Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v NJK [2011] NSWCCA 151 Hearing dates: 8 June 2011 Decision date: 28 June 2011 Before: HODGSON JA at 1 HOEBEN J at 2 GROVE AJ at 61 Decision: Crown appeal dismissed. Catchwords: CRIMINAL LAW - Crown appeal against sentence - aggravated indecent assault on child under the age of 10 years - plea of guilty - suspended sentence - whether sentencing judge had adequate regard to standard non-parole period as a guidepost - determination of objective seriousness of offence - benefit to victim if offender not given custodial sentence - whether sentence manifestly inadequate - unusual circumstances surrounding offence - appeal dismissed. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: Hili v The Queen [2010] HCA 45; (2010) 85 ALJR Mulato v Regina [2006] NSWCCA 282 R v Edwards (1996) 90 A Crim R 510 R v Osenkowski (1983) 30 SASR 212 at 212-213; (1982) 5 A Crim R 394 at 394 R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168 Regina v Zamagias [2002] NSWCCA 17 Category: Principal judgment Parties: Regina - Applicant NJK - Respondent Representation: Counsel J Pickering SC - Applicant Crown Ms S Walsh - Respondent Solicitors S Kavanagh, Solicitors for Public Prosecutions - Applicant Crown Viney Williams Lawyers - Respondent File Number(s): 2010/151251 Publication restriction: Yes Decision under appeal Date of Decision: 2011-03-02 00:00:00 Before: McLoughlin DCJ File Number(s): 2010/151251 Judgment 1HODGSON JA: I agree with Hoeben J. 2HOEBEN J: Offences and sentence On 21 October 2010 the respondent pleaded guilty to the following offences: (i) One count of aggravated indecent assault of a child under the age of 10 years contrary to s61M(2) of the Crimes Act 1900 which has a maximum penalty of imprisonment for 10 years with a standard non-parole period of 8 years. (ii) One count of use child under the age of 14 for pornographic purposes contrary to s91G(1)(a) of the Crimes Act 1900 which carries a maximum penalty of imprisonment for 14 years. 3The matter came before McLoughlin DCJ at the Port Macquarie District Court for sentencing on 2 March 2011. In respect of each offence his Honour imposed a sentence of imprisonment for 22 months and 15 days which pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 was wholly suspended. 4The Director of Public Prosecutions has appealed from these sentences pursuant to s5B of the Criminal Appeal Act 1912 on the following grounds: Ground 1 - His Honour failed to have adequate regard to the standard non-parole period as a guidepost for the aggravated indecent assault offence. Ground 1B - His Honour was in error in finding that the offence of aggravated indecent assault was in the midway point between the bottom and the middle of the scale of objective serious. Ground 2 - His Honour erred in attaching so much importance to the payment of the mortgage of the complainant's house in determining to suspend the sentence. Ground 3 - His Honour erred in suspending the sentences. Ground 4 - The sentences were manifestly inadequate. Factual background 5The victim at the time of these offences was 5 years of age and lived with her natural mother and the respondent. The victim's mother and the respondent were married, but the respondent was not her father. The victim had a twin sister A and a younger brother J, who was the respondent's natural son. The victim considered the respondent to be her father. The victim was developmentally delayed. 6On the day of the offences, the respondent was in the master bedroom of the family home playing with a new camera and taking a photo of a lamp. The victim came into the bedroom wearing her school uniform and no underwear because she had wet herself. This was apparently not uncommon. The victim jumped onto the bed and made a pose for the respondent to take a photo of her. 7The respondent took a photo of the victim with her bottom exposed. He then leant over the bed and with his fingers, spread her bottom cheeks apart exposing a full view of her anus and vagina. He then took another photo. 8Shortly thereafter, the respondent deleted the two photographs from his camera. 9The respondent's wife, the mother of the victim, was a freelance photographer. In June 2010 she inadvertently lost some photographs from a client which were held on a laptop computer. In order to retrieve the lost work photographs, she and the respondent purchased a recovery program. 10In the course of retrieving those work photographs, the victim's mother came across the two photographs of the victim. She attempted to contact the respondent, but was unable to do so until he returned from work at about 2am on 17 June. When she confronted the respondent, he made a full admission to her and later that morning, attended the Port Macquarie Police Station and made admissions to police regarding the taking of the photographs of his stepdaughter. 11It was common ground between the parties that the respondent had never transferred the photographs to the computer. They were, however, present on the memory card of the camera and appeared on the computer when the recovery program was implemented. Remarks on sentence 12Having reviewed the facts, his Honour assessed the objective seriousness of the offences. His Honour noted that the offences involved serious breaches of trust in that the victim was the respondent's stepdaughter and was developmentally delayed. His Honour took into account as an aggravating factor the age of the victim. His Honour said: "If it were not for the age of the victim, her cognitive impairment and her relationship with the offender bringing with it a breach of trust because of her vulnerability, I would find the indecent assault at the bottom of any scale so constructed for such offences. However with the aggravating features to which I have referred I am of the view that both offences are in the midway point between the bottom and the middle of any scale so constructed." (ROS 3.8) 13His Honour went on to note that the standard non-parole period was a guide to which reference had to be made when sentencing. Because of their seriousness, he concluded that both offences must carry gaol sentences. 14His Honour then considered the subjective case for the respondent. He was aged 25 at the time of the offences and 26 at the time of sentencing. He had no criminal convictions. Medical reports indicated that the respondent's IQ was low and in the order of 50-60. He had an older sibling and had been raised in a supporting and loving environment. At the time of sentencing he was separated from the mother of the victim to whom he had been married for 3 years. He was also separated from his 2 year old son and the twin stepdaughters, one of whom was the victim. As a result of his conduct the marriage appeared to be over. 15The respondent was residing with his parents and was working as a tradesman/boiler maker. At the time of sentencing, the respondent was continuing to make the mortgage payments on the marital home. 16The applicant gave evidence in the sentencing proceedings. He told the Court that he had no sexual attraction to children and could not explain his behaviour. He expressed his remorse and was deeply ashamed of his actions and the consequences they had brought on the family. He admitted taking the photographs but said that he had deleted them immediately from the digital camera. 17Since he committed the offences, the respondent had been attending counselling from a mental health worker. He had also been referred to a psychiatrist. A Corrective Services psychologist had conducted tests of the respondent and concluded that he was in the low risk category relative to other male sex offenders. 18The Corrective Services psychologist said that if the respondent received a custodial sentence he would be referred for participation in one of the treatment programs for sex offenders but that there was a wait list for access to low intensity treatment in custody and he might not be able to get access to or complete treatment before his release. 19After his arrest, the respondent consulted a mental health social worker whom he saw on 16 occasions between 24 June and 20 October 2010. This mental health worker took a history of learning difficulties at school, the need for speech training and a bottling up of the respondent's feelings and need to communicate. The respondent presented with issues of stress, trauma and grief because of separation from his family. 20The mental health worker said that the respondent was totally committed to the counselling process, had acknowledged the serious aspects of the incident and had accepted full responsibility for it. 21The respondent commenced seeing a forensic psychologist in December 2010. This psychologist, who gave evidence in the sentence proceedings, recorded that the respondent was separated from his wife and children who were living in the family home. He recorded that the respondent was freely paying $500 per week towards the mortgage on the home and was also paying off a personal loan which had been used for renovations to the house. The psychologist estimated the respondent's intellectual capacity to be in the low average range. 22The psychologist reached the following conclusions concerning the respondent: "It is my opinion that Mr K's presentation of a stable personality without noticeable psychopathological traits would suggest that he has the potential to receive benefit from a sexual offenders' treatment program and will not be confounded by any other negative personality issues. ... Mr K described his offending behaviour as he did in admissions to the police. Mr K said he deleted the photographs in the camera very soon after he had taken them because he said he had come to his senses in realising what he had done. He emphasised that he was so abhorred by what he had done that he deleted the photos from the SD card and the camera as soon as he realised his act. He did not download them to his computer. He did not attempt to minimise or deny his behaviour. He expressed profound emotional remorse for the offending behaviour on several occasions. He frequently welled up in tears that I took to be genuine. He was not able to explain how he came to commit the offence. He said his motivation for treatment was driven by his need to find the reason why he committed the offence. He said he had not contemplated any other similar offensive acts since that incident." 23The psychologist found that the respondent was not aware of the risk factors which led to his offence. He was struggling with understanding the reason why he sexually offended. He was aware that because he had offended, there remained the risk of re-offending. He told the psychologist about problems with stress, which he described as constantly striving to work hard. The psychologist was given a history of working intensely on nightshifts and taking on as much overtime as was offered. The respondent said that as a result of the offence he had become more aware of the stress that he was suffering from at the time. 24The psychologist gave the following summary of his conclusions: "Continuing efforts to be financially responsible for his family. Consistently strong work ethic. Sufficiently intelligent to benefit from treatment and understand severity. Stable personality without psychopathological traits. Sense of conscience with any outside influence by his instant deletion of the material. No intention to sell, distribute or profit from the actions and a genuine profound remorse expressed and repeated." The psychologist found that he had a low risk of re-offending. 25The respondent saw another psychologist, who was accredited by the NSW Child Sex Offender Counsellor Accreditation Scheme (CSOCAS). That psychologist administered the MCMI-2 test which generates an adult personality profile. The results revealed the respondent to be hesitant and unsure of himself and to be experiencing quite high levels of anxiety. Psychological stressors were identified as the breakdown of the marriage, not seeing his children and pending court proceedings. In relation to the offence, the respondent denied any arousal or other heightened sexual feelings before taking the photos. 26This psychologist set out a detailed treatment program. He recommended "the treatment be provided by a counsellor with the necessary knowledge and skill to work with people who sexually offend against children". 27His Honour then returned to an analysis of the offence. His Honour accepted that there was no premeditation and that it occurred when the victim wandered into the bedroom. His Honour noted that as well as expressing remorse, the respondent had demonstrated genuine contrition by immediately reporting the matter to the police and entering a plea of guilty. His Honour also noted that through his work and continued payments, the respondent was benefiting the victim so that she was able to remain in her home without upheaval of a physical or psychological kind which can often accompany changes of houses. His Honour took into account the willingness which the respondent had demonstrated to not only seek treatment in the past, but to continue undergoing that treatment in the future. His Honour noted that there was no evidence before him of any psychological damage to the victim. 28His Honour concluded that the principle of general deterrence would only be satisfied by a sentence of imprisonment. He considered that specific deterrence was not applicable, given the opinions of the psychologists and the treatment which the respondent was undertaking. In relation to the sentence, his Honour said: "Conviction on trial would in the view of this Court result in a sentence of some 2 years and 6 months imprisonment for each offence. In coming to that view I have regard to the goalpost set forth by the standard non-parole period. I have taken into account his plea of guilty as further evidence of contrition and as having public utility. I reduce that sentence by 25 percent in relation to both matters to 22 months imprisonment. As both offences were committed in tandem, as it were, one contributing to the other, in my view the sentences should be served concurrently. The Crown concedes that I should find special circumstances because of the rehabilitation that has been obtained, the first time in custody and the expected further rehabilitation that would occur and I find special circumstances." 29His Honour then considered whether it was appropriate in all the circumstances to suspend the sentence. His Honour said: "General deterrence requires a fulltime custody sentence. This must be tempered, in my view, with the continual security within the family which has been provided by the home for which the offender has paid the mortgage and the loan. The offender has the loss of family, the loss of love, the loss of emotional well being and if sentenced to fulltime custody, the success which has been obtained with his attendance on courses and the benefits to the family of his continuing to pay the mortgage. The offender it is understood to be with limited IQ, obtained maximum employment opportunities earning a considerable wage for which most of it or a large portion of it is spent upon the victim, his wife and children in the maintenance of the family home. In my view on probability as I have said, that would be lost should he be sent to fulltime custody. While that is not the sole determining factor it is a matter which I have taken into account with all of the other matters to which I have referred." Appeal Ground 1 - His Honour failed to have adequate regard to the standard non-parole period as a guidepost for the aggravated indecent assault offence. Ground 1B - His Honour was in error in finding that the offence of aggravated indecent assault was in the midway point between the bottom and the middle of the scale of objective seriousness. 30These two grounds are dealt with together since they essentially raise the same point. 31The Crown put forward the following argument. It submitted that in relation to the aggravated indecent assault charge, the maximum penalty was imprisonment for 10 years with a standard non-parole period of 8 years. The Crown accepted that as a result of the respondent's plea of guilty, the standard non-parole period did not apply. Nevertheless, in accordance with R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168 the standard non-parole period had to be taken into account as a "reference point". The Crown submitted that the discrepancy between the sentence actually passed and the standard non-parole period was such that his Honour could not have followed the guidance in Way. 32The Crown submitted that an explanation for his Honour's failure to properly consider the standard non-parole period was to be found in his assessment of the objective seriousness of the aggravated indecent assault offence. The Crown submitted that his Honour's start point for assessing the objective seriousness of the indecent assault offence at the bottom of the scale before taking into account aggravating features was patently wrong. While conceding that the assessment of objective seriousness in these circumstances was a discretionary finding, the Crown submitted that such an assessment paid so little regard to denunciation and general deterrence as to reveal error. 33The Crown submitted that if the start point were wrong, it had affected his Honour's subsequent reasoning process to such an extent that error had occurred and this Court ought intervene to re-sentence. 34The Crown submissions refer specifically to the aggravated indecent assault offence. I do not understand the Crown to be suggesting that insofar as the s91G(1)(a) offence was concerned, his Honour incorrectly characterised this as being at the bottom level of seriousness for offences of that kind. 35As the Crown accepted, the assessment of the objective seriousness of an offence involves a discretionary exercise on the part of the sentencing judge. In Mulato v Regina [2006] NSWCCA 282 Spigelman CJ, with whom Simpson J agreed, said: " 30 Although expressed in terms which found their origin in the standard non-parole period statutory regime, which remained pertinent at least as a guidepost, her Honour was, in any event, required to assess the objective seriousness of the offence. As Simpson J has pointed out the difficult, indeed hypothetical, task of determining whether a particular offence falls in "the middle of the range of objective seriousness" differs little from the longstanding requirement to evaluate the objective seriousness of any offence which, as Her Honour has said, "should be approached intuitively and based upon the general experience of courts". (See R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [14](iii).) 31 Furthermore, as Simpson J went on to say, relying on Way at [85]-[86]: "[14] (iv) Circumstances that affect the evaluation of the objective seriousness of an offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence, (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness." ... 37 Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably held to be so characterized." 36His Honour fully analysed the factual background to the offence. He set this out in considerable detail in his judgment. The Crown sought to challenge his Honour's initial assessment of the level of seriousness of the offence (before taking into account the aggravating features) by putting to the Court what it regarded as less serious offences than that which was before the Court. By way of example, the Crown referred to the touching of a young person on her clothing, but not on her skin. I do not find such an approach to be particularly helpful. What is important is the analysis of the actual facts of this case. 37The essential feature of this offence was the touching of the victim on the buttocks. There was no touching of the genital area and in particular no touching of the vagina. Although the Crown's written submissions were to the contrary, this was conceded by the Crown in oral submissions. This is an important point of distinction between this offence and more serious offences of a similar kind where touching occurs. Given the fundamentally discretionary nature of this exercise, I have reached a conclusion similar to that of Spigelman CJ in Mulato , i.e. it was open to his Honour to assess the objective seriousness of the offence in the way in which he did, although I do so with some hesitation. 38If his Honour's initial assessment of objective seriousness was open to him, I do not understand the Crown to challenge the three aggravating features which his Honour took into account and the way in which his Honour used those aggravating features, i.e. the age of the victim, his relationship with her and the fact that she was developmentally delayed. It follows, therefore, that his Honour's final assessment of objective seriousness as being midway between the bottom and the middle level of seriousness for offences of that kind was also open to him. 39That finding as to objective seriousness is important when determining the use which was to be made of the standard non-parole period in the aggravated indecent assault offence. 40It is not without significance that the standard non-parole period for this offence appears on its face to be out of step with the maximum penalty which the offence carries. The maximum penalty is imprisonment for 10 years, yet the standard non-parole period is 8 years. This surprisingly high ratio of 80 percent is not explained in the legislation and is different to the ratio between standard non-parole periods and maximum sentences in the other offences set out in the table to s54A of the Crimes (Sentencing Procedure) Act 1999. In most offences on that table the ratio is less than 50 percent. Nevertheless, an 8 years non-parole period has been prescribed by the legislature and courts must give effect to it. 41When considering this ground of appeal it is useful to set out what was actually said in Way about how standard non-parole periods are to be used in situations where they do not directly apply. The Court said: "122 In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount. ... 130 The approach which we favour is consistent with the disclosed legislative intention that Division 1A of Part 4 was to operate, not by way of any mandate or removal of sentencing discretion, but rather as providing a guidepost, or benchmark, against which the case at hand could be compared. That is not to say that it should be merely acknowledged in the passing. It takes its place alongside guideline judgments, and the prescribed maximum sentence for the relevant offence, which are to be taken into account in the same way that sentencing judges are required to take into account the provisions of s 21A, 22, 22A and 23, when exercising their sentencing discretion. 131 What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act." 42The submission which the Crown puts forward, with its emphasis on the standard non-parole period, is very close to the approach which was disapproved in [131] of Way . What a sentencing judge has to do is to give appropriate weight to the standard non-parole period, together with the other factors which are identified. 43That is what the sentencing judge did in this case. He was clearly conscious of the standard non-parole period and specifically referred to it on two occasions. This was not merely a cursory acknowledgment on his part, but it was clearly a matter to which he gave serious attention. His Honour also took into account the maximum penalty, the aggravating and mitigating factors and the respondent's very strong subjective case. He took into account the unusual features of this case, i.e. a brief period of aberrant behaviour with no apparent adverse effect on the victim. 44I am not persuaded that his Honour failed to have adequate regard to the standard non-parole period in this matter. These grounds of appeal have not been made out. Ground 2 - His Honour erred in attaching so much importance to the payment of the mortgage of the complainant's house in determining to suspend the sentence. 45The Crown submitted that it was clear from his Honour's remarks that he placed excessive weight on this consideration. The Crown submitted that this approach involved error since the hardship was not of the "exceptional" kind specified in such cases as R v Edwards (1996) 90 A Crim R 510. The Crown submitted that Edwards (Gleeson CJ, James and Ireland JJ) was authority for the proposition that only in highly exceptional circumstances should a court be influenced by the hardship that an otherwise justified prison term would cause to third parties. 46The Crown submission does not accurately record what his Honour did. His Honour had already determined the term of the sentence and was considering whether the sentence thus determined should be suspended. His Honour was balancing the requirement that the sentence give effect to the principle of general deterrence against the benefits for the family, in particular the victim, the extra curial losses which the respondent had suffered and the detrimental effect incarceration would have on his rehabilitation. As well as those specific matters, his Honour took into account "all the other matters to which I have referred" (see [29] hereof). 47I read that concluding remark to encompass all of the other considerations to which his Honour had specifically referred in his remarks on sentence up to that point. These included: (i) The very minimal risk of re-offending. (ii) The absence of criminal history. (iii) The respondent never having been in custody. (iv) The rehabilitation which had taken place and would continue in the future. (v) The spontaneous nature of the offence. (vi) The respondent having a stable personality without psychopathological traits. (vii) There being no evidence of any form of sexual deviancy or tendency towards paedophilia or perversion. (viii) The absence of major mental illness and substance abuse problems. (ix) The respondent's willingness to comply with the orders which prevented contact with his family and his respect for the supervisory authority of the Probation and Parole Service. (x) The apparent absence of harm to the victim. (xi) The genuine contrition of the respondent and his full co-operation with the police. These were all matters relevant to his Honour's decision. 48Whilst the principle in Edwards is clear, the circumstances of this case are somewhat different. The distinguishing feature in this case is that the victim was one of the persons who would benefit from the respondent not being incarcerated and therefore being able to work. That additional factor enabled his Honour to properly take into account as a relevant consideration the benefits to the family, including the victim, of him being able to continue to work. 49This ground of appeal has not been made out. Ground 3 - His Honour erred in suspending the sentences. Ground 4 - The sentences were manifestly inadequate. 50These grounds of appeal raise the same issues. 51The Crown submitted that a sentence of 22 months, which was suspended, did not adequately reflect the objective seriousness of the offence. In support of that submission, the Crown emphasised the nature of the offence and the three aggravating features to which reference has already been made. By reference to those matters and general deterrence, the Crown submitted that a suspended sentence was outside the range of sentences which was open to his Honour within the proper exercise of his discretion. 52In Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195 the plurality restated the principles relevant to grounds of appeal of this kind: "58 The single ground of appeal advanced by the Director in each appeal to the Court of Criminal Appeal was that the sentences imposed at first instance were manifestly inadequate. That is, the error which the Director asserted that the sentencing judge had made was of the last kind mentioned in House v The King . By asserting manifest inadequacy, the Director alleged that the result embodied in the sentencing judge's orders was "unreasonable or plainly unjust". The Director did not allege that any specific error could be identified (as would be the case if the sentencing judge were said to have acted upon wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistaken the facts or not taken into account some material considerations). Rather, the Director asserted that it was to be inferred from the result that there was "a failure properly to exercise the discretion which the law reposes in the court of first instance". 59 As was said in Dinsdale v The Queen "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong , appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong , "[i]ntervention 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". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error". 53As the sentencing judge pointed out, the facts of this case were unusual. The offending while significant, was of a relatively low level, was spontaneous and to the extent possible, was remedied soon after the offence occurred, i.e. the two photographs were removed from the camera. When the offending was discovered, the respondent co-operated fully with the authorities and took genuine and extensive steps to rehabilitate himself and continues to do so. He has lost his marriage, his family and his home. There was minimal chance of re-offending, particularly if his rehabilitation was allowed to continue. 54These were matters which his Honour took into account when assessing the objective level of seriousness of the offence and when determining the length of the sentence and how it would be served. In doing so, his Honour complied fully with the steps outlined by Howie J (with whom Hodgson JA and Levine J agreed) in Regina v Zamagias [2002] NSWCCA 17. 55In that case Howie J said: "28 Once the term of the sentence has been determined the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, see for example s 77 of the Act with respect to home detention. But the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic at 250B. ... 31 As s 5 of the Act recognises, the imposition of a sentence of imprisonment is a grave step for a court to take whether or not the offender's liberty is immediately removed or curtailed. Section 5(2) requires a court, which imposes a sentence of imprisonment of 6 months or less, to indicate to the offender, and to record, its reasons for imposing such a sentence including the reasons why no penalty other than imprisonment is appropriate. These restrictions upon the power of a court to impose a sentence of imprisonment apply even if the sentence is suspended. A sentencing court, therefore, must recognise that a sentence of imprisonment can be a significant and effective punishment even where the execution of that sentence is suspended: JCE at [25], R v Foster at [36] where reference is made to statements to that effect in other jurisdictions. That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered as more severe than a community service order even though it may appear on its face to be less punitive. 32 Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate." 56As already indicated, the findings by his Honour as to objective seriousness, as to the factual circumstances of the offence, as to rehabilitation and as to the subjective circumstances of the respondent were open to him. Those findings were such as to allow his Honour to conclude that notwithstanding the seriousness of the offence, a sentence of 22 months imprisonment was permissible. This sentence was, on his Honour's findings, within the range, albeit at the bottom of the range. This was a case in which the frequently quoted observations of King CJ in R v Osenkowski (1983) 30 SASR 212 at 212-213; (1982) 5 A Crim R 394 at 394 could legitimately be applied. 57There King CJ said: "It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience." 58In the circumstances identified by his Honour, particularly the dedicated pursuit of rehabilitation and the respondent's subjective circumstances, his decision to suspend the sentence was not outside of the range of a proper exercise of his discretion. While in respect of this offence general deterrence remained of significance, in the particular circumstances of the case, that consideration did not require an actual period in custody. 59These grounds of appeal have not been made out. 60The order which I propose is that the appeal be dismissed. 61GROVE AJ: I have had the opportunity to read the judgment of Hoeben J in draft form and I gratefully adopt, without need for repetition, his Honour's comprehensive analysis of the issues in this appeal. 62It is a solemn duty of this Court to respond particularly in the interests of the protection of the very vulnerable. I would affirm what I said (McColl JA and Howie J agreeing) in Henry v R [2009] NSWCCA 69: " This Court has always stressed that those who prey upon the innocence of young children will be met with retribution and personal deterrence as well as signalling to others who may be minded to so offend that condign punishment will follow such depredations." 63I have hesitated in coming to a conclusion about what I consider should be the outcome of this appeal especially having regard to the extent of departure from the guidance to be derived from the will of Parliament as expressed in the Standard Non Parole Period. 64There are however some very unusual aspects in this case which powerfully point to mitigation of penalty being appropriate. Hoeben J has conveniently collated the considerations which were available to the sentencing Judge for that purpose. 65Exceptional to the all too common experience of the Court where a child has been the subject of sexual interference, there was no multiplicity of acts but a single isolated instance. The actual contact was in a very low category of seriousness. Realisation of wrongdoing was virtually immediate as demonstrated by the deletion of pictures from the camera although technology does not, as events showed, permit "deletion" always to convey its ordinary meaning. 66When the recovered pictures re-emerged, the admission by the respondent of what he had done was promptly forthcoming as was his reporting of himself to police. 67Added to the other mitigating factors scheduled by Hoeben J, I regard the foregoing as principal considerations leading to a conclusion that the learned sentencing Judge's discretion did not miscarry. 68I agree that the Crown appeal should be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2011