the sentence imposed in 2016 did not appear to make the appellant “think again”.  He was returned to custody on 28 November 2018, the date of the present offences.  As a consequence, he served almost the whole of that seven year sentence.
39. [39]
    The appellant has an appalling criminal history, with multiple convictions in Tasmania, starting when he was aged 15 in 1998, and continuing to early 2014,^[11] as well as in Queensland, with the convictions in December 2016, for offending in 2014.^[12]  That criminal history includes prior convictions for similar offending on the five occasions the subject of the admissions, as well as the additional conviction for burglary and sexual assault just referred to.  But it also includes a significant number of other prior convictions for burglary and stealing, as well as other offences.
40. [40]
    At first instance, counsel for the prosecution submitted that the appropriate starting point for the sentence was in the range of 10 to 12 years, having regard to the appellant’s prior convictions for similar offending, his otherwise lengthy criminal history, and the fact that he had been on parole for only six weeks at the time.  The prosecution submitted that totality was a factor to be taken into account, given the appellant had served a significant period of imprisonment, because of breaching his parole; but balanced against that was the need to protect the community.  Those factors, it was submitted, would bring the appropriate penalty down to 10 years’ imprisonment.
41. [41]
    For the appellant, it was accepted that community protection was a significant factor.  However, it was submitted the appropriate starting point was “somewhere in the vicinity of eight years”, with that to be ameliorated taking into account the seven years he had then spent in custody, less the brief time he was out on parole before committing the present offences.  It was submitted that amelioration might result in a sentence of five or six years’ imprisonment, to be served cumulatively upon the previous term.
42. [42]
    Both counsel informed the court below there was no truly comparable authority.
43. [43]
    The prosecution referred to R v Goodwin; Ex parte Attorney-General (Qld) [2014] QCA 345, in which a 41 year old offender was convicted on his own pleas of guilty of a large number of offences including 13 counts of burglary, by breaking in the night; six counts of sexual assault; 125 counts of recording in breach of privacy (some of which occurred when he had broken into a house and filmed sleeping women); as well as burglary and stealing, making and possessing child exploitation material and indecent treatment of a child under 12.  The six counts of sexual assault are serious examples of the offence, committed by the offender after gaining entry to premises, sometimes on multiple occasions, assaulting the complainants (one of which was aged between 14 and 18 during the period of the offending) variously, by touching them on the buttocks, genitals and breasts, while filming what he was doing.  At first instance, he was sentenced to concurrent terms of eight years’ imprisonment on each of the counts of burglary, with additional concurrent terms of four years’ imprisonment on the sexual assaults, indecent treatment and child exploitation material offences.  He was given a parole eligibility date after serving one third of the overall sentence.  He was described as having a dated criminal history (with no prior convictions for similar offending).  The Attorney-General appealed on the ground of manifest inadequacy.  It appears the argument for the Attorney was principally directed to the manner in which the sexual offences were dealt with; it being submitted that a penalty of five years on at least one of them would have been appropriate, which would have enlivened the sentencing court’s discretion under part 9A of the Penalties and Sentences Act.^[13]  In that regard, though, Mullins J (as her Honour then was, and with whom Fraser JA and Philippides J agreed) expressed the view, referring to Sagiba (discussed below), that “the concurrent sentence of four years’ imprisonment for each count of sexual assault and indecent treatment recognises that each offence was committed by the respondent as an intruder in the complainant’s private home while taking advantage of a sleeping complainant” (at [49]).  Ultimately, the Court held that the effective head sentence of eight years (before any further mitigation) gave recognition to the plea of guilty to the 154 offences; but that the sentencing judge had erred by allowing for further mitigation of that sentence, by fixing a parole date after one-third.  On resentencing, the same head sentences were imposed, with no recommendation for earlier eligibility for parole.  The starting point, absent the pleas of guilty, would plainly have been considerably more than eight years.  The significant number and breadth of offences in this case puts it in a more serious category than the present.
44. [44]
    The prosecution also referred the sentencing judge below to other more serious cases, to give the court an idea “where too far is”.  For example, R v Edwards [2004] QCA 20, in which a 33 year old man, described as having a “bad criminal record”, but not for sexual offending, and who was on parole at the time, was sentenced to 15 years’ imprisonment for three counts of rape, a concurrent term of 10 years for the burglary and various other concurrent terms for offences of sexual assault, committed in circumstances where he broke into the home of a woman, who was pregnant at the time, alone and asleep, and raped and sexually assaulted her multiple times.
45. [45]
    Another example referred to was R v Robinson [2007] QCA 349, in which a sentence of 16 years was imposed for multiple counts of rape, following a trial, to be served concurrently with sentences of 10 years for further counts of rape, 10 years for burglary and lesser terms for deprivation of liberty and stealing.  That offender also had a bad criminal history, including prior convictions for sexual offences.  In that context, Keane JA said, at [26]:

“In cases such as this, the sentence must be such as to afford real protection to the community from the offender's predatory sexual behaviour: there was no remorse and no evident prospect of rehabilitation. Moreover, in this case, there was no occasion to give the appellant the benefit of a discount for the utilitarian value of a plea of guilty.”

46. [46]
    In the present case, taking into account:  the relevant facts of the offending; the appellant’s criminal history, particularly for like offending; the fact that he was on parole at the time and had only been out of custody for six weeks; that the maximum penalty for burglary in the night is life imprisonment; that he had spent 880 days on remand, whilst his parole was suspended; that the sentences would be cumulative; that the parole authorities considered the appellant unsuitable for community-based orders; and that the appellant was, in the sentencing judge’s view, a danger to the community, the appellant was sentenced to eight years imprisonment on the burglary (count 1) and a concurrent six years on the sexual assault (count 2).  The eight year term on count 1 was ordered to be served cumulatively upon the current sentence (which was due to expire about two days after the sentence).^[14]  It might be inferred the sentencing court considered 10 years an appropriate “starting point” and ameliorated the sentence down to eight years (for totality) – although that is not expressly articulated in the remarks.
47. [47]
    Having made the formal orders imposing the sentences just referred to, the sentencing judge then went on to say:

“I have a discretion, pursuant to section 161B(3) of the Penalties and Sentences Act, in respect of count 2 to declare your conviction a conviction for a serious violent offence because the offence of sexual assault is a schedule 1 offence, and I have had reference to R v Kampf [2021] QCA 47, at 49 and following, which is a decision of acting Justice Rafter, with whom Fraser and Mullins JA agreed.

In that regard, in considering my discretion under section 161B(3), I am to consider whether your offending is outside the norm but not in such a way that that obscures the need for me to consider whether factors such as community protection or adequate punishment that warrant consideration of an offence being declared as a serious violent offence.  Ultimately, at [59] of that decision, the Court is required to take into account all of the relevant factors on the sentence and to arrive at a single result which can include such a declaration and where your criminal history can be relevant in a particular case.

In my view, your particular offending here was serious, as I have noted.  It was perpetrated on a woman who was alone at home asleep in her bedroom before 6 am in the morning.  You had a significant history of like offending.  You were on parole.  You had only been on parole for about six weeks, and you were not deterred by the wearing of an ankle bracelet, or curfew conditions, and community protection is important.

So in that regard, I exercise my discretion to declare that your conviction on count 2 to be a conviction of a serious violent offence.”^[15]

48. [48]
    The effect of that declaration is that the appellant will not become eligible for parole until he has served 80 per cent of the six year term of imprisonment (four years and eight months).  He would otherwise have become eligible for parole, in accordance with s 184(2) of the Corrective Services Act 2006 (Qld), after serving half of the eight year term (that is, four years).
49. [49]
    One day of pre-sentence custody (28-29 November 2018) was declared; the 880 days spent in custody on remand, whilst serving out the previous sentence, was expressly declared not to be taken as time already served.
50. [50]
    The appellant seeks to appeal his sentence on the ground that it was manifestly excessive in all of the circumstances.  He contends the excessiveness arises because the sentencing judge erred in the application of the totality principle in the context of the decision to make a declaration that the conviction of count 2 (sexual assault) was a conviction of a serious violent offence.  He submits that declaration has resulted in a crushing sentence.  He also submits that the sentence of eight years for count 1 (burglary in the night) was not appropriately ameliorated, having regard to the totality principle.  He emphasises that, added to his previous sentence of seven years (which commenced on 3 May 2014), the imposition of the present sentence results in an overall period of 15 years.  He has served almost all of the seven years.  The effect of the sentence imposed in the present matter is that he will not be eligible for parole until 19 February 2026, by which time he will have served nearly 11 years and eight months, out of a total of 15 years’ imprisonment.
51. [51]
    In framing his application for leave to appeal in this way, the appellant relies upon an error of the last kind mentioned in House v The King.^[16]  That is, he does not identify any specific error but contends that the result embodied in the sentencing judge’s orders was “unreasonable or plainly unjust”, such as to warrant appellate intervention in the exercise of a judicial discretion.^[17]
52. [52]
    For the reasons set out below, I am persuaded that the sentence imposed at first instance was manifestly excessive, as a consequence of adopting a starting point which was too high having regard to the pattern of sentences for offending of this kind.
53. [53]
    However, my analysis of the reasons of the sentencing judge also reveals what I consider to be specific errors of principle in the exercise of the sentencing discretion.
54. [54]
    The first is that, rather than considering whether to make a “serious violent offence” declaration as part of the integrated process of instinctive synthesis that applies to sentencing, the sentencing judge made the orders imposing the sentences on each of counts 1 and 2, before going on to consider, separately, whether such a declaration should be made.  The discretion conferred by s 161B(3) falls to be exercised as part of, and not separately from, the integrated process directed to the determination of a just sentence.^[18]  As the Court explained in McDougall and Collas, the discretion granted by s 161B(3) “requires the existence of factors which warrant its exercise, but the overall amount of imprisonment to be imposed should be arrived at having regard to the making of any declaration, or not doing so”, and:

“where a discretionary declaration is made, the critical question will be whether the sentence with that declaration is manifestly excessive in the circumstances; accordingly the just sentence which is the result of a balancing exercise may well require that the sentence imposed for that declared serious violent offence be toward the lower end of the otherwise available range of sentences”.^[19]

55. [55]
    Because consideration was given to the exercise of the discretion, separately from determining the sentence to be imposed, in my view the court below failed to give consideration to whether the overall amount of imprisonment imposed was just in all the circumstances; and failed to consider whether the sentence to be imposed ought to be modified, taking into account the consequences of declaration.
56. [56]
    Separately, in my respectful view, the sentencing judge erred by failing to give either side, but particularly the defendant, an opportunity to be heard as to whether the declaration ought to be made.  Counsel for the prosecution had made no submissions about the making of such a declaration;^[20] and the possibility of the declaration being made was not raised by the sentencing judge with either counsel.  Referring again to McDougall and Collas, the Court there observed that:

“the law strongly favours transparency and accessible reasoning, and accordingly sentencing courts should give reasons for making a declaration, and only after giving the defendant an opportunity to be heard on the point.”^[21]

57. [57]
    However, as these matters were not raised by counsel for the appellant, and therefore not addressed in either party’s submissions; and given the view I have formed about the ground of appeal which was pressed – manifest excess – it is unnecessary to address them further.  It is sufficient for present purposes to say that, in my view the sentence imposed below was too heavy, and it is appropriate for this Court to intervene and exercise the sentencing discretion afresh.^[22]
58. [58]
    Section 9 of the Penalties and Sentences Act sets out the only purposes for which sentences may be imposed on an offender.  The first of those is to punish the offender to an extent or in a way that is just in all the circumstances (s 9(1)(a)).  In the present case, one of the particularly relevant circumstances, in consideration of what is just, is the duration of the appellant’s continuing period of incarceration, the combination of the earlier term of seven years’ imprisonment and the cumulative effect of the sentences to be imposed for the present offences.^[23]  As the Court observed in R v Shillingsworth [2002] 1 Qd R 527:

“The function of the sentencing judge in the circumstances is to impose a sentence having regard to the criminality of the current offences.  But in determining the appropriate penalty for that criminality the sentencing judge is required by s 9 of the Penalties and Sentences Act to place the sentence in its proper context, namely that the sentence will be imposed in circumstances where it will be cumulative upon completion of the sentence imposed for the past offences.”^[24]

59. [59]
    This also reflects a circumstance in which the totality principle applies, relevantly, that when a custodial sentence is to be imposed which will be cumulative upon or which will overlap with an existing custodial sentence, the sentencing judge is required to take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.^[25]
60. [60]
    Of the other purposes identified in s 9(1), those which are particularly relevant in the present case, given the appellant’s extensive criminal history, are deterrence (s 9(1)(c)), denunciation (s 9(1)(d)) and, significantly, community protection (s 9(1)(e)).
61. [61]
    Section 9(2) sets out a number of things the sentencing court must have regard to.  Relevantly, the maximum penalty^[26] for the offence of burglary in the night is life imprisonment;^[27]  and the maximum penalty for sexual assault, in the circumstances of the present offending, is 10 years imprisonment.^[28]
62. [62]
    As Henry J observed in R v Gesler [2016] QCA 311 at [25]:

“[This is] serious offending, warranting a significant term of imprisonment. The sexual assault was committed upon a woman asleep in the bedroom of her home by a man who had broken^[29] into her home with the intention of sexually assaulting her. Without in any way gainsaying the seriousness of the sexual assault in its own right, its seriousness was compounded by the violation of the complainant’s sense of security and safety in her own home, so valued at law that the maximum penalty for the applicant’s burglary by break was life imprisonment…”

63. [63]
    The offences were committed in the following circumstances.^[30]  The appellant entered the home of the complainant, in the early hours of the morning (approximately 5.30 or 5.45 am) on 28 November 2018.  It is to be inferred he did so through one of the open windows.  The complainant was both vulnerable and entitled to assume safety – a woman, in her own home, alone and asleep.  Although the complainant did not give evidence of this, the prosecution case was opened^[31] on the basis (and this was reflected in sentencing remarks also^[32]) that she was wearing a nightie but no underwear.  The sexual assault was a serious example of the offence, involving the appellant touching and rubbing the complainant’s vagina.  Although no victim impact statement was tendered,^[33] the sentencing court had the benefit of hearing evidence from the complainant at the trial, in which she described feeling shocked and terrified; and from other witnesses, as to her loud and continued screams and distressed condition.  It is reasonable to infer the incident would have had a significant impact upon her.
64. [64]
    The appellant was, as already mentioned, 35 at the time of the offending, and almost 38 at the time of his conviction and sentence.  In terms of his character and background,^[34] at the sentencing hearing counsel for the appellant said “after a trial very little could be said on behalf of the defendant”.  He referred to the appellant’s age, that he was born in Tasmania, attended school to year eight and has six children (all of whom are in the care of “the department”).  Counsel also conveyed his instructions that the appellant “uses amphetamine socially, [but is] not addicted”.  There is a little more detail about the appellant in the sentencing remarks of Chowdhury DCJ from December 2016,^[35] in which his Honour said:

“I understand your background:  your stepfather was violent.  You were raised by your grandparents.  You lived on a farm.  You left school at grade 9; you became a seasonal worker.  You started a diesel apprenticeship, but didn’t finish it.  However, you did manage to gain a forklift licence and, for a time, you had a firewood business in Tasmania.  You also were involved in the moving business.  You have six children.  I’m told that five of them are, sadly, in care of the authorities here in Queensland.  But your ambition is to have contact with them, and I’m told that your youngest daughter’s been calling you in prison.

It’s a matter for you, sir.  If you want to try and be some sort of decent role model for your children, you’ve got to stop this behaviour.  If you come back for these offences again, the sentences are just going to get higher.  I’ve had regard to the material that your counsel read out from the case file; it seems that you’ve been a model prisoner.  And I’ve had regard, in particular, to the excellent work you’ve been doing on the restoring of antique motor vehicles and equipment which shows you’ve got considerable talent and ability, and it’s about time you resisted whatever urges you have and put your energies into productive things, not criminal activities.”

65. [65]
    Also relevant to his character, but in the circumstances of this case, in so far as the convictions for similar offending are concerned, an aggravating factor,^[36] is the appellant’s appalling criminal history.  The fact that the offences were committed whilst the appellant was on parole, in respect of earlier similar offending, is also an aggravating factor.  But in both respects, the principle of proportionality must still be applied.  In that regard, in R v Aston (No 2) [1991] 1 Qd R 375 at 380-381, Cooper J (with whom Kneipp and Shepherdson JJ agreed) said:

“The majority judgment in Veen [No 2]^[37] makes clear that the principle of proportionality (that the sentence should be proportionate to the gravity of the offence) applies in Australia. Additionally a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender or to act as a deterrent to others who might contemplate committing the same offence (164 CLR at 472).  However, it is permissible to have regard to the protection of society as one of the factors amongst others in the exercise of the sentencing discretion.

Relevantly for the purposes of the present application, the majority in Veen [No. 2] dealt with the use which could be made of an offender’s previous criminal history.  At 477-478 of the report their Honours said:

‘… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.’” [underlining added]

66. [66]
    Given the appellant’s multiple prior convictions for similar offending – entering the homes of strangers, at night, and committing sexual offences – this is a case in which punishment, deterrence and protection of society all indicate that a more severe penalty is warranted.
67. [67]
    Before the Court below, counsel for the prosecution submitted that “the facts in this matter are reasonably unique and there would appear to be no comparable sentence decisions that would assist the court”.^[38]  Counsel for the defendant took the same approach.
68. [68]
    If that were correct, the question of the appropriate penalty would be a difficult one, but the process of sentencing remains the same:  to take into account all the relevant considerations, apply the relevant legal principles, and balance the various different and conflicting features of the case, to reach what the sentencing judge considers, in the exercise of the discretion, is the just sentence for the offence.^[39]
69. [69]
    However, I do not consider that it is correct.
70. [70]
    As mentioned above, the sentencing judge was referred only to Goodwin, Edwards and Robinson.  Even on the basis of those authorities, a starting point in the present case of 10 (let alone 10 to 12) years’ imprisonment – as contended for by the prosecution below – was too high.  That view is only reinforced by the additional decisions referred to below.
71. [71]
    It is relevant that, in 2016, for multiple counts of burglary, by break, in the night and sexual assault, as well as stealing, committed on seven separate occasions and involving multiple complainants, the present appellant was convicted on his own pleas of guilty and sentenced to concurrent terms of seven years’ imprisonment on each of the five counts of burglary, by breaking, in the night; and concurrent terms of two years’ imprisonment on each of three counts of sexual assault.^[40]

72. [72]
    The sentencing judge on that occasion, Chowdhury DCJ, recorded in the sentencing remarks that he had regard to Goodwin, describing that as a “worse case”, and also to R v Sagiba; Ex parte Attorney-General (Qld) [1999] QCA 468 (which was referred to in Goodwin).  In Sagiba, a 19 year old offender, with no previous convictions, was sentenced for a substantial number of offences, involving breaking and entering, or attempted breaking and entering, into separate premises, and on three of these occasions, sexually assaulting the female occupant of the premises.  He continued to offend, even after being granted bail for the first three charges of burglary and sexual assault.  Relevantly, the offending included an occasion on which a woman, who lived with her 12 year old daughter, awoke to find the offender lying on top of her simulating intercourse with a sheet between them.  A few weeks later, he broke into the home where a young woman lived with her husband and two children, and the woman awoke to find the offender “fondling her pubic area on the outside of her clothing”.  He also kissed her on the cheek and neck.  A few days later, the offender returned to the unit of the first complainant, and while she was walking to the toilet, took hold of her, struggled with her and momentarily touched her pubic region and tried to push her legs apart.  At first instance the offender was sentenced to various concurrent terms, the longest of which was four years’ imprisonment.  On appeal by the Attorney-General, the Court observed that the sentence could be said to be “low”, and a sentence of five years might have been “a more satisfactory response”, but it could not be said to be manifestly inadequate.

73. [73]
    Mullins J, in Goodwin, considered that Sagiba supported the sentences of four years’ imprisonment imposed for each of the six counts of sexual assault in Goodwin.  The facts of those sexual assaults, particularly as described in [14] and [15] of Goodwin are arguably more serious than in the present case (or at least, not less serious).
74. [74]
    Within Sagiba, reference is made to another Court of Appeal decision in Green.^[41]  In that case, a sentence of 10 years’ imprisonment, with a recommendation for parole after four years, was regarded as appropriate for a series of offences committed by a 25 year old offender.  The offences included burglary of a convent, armed robbery, and an indecent assault upon a Sister of Mercy, in which the offender is said to have been “armed with a knife with a six to eight inch blade and he engaged in persistent threats and misconduct”.  The indecent assault involved threatened action, as opposed to an actual assault – with demands that the woman remove her pants, and threats to kill her if she did not.  The incident as described was a protracted one in which he “made threats to kill and his conduct would have engendered in the woman a reasonable fear that she would be sexually assaulted”, and it was said that it was only by her resourcefulness and courage that she escaped further harm.  He had 22 previous convictions for housebreaking and convictions for other dishonesty.  The sentence of 10 years was held not to be manifestly excessive in the circumstances.  His pleas of guilty were taken into account by the recommendation for release on parole after four years (which was an option then, prior to the enactment of s 161B).  The use of a weapon, threats to kill, and armed robbery place this in a more serious category.
75. [75]
    A search of the Queensland Sentencing Information Service reveals other decisions that are of assistance.
76. [76]
    For example, the sentencing decision in R v Burnett,^[42] in which a 24 year old defendant, with a criminal history described as “somewhat worrying”, but which did not include prior convictions for burglary or sexual assault, was convicted on his pleas of burglary, attempted burglary and sexual assault.  The offending occurred on one night, and involved the defendant trying, without success, to gain entry into one unit in a motel where a woman was sleeping; and then, at 1.15 am, successfully gaining entry to another unit, also occupied by a sleeping woman, who woke to find the defendant touching her vagina on the outside of her pyjama pants, but under the sheets.  She called out and he ran away.  The offending was in breach of an earlier suspended sentence of six months, which was activated in full, and required to be served cumulatively on another previous term of imprisonment.  As I read the sentencing remarks, the defendant was sentenced to two years imprisonment for the sexual assault and four years for the burglary, by break, in the night, with lesser terms for the other offending.
77. [77]
    A similar example is R v Robinson,^[43] in which a 27 year old defendant was convicted, following a trial, of one count of burglary and one count of sexual assault.  The complainant was asleep, alone, in her bed at home.  The defendant was said to have entered the home through a screen door which may have been left unlocked.  It was the “early hours of the morning”.  The complainant awoke feeling something touch her vagina over her underwear, and saw the defendant sitting on the end of her bed with his hand under the covers touching her.  He was described as having a lengthy criminal history going back to when he was 17, with entries for dishonesty, drugs and property offending – including multiple prior convictions for burglary – but not it seems sexual offending.  He was sentenced to three years’ imprisonment on each count.  The sentencing judge in that case was referred to three authorities: R v Marabe [2000] QCA 183,^[44] R v Gesler [2016] QCA 311 and R v Forrester (2008) 180 A Crim R 510, and said he found Forrester to be of the greatest assistance.
78. [78]
    In R v Gesler [2016] QCA 311, the 48 year old offender was a family friend of the 17 year old complainant.  The complainant was at home, asleep in her bed, and awoke feeling someone was touching her.  The offender was lying in bed beside her, with his hand down the front of her shorts, and was masturbating himself.  He had broken into the house through a faulty back door.  The offender had only a minor criminal history.  His application for leave to appeal against a sentence of four years’ imprisonment for the burglary, with a concurrent term of three years for the sexual assault, was refused.  The sentence was described as “heavy” but not so markedly different as to compel a conclusion of error.
79. [79]
    R v Forrester (2008) 180 A Crim R 510, the applicant offender sought to appeal against a sentence of three years and six months imposed for a range of offences of which he was convicted on his own pleas of guilty, the most serious of which were one count of burglary and stealing, and one count of indecent assault, committed in the following circumstances:

“The more serious offences occurred at about 1 am on 23 November 2006. The applicant broke into the house of the complainant, a 49 year old woman. It appears that the applicant got into the house through a window by removing a flyscreen and opening a sliding glass window. The complainant was asleep in her bedroom alone in the house. The complainant awoke to find the applicant, a stranger, rubbing her vagina.

When the complainant awoke, she jumped and the applicant ran out. The complainant noticed that her mobile telephone and wallet and contents were missing from the bedroom.”^[45]

80. [80]
    The Court of Appeal found that an error had been made in the exercise of the sentencing discretion at first instance because of the way in which uncharged, post-offence conduct (the use by the applicant of the stolen phone to make calls, including to the complainant) was taken into account.  As a result, the sentencing discretion was exercised afresh.  It was noted that the applicant was 20-21 at the time of the offences, and committed all of them whilst on probation and bail.  He had prior convictions for offences involving violence, property damage, drugs and stalking.  He had a history of mental health problems.  In resentencing of the applicant, Fraser JA, giving the reasons of the Court (with which Keane and Holmes JA agreed), referred to the maximum penalty for the offence of indecent assault (10 years imprisonment) and the burglary offence (life imprisonment), before concluding that head sentences of three and a half years for the most serious offences were appropriate, with eligibility for parole after serving 14 months (taking into account his mental health issues, pleas of guilty and the degree of his cooperation with authorities).^[46]
81. [81]
    It is correct to say that in none of these cases did the offender have a criminal history for similar offending comparable to the appellant in this case.  Despite this, it remains relevant to consider sentencing patterns for similar offending.  When considering what a just penalty is in the present case, the principle from Veen is important.  Whilst those prior convictions are a serious aggravating circumstance, justifying a more severe penalty, the penalty to be imposed for the present offending ought not be inflated to such a degree, because of that history, that it is disproportionate to the offending itself.
82. [82]
    Sentencing is not a mathematical exercise; but the discretion is to be exercised with the aim of reasonable consistency.  As Gleeson CJ said in Wong v The Queen (2001) 207 CLR 584 at 591 [6]:

“All discretionary decision-making carries with it the probability of some degree of inconsistency.  But there are limits beyond which such inconsistency itself constitutes a form of injustice.  The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case.  Like cases should be treated in like manner.  The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances.  It should be systematically fair, and that involves, amongst other things, reasonable consistency.”

83. [83]
    Reference to what has been done in other cases aids the sentencing court to achieve the aim of reasonable consistency.^[47]
84. [84]
    Taking into account all the relevant circumstances in this case:  including, that the appellant was a mature man at the time of the offences (35); with a serious criminal history, including for like offending – with convictions as recently as 2016, for similar offending in 2014; that he stands to be sentenced for one count of burglary in the night and one count of sexual assault, involving entering the home of the complainant shortly before 6 am, and touching her on her vagina while she was asleep; that he was convicted following a trial; and that he committed the offences whilst on parole, only six weeks after being released; and taking into account the pattern revealed by the authorities referred to above for sexual burglary offences, in my view the appropriate penalty – before any amelioration to take account of the time already spent in custody, and the cumulative effect of the sentence – is one of eight years’ imprisonment for the burglary, with a concurrent sentence of four years’ for the sexual assault.^[48]
85. [85]
    In reaching this conclusion, I have formed the view that a substantially harsher penalty is called for, on the burglary, than was imposed in, for example, Sagiba (four years, although the Court of Appeal considered five years may have been more appropriate), Gesler (four years) and Forrester (three and a half years), because of the appellant’s persistent history of similar offending.  As an isolated incident, such offending is deserving of a severe penalty – to punish, deter and protect the community.  But when the offence is committed by a person with a history such as the appellant’s, whilst on parole for similar offending, only six weeks after being released, the penalty that is called for is substantially more severe.
86. [86]
    I consider a penalty of 10 years (before amelioration for totality) as submitted by the prosecution below, to be disproportionate and not reasonably consistent with the sentencing pattern revealed by the decisions referred to.  The submission on behalf of the appellant, before the court below, that the starting point is “in the vicinity of eight years” better accords with the principles revealed by and reflected in the decisions referred to.
87. [87]
    The concurrent sentence of four years’ imprisonment on the sexual assault is supported by each of the authorities discussed above.
88. [88]
    There are no mitigating circumstances to be taken into account for the appellant.  As the conviction followed a trial, there is no scope for mitigation on the basis of remorse or acceptance of responsibility;^[49] although of course he is not to be penalised more harshly because he exercised his right to have the charges proven at trial.  It is true that, when called upon, following the jury’s verdict, after saying that he would like his barrister to answer, the appellant said:

“I would like to say one more thing. …  I do show remorse, but, like, it was either here or there with it, so – yeah, while I’ve been in custody I’ve been looking at the whole thing too, so ….”

But I would not regard that as any indication of true remorse, or of acceptance of responsibility.

89. [89]
    The most important factor, requiring some amelioration of the otherwise appropriate sentence, is the duration of the appellant’s continuing period of incarceration, the combination of the earlier term of seven years’ imprisonment and the cumulative effect of the sentence for the present offences.
90. [90]
    In that regard, as already noted, he was sentenced to seven years’ imprisonment in December 2016.  He had, by that time, already served 951 days in custody, from 3 May 2014, which was formally declared under s 159A of the Penalties and Sentences Act (as it then provided).  He was granted parole on 11 October 2018, but returned to custody six weeks later, having been charged with the present offences, on 28 November 2018.  His parole was suspended the following day, and he therefore served all but six weeks of that seven year sentence in custody.
91. [91]
    For the period from 28 November 2018, though, the appellant was also on remand for the present offences – a period of 880 days (about two and a half years) until his conviction and sentence on 30 April 2021.
92. [92]
    As part of the exercise of the sentencing discretion, the requirement to impose a penalty which is just in all the circumstances means some amelioration of the present sentence is required.  This could be done either by a partial declaration of the time served on remand (under s 159A, as amended^[50]) or by reduction of the head sentence.  In the present case, I favour the latter approach, because the primary reason the appellant served out the seven year sentence in full is because he reoffended, by similar offending, just six weeks after being released.^[51]
93. [93]
    The sentence for the sexual assault (count 2) is required to be cumulative; the sentence for burglary (count 1) is not – but if no time is declared, the practical effect is that both sentences are cumulative, because they were imposed on 30 April 2021, just three days before the full time discharge date under the previous sentence.
94. [94]
    Given the view I have formed as to the appropriate penalty for the count of sexual assault (four years), the discretion to make a serious violent offence declaration under s 161B(3) does not arise.^[52]  In any event, as the penalty for the burglary is considerably longer, such a declaration is of no practical benefit.
95. [95]
    As to what level of amelioration is called for, I consider the head sentence for the burglary should be reduced from eight years to seven years’ imprisonment.  I would therefore resentence the appellant to seven years’ imprisonment on count 1 and four years on count 2, but would confirm the declarations made below in relation to pre-sentence custody.

Orders

96. [96]
    For those reasons, I would make the following orders:

1. The appeal against conviction is dismissed.

2. Grant leave to appeal against the sentences imposed, and allow the appeal against sentence.
3. The sentence imposed by the court below is set side, and the appellant is resentenced as follows:

1. (i)
   on count 1 (burglary in the night) – seven years’ imprisonment; and

2. (ii)
   on count 2 (sexual assault) – four years’ imprisonment.

4. Those terms are concurrent with one another, but cumulative upon the term of seven years imposed in 2016.
5. Pursuant to s 159A(1) of the Penalties and Sentences Act, declare that the one day spent in presentence custody from 28 to 29 November 2018 is taken to be imprisonment already served under the sentences imposed.
6. For the purpose of s 159A(3A) of the Penalties and Sentences Act, declare that the time the appellant was held in custody from 28 November 2018 to 24 April 2021, a total of 880 days, is not to be taken to be imprisonment already served under the sentence.

97. [97]
    SOFRONOFF P:  I agree with the reasons of the Chief Justice and with the orders proposed by her Honour.

98. [98]
    MARTIN SJA:  I agree with the Chief Justice.