Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Simpson v R [2012] NSWCCA 246 Hearing dates: 24 July 2012 Decision date: 23 November 2012 Before: Beazley JA at [1]; Hall J at [93]; S G Campbell J at [94] Decision: 1. Grant leave to appeal against sentence; 2. Appeal allowed in part; 3. Quash the sentence imposed by the trial judge in respect of count 3; 4. Re-sentence the appellant as follows: (i) As to the offence charged under count 1, being an offence contrary to the Crimes Act 1900, s 61O(2), a fixed term of 6 months imprisonment to date from 25 May 2011 and to expire on 24 November 2011; (ii) As to the offence charged under count 2, being an offence contrary to the Crimes Act 1900, s 61M(2), a fixed term of 9 months to date from 25 August 2011 and to expire on 24 May 2012; (iii) As to the offence charged under count 3, being an offence contrary to the Crimes Act 1900, s 66A, a non-parole period of 3 years to commence on 25 October 2011 and to expire on 24 October 2014 and a balance of term of 16 months to commence on 25 October 2014 and to expire on 24 February 2016; 5. The first date upon which the applicant is eligible to be released is 24 October 2014; 6. The total effective sentence is 4 years and 9 months imprisonment and the total effective non-parole period is 3 years and 5 months. Catchwords: CRIMINAL LAW - Sexual offences - Application for leave to appeal against sentence - Offences committed between 1997 and 1998 - Applicable sentencing standards at time offences committed - Consideration of comparable cases - Whether the sentences imposed by the sentencing judge were outside the proper sentencing range - Whether the trial judge relied on cases that represented a true range of sentences imposed at the time of the offences - Sentence to reflect objective criminality involved and personal circumstances of offender - Crimes Act 1900, ss 61O(2), 61M(2), 66A. CRIMINAL LAW - Sexual offences - Sentencing - Sentence imposed by trial judge manifestly excessive - Relevant factors - Special circumstances - Totality principle - Crimes Act, s 66A. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Crimes (Sentencing Procedure) Amendment Act 2007 Crimes Act 1900 Criminal Appeal Act 1912 Sentencing Act 1989 Cases Cited: Mill v The Queen [1988] HCA 70; 166 CLR 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v R [1998] HCA 57; 194 CLR 610 PH v R [2009] NSWCCA 161 PWB v R [2011] NSWCCA 84 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Baxter (New South Wales Court of Criminal Appeal, unreported, 26 May 1994) R v Boyd (1995) 81 A Crim R 260 R v Brooker (New South Wales Court of Criminal Appeal, unreported, 21 February 1996) R v Davis [1999] NSWCCA 15 R v Dodd (1991) 57 A Crim R 349 R v ELW (New South Wales Court of Criminal Appeal, unreported, 17 December 1993) R v H (1994) 74 A Crim R 41 R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1 R v James (1985) 14 A Crim R 364 R v KBM [2004] NSWCCA 123 R v King [2009] NSWCCA 117 R v Maher [2000] NSWCCA 147 R v MJR [2002] NSWCCA 129 R v Moore (1995) 77 A Crim R 577 R v Morrow [1999] NSWCCA 64 R v O'Connor (1986) 23 A Crim R 50 R v O'Donnell (New South Wales Court of Criminal Appeal, unreported, 1 July 1994) R v Page (New South Wales Court of Criminal Appeal, unreported, 25 February 1994) R v Rapley [1999] NSWCCA 302 R v Shore (1992) 66 A Crim R 37 Regina v Moon [2000] NSWCCA 534; 117 A Crim R 497 Regina v Watson [1999] NSWCCA 227 Veen v The Queen [1979] HCA 7; 143 CLR 458 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: David Simpson (Applicant) Regina (Respondent) Representation: Counsel: G Bashir (Applicant) H Wilson (Respondent) Solicitors: Legal Aid New South Wales (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/149113 Publication restriction: No Decision under appeal Citation: R v David John Simpson Date of Decision: 2011-05-25 00:00:00 Before: Wells DCJ File Number(s): 2010/149113 Judgment 1BEAZLEY JA: On 8 March 2011, the applicant entered pleas of guilty to the following charges: Count 1: aggravated act of indecency contrary to the Crimes Act 1900, s 61O(2); Count 2: aggravated indecent assault contrary to the Crimes Act 1900, s 61M(2); Count 3: sexual intercourse with a person under 10 years of age contrary to the Crimes Act 1900, s 66A. 2The offences occurred between 1 May 1997 and 30 January 1998. The applicant was sentenced in the District Court at Wollongong on 25 November 2011. 3The offence charged under count 1 carried a maximum penalty of 7 years imprisonment. The applicant was sentenced in respect of that offence to a fixed term of 6 months imprisonment to date from 25 May 2011 and expiring on 24 November 2011. 4The offence charged under count 2 carried a maximum penalty of 10 years imprisonment. The applicant was sentenced in respect of that offence to a fixed term of 9 months to date from 25 August 2011 and expiring on 24 May 2012. 5The offence charged under count 3 carried a maximum penalty of 20 years imprisonment. The applicant was sentenced in respect of that offence to a term of 6 years imprisonment to date from 25 February 2012 and expiring on 24 February 2018. A non-parole period of 3 years was specified. 6The applicant was thus sentenced to a total effective sentence of imprisonment of 6 years and 9 months and a total effective non-parole period of 3 years and 9 months. In imposing those sentences, her Honour allowed a 25 per cent discount for early pleas of guilty. 7The applicant seeks leave to appeal against sentence on the following grounds: (1)The sentencing judge erred in her assessment of the objective seriousness and gravity of the offences by failing to have proper regard to the principles of sentencing and the proper range of sentencing at the time of each of the offences. (2)The sentences were manifestly excessive having regard to the principles of sentencing and the proper range of sentences imposed at the time that the offences were committed. (3)The sentencing judge erred in failing to take into account delay and the applicant's rehabilitation to mitigate the sentences imposed. 8The matter proceeded before the trial judge on the basis of a statement of agreed facts. The offences occurred when the complainant was aged between 8 and 9 years, between 1 May 1997 and 30 January 1998. The applicant had known the complainant all her life. Her family had lived next door to the applicant and the two families were close. The complainant spent a great deal of time at the applicant's house. The complainant regarded the applicant's wife as a second mother and the sentencing judge accepted that both the complainant and the applicant would describe the applicant as a father figure to the complainant. 9In late 1996, the complainant's family changed addresses. However, the complainant continued to visit the applicant's home frequently and would often sleep over on Saturday nights. Initially, she would do so as she would attend church on a Sunday morning with the applicant's wife. She lost interest in going to church but nonetheless continued to stay at the applicant's home on Saturday night and would remain with the applicant on Sunday morning whilst the applicant's wife went to church. 10The circumstances of the first count, being an aggravated act of indecency contrary to s 61O(2), were as follows. On a Sunday morning in about May 1997, the complainant was at the applicant's home. When she woke up, she saw the applicant watching a video depicting explicit sexual acts. Whilst the video was playing, the applicant was seated and playing with his penis in her presence. The complainant said to him "I don't like it" and walked away. The complainant recalled that there were a number of other occasions when the same conduct occurred. 11The conduct giving rise to the second count, being an act of aggravated indecent assault contrary to s 61M(2), occurred not long after the complainant's ninth birthday. On that occasion, the complainant was in the rear garden of the applicant's home when the applicant "grabbed" her hand and placed it between his legs on top of his trousers and rubbed her hand over his unexposed erect penis. 12As to the third count, being the offence of sexual intercourse with a person under 10 years of age contrary to s 66A, the complainant woke up one Sunday morning when she and the applicant were the only persons at home. The applicant was naked from the waist down. He guided her head towards his penis and placed his penis inside her mouth, causing her to "gag". 13The conduct charged in both the second and third counts occurred on 30 December 1997. The conduct charged in the third count was not an isolated incident. 14Not long after the conduct constituting the third count, the complainant told the applicant that she did not want him to touch her any more. There was no further offending conduct. 15The complainant continued to visit and stay at the applicant's home until she was approximately 18 years old. She first reported these matters to the police and to her family on 11 January 2010. 16In two telephone calls between the complainant and the applicant in June 2010, both of which were recorded pursuant to a surveillance device warrant, the applicant made a number of admissions relating to the offences. He made further limited admissions to the police on 15 June 2010. Later, in an electronically recorded interview, the applicant adopted some of the admissions made to the complainant in the telephone conversations. Sentencing judge's remarks on sentence 17At the outset of her remarks on sentence, the sentencing judge noted that the penalties for these offences were already high at the time that the applicant had engaged in his offending conduct and had since been increased substantially. She noted, however, that the applicant was to be sentenced having regard to the range of penalties imposed for these offences in 1997 and 1998 when the offences were committed. 18Her Honour stated that the offences were serious both for victims of such offending conduct and for the community at large. Her Honour also noted the offences were of the type that were difficult to detect and prove. She stated that such offences attracted the principles relating to general and personal deterrence and the protection of the community. 19Her Honour expressed the view that the harm to the victim was a significant factor in considering the appropriate penalty to apply. She noted that the complainant in this case had been severely affected by the applicant's conduct, which had impacted upon her ability to work, study and sleep, had adversely affected her relationships and friendships. The complainant had also developed eating disorders and experienced feelings of guilt and worthlessness, flashbacks and panic attacks. 20In dealing with the objective seriousness of the offences, her Honour noted that the offences were not isolated and were part of an escalating pattern of offending over a period of about six months. Her Honour considered the offending was essentially opportunistic, but that there was some limited planning. 21Her Honour dealt separately with the objective seriousness of the offence of sexual intercourse, observing that the type of penetration was a relevant factor, but of itself did not indicate the seriousness of the particular offence: see R v AJP [2004] NSWCCA 434; 150 A Crim R 575; R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1; R v King [2009] NSWCCA 117. Her Honour noted that there was no actual bodily harm to the complainant and no overt force or coercion. Nor were there any threats. Rather, the applicant had relied upon his authority over the complainant and compliance was achieved through her acceptance of his authority. 22Her Honour found that there was a breach of trust in that the applicant and the complainant had a very close relationship. Her Honour noted that the applicant's conduct had no immediately apparent effect on the complainant and she had continued to stay at the applicant's house for a period of years after the offending ceased. She considered that this had some, although not much, relevance to the applicant's limited understanding of the damage that he was doing. 23Her Honour next dealt with the applicant's subjective circumstances. At the time of sentencing, the applicant was 70 years of age. He had a steady work history from the time he was 16 years of age. He had previous offences of a minor nature, including two of a sexual nature and some minor stealing offences. All the offences were very old and her Honour considered that they did not bear upon the matters in respect of which he was to be sentenced. Her Honour noted, however, that the fact of these offences did not assist the applicant in comparison to an offender with no convictions. 24Her Honour had regard to a report from the Sex and the Violent Offender Therapeutic Program which had assessed the applicant as falling in the low to moderate risk category of re-offending relevant to other male sexual offenders. That report also revealed that the applicant had a history of sexual abuse as a child. 25Her Honour ignored references in the pre-sentence report to a history of "inappropriate and sexually deviant behaviour towards his immediate and extended family as well as towards the general community", as there was no evidence to support the allegations. Her Honour also disregarded that part of the pre-sentence report, which indicated Dr Nielssen's opinion, that the applicant had a low risk of recidivism, needed to be qualified because of the applicant's prior history of sexual offending. Her Honour had already rejected those earlier offences as being relevant to the sentencing task except to the extent indicated at [23] above. 26Her Honour then considered the applicant's personal circumstances. As an adult, the applicant had been gainfully employed since he left school at the age of 16 and for the duration of his adult life. He had established and stable friendships and was known in his immediate community as a person who donated his time assisting local residents, including the young, the elderly and those who had suffered hardships. 27The applicant married at the age of 24 and has four children. Three are aged in their 40s and the youngest in her mid-30s. He has maintained a relationship with three of these children but the relationship with the youngest child appears to have broken down. His wife is a devoutly religious person Their sexual relationship ceased at about the time his wife became more devout. He told the psychiatrist, Dr Nielssen, that he had become sexually frustrated as a result. 28Both Dr Nielssen and the psychologist, Ms Sinclair, expressed the opinion that the applicant's early exposure to repeated inappropriate and abusive sexual experiences would have influenced his attitude to sex and relationships with women. Ms Sinclair reported that the applicant claimed not to remember the alleged incidents with the complainant. She attributed this to being a dissociative response and said that this was a familiar coping strategy for the applicant. Her Honour observed that the applicant had exhibited the same response when giving evidence in court. For example, in relation to the offence of sexual intercourse, the respondent gave evidence that he was not even sure that it happened. He added "if she said it happened I'll go along with it". Likewise, when it was suggested to the applicant that this "intimate behaviour" had occurred over "a period of quite a few months", he responded, "[s]o she claims". 29Her Honour commented upon the evidence later in her remarks, first noting that the psychiatric and psychological reports recorded that the applicant lacked insight into the damage the offences had caused the complainant. Her Honour remarked that this was also apparent from his sworn evidence. Her Honour considered that the applicant's sense of remorse was "equivocal". Although the applicant had, in various reports and in evidence, expressed some "limited empathy" with the victim, he also questioned her motives and behaviour, such as to suggest that she was in some way responsible for his offending behaviour. His statement to the probation and parole officer, "I never did anything she did not want to do", was emblematic of this attitude. Her Honour accepted, however, that the pleas of guilty were indicative of some limited remorse, although they were entered in the face of a strong Crown case. 30In dealing with the applicant's prospects of rehabilitation, her Honour again noted that in the report from the Sexual and Violent Offenders Therapeutic Program the applicant had been assessed as at a "low to moderate risk" of re-offending. Her Honour referred to the absence of similar offences committed against young children and observed the applicant had the support of friends and that his life had been one of full-time employment and positive engagement in the community. Accordingly, her Honour considered that the applicant was "unlikely or less likely than most offenders to re-offend". 31Her Honour was aware of the necessity to sentence the applicant in accordance with the penalties imposed for these offences at the time they were committed. In this regard, her Honour had regard to the following decisions: R v H (1994) 74 A Crim R 41; R v Moore (1995) 77 A Crim R 577; R v Boyd (1995) 81 A Crim R 260; R v Brooker (New South Wales Court of Criminal Appeal, unreported, 21 February 1996); R v Davis [1999] NSWCCA 15; R v Maher [2000] NSWCCA 147. 32Her Honour considered these cases assisted in formulating the appropriate penalties to be imposed upon the applicant. In referring to them, her Honour was aware the sentences imposed in other cases were of assistance to the extent that they suggested an appropriate range, but not the sentence to be imposed. Applicant's submissions Grounds 1 and 2 33In her helpful submissions, counsel for the applicant outlined the legislative history relating to the sentences prescribed for the offences concerned. The purpose of these submissions was to emphasise the significantly different sentencing principles now in force as compared to the time when the offences were committed and the care that was needed to ensure that present sentencing principles did not creep into the considerations relevant to sentencing had the applicant been brought to account at about the time of the offending conduct. 34At the time that these offences were committed, sentences were governed by the Sentencing Act 1989. That Act was concerned to promote "truth in sentencing" and, in particular, to provide that offenders who had served the minimum period of imprisonment were to be considered for release on parole for the residue of their sentence. 35The applicant submitted that at the time of his offending conduct, the underlying philosophy of sentencing was that imprisonment was a last resort: see R v James (1985) 14 A Crim R 364; R v O'Connor (1986) 23 A Crim R 50. That philosophy was replicated in the Crimes (Sentencing Procedure) Act 1999, s 5(1). However, that Act also introduced other significant sentencing requirements including a statement of the objects of sentencing and provisions specifying the aggravating and mitigating circumstances that were to be taken into account in sentencing: s 21A. 36Further, at the time these offences were committed, standard non-parole periods had not been introduced. The statutory regime for standard non-parole periods was not introduced until February 2003. This was important as it was recognised, at least until the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, that the effect of standard non-parole periods had been to increase sentences generally. The standard non-parole period introduced for an offence contrary to s 66A was 15 years: see the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, Sch 2[1], Sch 1[4]. The same Act increased the maximum penalty for an offence under s 66A from 20 years to 25 years. A standard non-parole period of 5 years was introduced for an offence under s 61M(2). The standard non-parole period was later increased to 8 years: the Crimes (Sentencing Procedure) Amendment Act 2007, Sch 1[10]. The maximum penalties for offences under s 61M(2) and s 61O(2) remained the same. 37Counsel for the applicant contended that although her Honour expressed her awareness of the need to sentence in accordance with the principles that applied at the time that the offences were committed, her Honour's reasons were based upon legal principles and notions developed subsequent to the occurrence of the offending conduct. 38Two such matters were identified. First, counsel submitted that her Honour's comment that the type of penetration could not by itself indicate the seriousness of the offence and the authorities she relied on to support that proposition, represented principles developed later than the time at which the offences occurred. Counsel submitted that the relevant law was as stated in R v O'Donnell (New South Wales Court of Criminal Appeal, unreported, 1 July 1994), that "[f]ellatio ... is clearly less criminal than, say, anal or vaginal penetration". 39Secondly, counsel submitted that in using the language of "mid-range of objective seriousness" in respect of the offence under s 66A, her Honour had engaged in the type of reasoning that, until the decision of the High Court in Muldrock represented the approach in New South Wales to sentencing where a standard non-parole period was prescribed. 40Counsel submitted that this approach was reflected in sentencing statistics for 1994 where 65 per cent of offenders received a full-time custodial sentence where the sexual intercourse involved was fellatio, whereas the total for all offenders sentenced for an offence contrary to s 66A was 83 per cent. Counsel also referred to the sentencing statistics in respect of the other two offences. In the case of an offence contrary to s 61M(2), only 25 per cent of offenders received a custodial sentence. The medium full term was 3 years and the medium minimum term was 1 year. 41Further, in R v Baxter (New South Wales Court of Criminal Appeal, unreported, 26 May 1994), the Court declined to lay down a requirement that a custodial sentence should ordinarily be imposed in relation to a charge of an act of indecency. 42Counsel next referred to the Judicial Commission statistics for the period 2000-2002. Those statistics revealed that for offences contrary to s 66A, 83 per cent of offenders received a full-time custodial sentence. The sentences ranged from 12 months to 15 years, with a median term of 5 years. A median term of 5 years also applied to consecutive sentences. In relation to non-consecutive sentences, the median term of imprisonment was 48 months with a non-parole period of 2 years. The statistics further revealed that less than 15 per cent of the offenders were over the age of 60 years at the time of sentencing and of that group of offenders, over half of the offenders received full-time custodial sentences. 43Counsel for the applicant submitted that the cases relied upon by her Honour for the purposes of determining the appropriate sentence to be imposed: see above at [31], should not have been used, as they did not represent a true range of sentences imposed at the relevant time. Further, the facts in those cases demonstrated criminal conduct of much greater gravity than was involved in the applicant's offending conduct. Counsel referred to a series of cases as providing a more balanced and appropriate overview of the range of sentences that were being imposed in respect of similar offending at the time of the applicant's offending conduct. An examination of those cases follows. Comparable case studies (a) Cases relied upon by the trial judge 44There was no dispute that the applicant is entitled to be sentenced in accordance with sentencing standards current at the time of his offending: see R v MJR [2002] NSWCCA 129; PWB v R [2011] NSWCCA 84. Her Honour acknowledged the applicability of that principle. However, the applicant challenged the cases relied upon by her Honour in determining the appropriate penalties to be imposed on the basis that those cases were not sufficiently comparable to the factual circumstances involved in the applicant's offending. Counsel for the applicant advanced a number of authorities, which she contended more appropriately reflected the range of sentences applicable at the time of his offending conduct. 45The authorities relied upon by her Honour are identified above at [31]. A short analysis of those cases follows. 46In Davis, the offender was convicted in April 1997, after a trial by jury, of three separate offences, namely, one offence contrary to the Crimes Act, s 66A being an act of sexual intercourse with a child under 10 years of age; one offence contrary to s 61M(2) being an indecent assault on a child under 10 years of age; and one offence contrary to s 61O(2) being the incitement of a child under the age of 10 years to commit an act of indecency. 47The offences were committed in 1996 against the same child and were part of conduct committed on the one occasion. The s 66A offence involved anal and vaginal penetration of a child aged 9 years. The offender, a friend of the victim's stepfather, had been in a position of responsibility looking after the victim. The s 61M(2) offence involved masturbation in front of the victim whilst watching a pornographic film. 48The trial judge imposed a minimum term of 6 years and an additional term of 2 years in respect of the s 66A offence, which carried a maximum penalty of 20 years imprisonment. As to the s 61M(2) and s 61O offences, his Honour imposed fixed terms of 2 years to be served concurrently. 49It is not apparent from the judgment of the Court of Criminal Appeal whether the latter two offences were to be served concurrently with the s 66A offence or only with each other. The Court's concern in the judgment was with the s 66A offence. It considered a number of comparable cases so as to determine whether the sentence imposed was excessive. 50Although the Court considered that the sentence imposed was at the top of the range, it declined to reduce the sentence imposed. In coming to that conclusion, Wood CJ at CL, at [61], described the offence with which he was dealing as having involved an "abuse of trust" in respect of a child of tender years. His Honour also noted that it was a "continuing event without any element of premeditation". 51In Maher, the offender was sentenced to a fixed term of three years imprisonment for an offence under the Crimes Act, s 61I which involved vaginal penetration and forcible rape of the victim. The maximum penalty for the offence was 14 years imprisonment. The offender was also sentenced to a minimum term of 5 years and an additional term of 3 years, cumulative on the first sentence, in respect of an offence against the Crimes Act, s 61J which also involved forcible rape and vaginal penetration. The appeal against sentence was dismissed by the Court. 52In H, the offender pleaded guilty to 10 sexual offences committed on his daughter and one sexual offence against another young girl. The offender's daughter was 12 months old at the time of the first offence, and 12 years old at the time of the last offence. Two of the charges involved sexual intercourse with a person between the ages of 10 and 16 and under the authority of the accused in contravention of s 66C(2). The maximum penalty for the offence was 10 years. The two offences involved penile penetration of the victim's vagina when the victim was over the age of 10. The other eight offences against the daughter, and the one offence against the daughter's friend, consisted of various acts of indecency in contravention of ss 76 and 61E. The maximum penalty for these offences ranged from 2 to 6 years respectively. 53The offender was sentenced to 11 years and 6 months imprisonment with an additional term of 5 years. The appeal against sentence was allowed on the basis of a detailed comparison with sentences imposed in similar cases. He was re-sentenced to a term of imprisonment of 8 years with an additional term of 3 years. 54In Boyd, the offender was convicted, after a trial by jury, of having sexual intercourse with a child of the age of 5 years contrary to s 66A. The offence occurred sometime between 1990 to 1991 and consisted of anal intercourse for a period of approximately 25 minutes. The victim was the offender's son. The offender was sentenced to a minimum term of 3 years imprisonment and an additional term of 2 years. 55In Brooker, the offender pleaded guilty in relation to the offence of having sexual intercourse with a child under the age of 10 years. The offence carried a maximum penalty of 20 years imprisonment. The victim was 4 years of age at the time of the offence, which occurred in 1994. The offence involved the offender digitally penetrating the victim causing serious physical injury. The offender had a lengthy criminal history. The offender was sentenced by the trial judge to a minimum term of 3 years and an additional term of 2 years. The sentence imposed by the sentencing judge was deemed manifestly inadequate by the Court of Criminal Appeal. 56The offender was re-sentenced on appeal to a minimum term of imprisonment of 4 years and 6 months with an additional term of 2 years and 6 months. Gleeson CJ (Ireland J agreeing) considered that some allowance was required to be given for the plea of guilty, albeit that the Crown case against the offender was overwhelming. The Chief Justice also took into account the principle of "double jeopardy" which, at that time, operated in an offender's favour in respect of a successful Crown appeal. There was also evidence that the offender suffered from a physical ailment and his condition was such that he would suffer from incarceration to a greater degree than would ordinarily be the case. Meagher JA dissented. His Honour would have imposed close to the maximum sentence, given the savagery of the attack, the offender's criminal history and his propensity to commit this sort of offence. 57In Moore, the offender was sentenced in respect of three counts of indecent assault in circumstances of aggravation: Crimes Act, s 61M(1); attempted sexual intercourse without consent in circumstances of aggravation: s 61J(1) and sexual intercourse in circumstances of aggravation: s 61J(1). Four further offences were taken into account when the offender was being sentenced for the third offence. The offences occurred in the period 1991 to 1992. The three counts occurred in circumstances where the offender had been placed on recognizance for sexual interference with the same victim, his stepdaughter, and in respect of whom he was in a position of authority. 58The trial judge had imposed concurrent sentences, the longest of which involved a minimum sentence of 9 years and an additional term of 3 years in respect of the s 61J(1) (aggravated sexual intercourse) offence. On appeal, this was held to be manifestly excessive having regard to sentencing trends at that time. The offender was re-sentenced for the s 61J(1) offence to a minimum term of 6 years and an additional term of 3 years imprisonment. The sentence in respect of the attempted sexual intercourse offence was reduced from 8 years to 4 years. The three sentences were imposed with concurrent effect notwithstanding that they occurred on separate occasions. That approach would now be seen to be erroneous given the principles stated in Pearce v R [1998] HCA 57; 194 CLR 610. (b) Cases relied upon by the applicant on the appeal 59The applicant's written submissions contended that the following cases depicted a more balanced and appropriate sentencing range. 60In R v ELW (New South Wales Court of Criminal Appeal, unreported, 17 December 1993), the offender was sentenced to a minimum term of 3 years imprisonment with an additional term of 1 year in respect of four offences. Those offences were an offence against s 66A and three offences of indecent assault. The relevant acts involved touching the victim's vagina and the offender placing his penis into the victim's mouth. The victim was the offender's six year old granddaughter. This sentence was held by this Court to be within "the range of proper sentencing discretion". 61In R v Page (New South Wales Court of Criminal Appeal, unreported, 25 February 1994), the offender was sentenced in relation to six counts relating to the first victim and one count in relation to the second victim, who was the first victim's sister. In respect of the first victim, there were three counts of indecent assault on a person under the age of 16 years: s 61E(1A); two counts of sexual intercourse with a person under the age of 16 years: s 66A; and one count of indecency towards a person under the age of 16 years and under his authority. In respect of the second victim, the offender was sentenced on one count of an act of indecency upon a person under the age of 16. 62In relation to the first victim, the offences took place in the period 1988 to 1990, when the victim was between the ages of 8 and 9. The offences of sexual intercourse included acts of cunnilingus and the offences of indecent assault included touching the victim on the outside of the vagina at various times, committed in circumstances where the victim requested that he not commit the acts, and an act of masturbation in front of the victim leading to ejaculation. The sentence imposed in respect of all the offences was a minimum term of 3 years imprisonment and an additional term of 1 year. 63The offender was a close family friend of the victims' family and the offences constituted an abuse of trust. The Court dismissed the offender's appeal against sentence. McInerney J (Grove and Sully JJ agreeing) stated, at 3: "In my view, having regard to the age and background of the applicant and the likelihood of him not transgressing again, an additional term to allow for his rehabilitation in excess of 1 year was not warranted. It is my view that the sentences imposed on the applicant, having regard to the objective seriousness of the offences, were well within the range of his Honour's sentencing discretion ..." 64In R v Morrow [1999] NSWCCA 64, the offender pleaded guilty to one count of sexual intercourse with a person 9 years of age and not guilty to three counts of sexual intercourse with a person between the ages of 10 and 16 years, namely 10 years, and one count of aggravated indecent assault. The plea of guilty was accepted by the Crown in full discharge of the indictment. The maximum penalty for the offence was 20 years imprisonment. The court deferred passing sentence and ordered the offender to be released on a recognizance under the Crimes Act, s 558 requiring good behaviour for 5 years and to appear for sentence if and when called upon at any time within the period. 65The offender was intellectually disabled and suffered from serious depression. The offence involved penile penetration of the victim. The Court of Criminal Appeal upheld the non-custodial sentence imposed by the sentencing judge. 66In R v Rapley [1999] NSWCCA 302, the offender pleaded guilty to five charges involving the sexual abuse of his 8 year old granddaughter. There were two counts of sexual intercourse with a child under 10 years of age contrary to s 66A, carrying a maximum penalty of 20 years imprisonment. There were three counts of aggravated indecent assault against a person under 10 years of age contrary to s 61M(2), carrying a maximum penalty of 10 years imprisonment. The sentencing judge deferred passing sentence and ordered the offender's release upon his entering into a recognizance to be of good behaviour for a period of 5 years. The Crown appealed against the sentence on the basis that it was manifestly inadequate and did not reflect the objective criminality of the offences. 67The victim's father had caught the offender in the process of the sexual conduct and the offender had admitted guilt and confessed to additional offences against the victim. The Court held that the sentencing discretion had miscarried in light of the objective seriousness of the offences. The offender was re-sentenced to minimum terms of imprisonment of 18 months to be served concurrently, with additional terms of 6 months for the offences under s 66A, and fixed terms of 12 months for the offences under s 61M(2) to be served concurrently with each other and concurrently with the sentences under s 66A. 68In R v KBM [2004] NSWCCA 123, the offender pleaded guilty to sexual intercourse with a person under the age of 10 contrary to s 66A. The victim was 9 years old and the offender was close to his 14th birthday at the time of the offence. The offence involved oral intercourse, in the form of fellatio. The victim and offender attended the same school. The offender was from an underprivileged background, of Aboriginal descent and had also been the victim of alleged sexual assault. The offender was initially sentenced to 3 years imprisonment with a non-parole period of 12 months. He was re-sentenced by the Court to a non-parole period of 4 months and 29 days to be released on the date of judgment. 69In my opinion not all these cases were relevantly comparable. The personal circumstances of the offender in each of KBM and Morrow were such as not to render those cases of any utility when seeking to gauge the appropriate sentencing range for the offences committed here. Nor is Rapley of assistance, as it involved a Crown appeal. Consideration 70Each occasion of criminal offending is individual and unique in its circumstances. The court's task is to impose a sentence that reflects the objective criminality involved and which appropriately has regard to the personal circumstances of the offender. Regard must also be had to the other objectives of sentencing. The purposes of sentencing are now statutorily encoded in the Crimes (Sentencing Procedure) Act, s 3A which identifies the purposes for which a court may impose a sentence as follows: "(a)to ensure that the offender is adequately punished for the offence, (b)to prevent crime by deterring the offender and other persons from committing similar offences, (c)to protect the community from the offender, (d)to promote the rehabilitation of the offender, (e)to make the offender accountable for his or her actions, (f)to denounce the conduct of the offender ..." 71The offending in the present case was of sexual offences that involved a serious abuse of trust. General deterrence is of particular importance in respect of such criminal offending. All individuals are entitled to feel safe from abuse, including sexual abuse, whether they be in their own home, the homes of friends, or on the street. In particular, young persons of tender years are entitled to be safe and to feel protected when in the company of persons who stand in a position of trust in relation to them. In the circumstances of the present case, specific deterrence was also of importance, given the applicant's inability to recognise or understand the full nature of his wrongdoing. 72Although the applicant identified specific aspects of her Honour's sentencing approach as indicative of error, the principal complaint was that the sentences imposed were outside a proper sentencing range, having regard to sentences imposed in cases that were sufficiently comparable to constitute an appropriate guide to the sentence that ought to have been imposed in the present case. 73The Crown submitted that the applicant had not demonstrated any error of principle in her Honour's approach to the sentence in this case. In terms of the correct approach to sentencing in respect of stale offences, the Crown relied upon the principles stated by Howie J in Regina v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [67]-[71]. In summary and omitting the cases cited, the relevant principles include the following propositions. The court must sentence having regard to the maximum penalty for the offence, the maximum penalty being intended for the worst category of case. If there is an available pattern of sentencing discernible from the decided cases, that pattern will indicate an appropriate range of sentence for the particular offending involved in the case before the court. The nature of the criminal conduct proscribed and the maximum penalty applicable for the offence in respect of which sentences are being imposed are of focal importance. In particular, his Honour stated, at [70]: "The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence." 74I have omitted from this summary the references Howie J made to the requirement of the court to consider where in the range of seriousness the particular conduct fell. It is possible the language used by his Honour involved an approach to sentencing that has now been rejected by the High Court in Muldrock. 75In my opinion, it has not been demonstrated that her Honour erred, as a matter of principle, in her approach to the sentencing task. In particular, her Honour was aware that the applicant fell to be sentenced having regard to the range of sentences that would have been imposed had the applicant been sentenced at about the time of his offending conduct. Through her own researches and without any assistance on this point from counsel for the applicant, her Honour considered a number of cases which, as she said: "What can be gleaned from considering comparable cases is that they might only suggest an appropriate range and not the appropriate sentence. Nevertheless, consideration of those cases has assisted in formulating the appropriate penalty for the matters in this particular case." There was no error in this approach nor, having regard to the sentences imposed in those cases, with the sentence imposed by her Honour. 76Her Honour also expressly referred to the maximum sentence for each offence, thus demonstrating that she understood that the applicant was to be sentenced having regard to the objective seriousness of each offence and the requirement that the sentence imposed was to be proportional to the criminality involved in the offence actually committed: see Veen v The Queen [1979] HCA 7; 143 CLR 458; R v Dodd (1991) 57 A Crim R 349. 77On the issue of sentencing patterns it has been observed that with 'old' offences there are manifest difficulties in discovering past sentencing patterns and determining if differences are material: MJR at [61] per Mason P. However, the principle established by this Court in R v Shore (1992) 66 A Crim R 37 is that a sentencing judge should have regard to the range of sentences imposed at the time of the commission of the offence or offences in question. 78In Moon, Whealy J applied Shore and additionally referred to the decision of this Court in Regina v Watson [1999] NSWCCA 227 emphasising the difficulty of applying the principle. His Honour observed, at [23]: "Although the principle stated in Shore is clear, its application in any particular appeal is often a difficult matter. First, there is a need to have a clear picture as to the range of penalties imposed at the earlier point of time ... Secondly, the perceived difference between the range of sentences disclosed at the earlier point of time and the sentence imposed by the sentencing judge may reveal a discrepancy. Nevertheless it may be one of not so high a kind that the appellate court should interfere (Shore p 43)." 79The principle generally stated is that a sentencing court attempts from information available to it to fashion the type of sentence that might have been imposed at a time proximate to the date of offending: PH v R [2009] NSWCCA 161 at [27] per Howie J (Grove and R A Hulme JJ agreeing). His Honour in that case also observed, at [28]: "This manner in proceeding to sentence for 'old offences' applies both to the head sentence and the non-parole period ..." 80However, on the appeal, for the first time in the applicant's case, the Court was referred to a number of additional authorities. The additional authorities provide a wider spectrum of factual circumstances and sentences imposed than those considered by her Honour. I have concluded that ELW and Page assist in establishing a relevant pattern of sentencing from which a trend may be discerned and as such they are instructive in determining the appropriate sentence in this case. 81Two responses of the Crown should be mentioned at this point. First, the Crown submitted that the applicant's counsel, who was not the counsel representing the applicant on the present application for leave to appeal, did not rely upon this argument in the court below. Nor did she assist the trial judge by referring to the cases upon which it is now sought to rely. In this regard, the Crown referred to the remarks of Johnson J (McClellan CJ at CL agreeing) in Zreika v R [2012] NSWCCA 44, at [81], that an appeal against sentence involves this Court's review of a discretionary judgment where error has been identified. Adopting the approach taken by the Victorian Court of Appeal, a sentence appeal is not: "... the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea ... The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13], [18]; Bayram v R [2012] VSCA 6 at [28]-[29]." 82His Honour continued, at [82]: "This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance." 83Secondly, the Crown further submitted that, in any event, even if error was identified, no other sentence was warranted in law: Criminal Appeal Act 1912, s 6(3). 84The question for this Court is whether, in accordance with the principles discussed, appealable error has been demonstrated. As I have said, no error in her Honour's sentencing approach has been identified. The only question is whether, by a consideration of the wider range of cases now made available to the Court, it has been demonstrated that the sentence imposed by her Honour was manifestly excessive, having regard to the range of sentences that were imposed for the offences at the time of the offending conduct. 85Having considered the cases, I have reached the conclusion that her Honour imposed a total sentence for the s 66A offence, which was outside the range of sentences imposed for offences committed at the time of the applicant's offending. In coming to the conclusion that the total sentence imposed for that offence was excessive, I am not satisfied that the non-parole period set by her Honour was excessive. To the extent that the cases to which the applicant referred are of assistance, the non-parole period was the same as the sentences imposed in ELW and Page. The non-parole period was not out of range even when regard is had to Rapley, which, as I have said, involved a Crown appeal. Each of those cases involved pleas of guilty. The manifestly excessive aspect of her Honour's sentence, in my opinion, lay only in setting the additional term at 3 years and it follows that some other sentence is warranted in law. Accordingly, it is appropriate for this Court to re-sentence. 86In approaching the re-sentencing task in respect of the s 66A offence, I adopt the various findings made by the trial judge as to conduct involved, the impact upon the victim, the serious breach of trust involved and the applicant's continuing inability to understand the nature and seriousness of his criminal conduct. I have already referred to the need for specific deterrence in that regard and to this being an offence for which general deterrence is an important consideration in the sentencing process. This Court should make a finding of special circumstances, as did her Honour. 87I also agree with her Honour's assessment as to the applicant's prospects of rehabilitation. The applicant has not established that her Honour erred in failing to take into account the applicant's rehabilitation as a mitigating factor. I have referred to her Honour's remarks in that regard, including her reference to the applicant's subsequent non-offending and his positive employment history and community involvement. Nonetheless, she was entitled to take into account the assessment made by the Sexual and Violent Offenders Therapeutic Program that the applicant had a low to moderate risk of re-offending. The applicant's inability to understand the serious and criminal aspect of his behaviour was relevant to this assessment. 88In my opinion, the sentence that ought to be imposed in respect of the s 66A offence is a non-parole period of 3 years and a balance of term of 16 months. 89Insofar as the other two offences are concerned, I am of the opinion that they have not been shown to be excessive. Nor do I consider there was any error in her Honour having partially accumulated the sentences, as the applicant contended. That was required by the application of the principles stated by the High Court in Pearce, at [45]-[47], per McHugh, Hayne and Callinan JJ. 90Counsel for the applicant submitted that at the time of the applicant's offending, Pearce had not been decided. She submitted that the relevant principle to be applied was that stated by the High Court in Mill v The Queen [1988] HCA 70; 166 CLR 59. There, the Court, at 63, had stated: "... an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred." 91The Court in Pearce stated the correct approach to sentencing. Her Honour was required to sentence in accordance with those principles. In any event, it is at least possible that the applicant would have been sentenced after Pearce was decided. Accordingly, to the extent that the cases relied upon all involved concurrent sentences, I consider that this Court is not bound to impose concurrent sentences. However, in re-sentencing the applicant, it will be appropriate to consider the total sentence imposed to determine whether the accumulation ordered by her Honour should be adjusted so as to impose a sentence which in its totality is appropriate, having regard to the range of sentences that applied at the time of the applicant's offending and so as to take account of the finding of special circumstances. This has resulted in a slight adjustment of the period of accumulation from that ordered by her Honour. 92Taking those factors into account, I would propose the following orders: 1.Grant leave to appeal against sentence; 2.Appeal allowed in part; 3.Quash the sentence imposed by the trial judge in respect of count 3; 4.Re-sentence the appellant as follows: (i)As to the offence charged under count 1, being an offence contrary to the Crimes Act 1900, s 61O(2), a fixed term of 6 months imprisonment to date from 25 May 2011 and to expire on 24 November 2011; (ii)As to the offence charged under count 2, being an offence contrary to the Crimes Act 1900, s 61M(2), a fixed term of 9 months to date from 25 August 2011 and to expire on 24 May 2012; (iii)As to the offence charged under count 3, being an offence contrary to the Crimes Act 1900, s 66A, a non-parole period of 3 years to commence on 25 October 2011 and to expire on 24 October 2014 and an additional term of 16 months to commence on 25 October 2014 and to expire on 24 February 2016; 5.The first date upon which the applicant is eligible to be released is 24 October 2014; 6.The total effective sentence is 4 years and 9 months imprisonment and the total effective non-parole period is 3 years and 5 months. 93HALL J: I agree with Beazley JA. 94S G CAMPBELL J: I agree with Beazley JA. ********** 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: 23 November 2012