Church v The State of Western Australia

[2007] WASCA 215

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CHURCH -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 215

CORAM:   WHEELER JA

PULLIN JA
BUSS JA

HEARD:   7 AUGUST 2007

DELIVERED          :   17 OCTOBER 2007

FILE NO/S:   CACR 8 of 2007

BETWEEN:   GLENN WILLIAM CHURCH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'SULLIVAN DCJ

File No  :IND 248 of 2005

Catchwords:

Criminal law - Single act of digital penetration and two counts of indecent dealing - one brief incident - Girl over the age of 16 but under 18 - Complainant under the authority of offender - Employer/employee relationship - Alleged fact in mitigation not proved by offender - Onus on offender to prove mitigatory fact

Legislation:

Criminal Code (WA), s 322(2), s 322(4)
Sentencing Act 1995 (WA), s 6(4), s 39(2), s 39(3)

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Ms J D Whitbread

Solicitors:

Appellant:     Robert Young

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Deering v The State of Western Australia [2007] WASCA 212

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Duong v Western Australia [2006] WASCA 110; (2006) 32 WAR 246

Everett v The Queen (1994) 181 CLR 295

Galluccio v The Queen [2000] WASCA 178

House v The King (1936) 55 CLR 499

Podirsky (1989) 43 A Crim R 404

R v Chilvers [2003] WASCA 87

R v Clark [2000] WASCA 229

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Smith [2004] WASCA 44

The State of Western Australia v ABM [2004] WASCA 90

The State of Western Australia v Houston [2005] WASCA 167

The State of Western Australia v Skaines [2006] WASCA 160

VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1

1. WHEELER JA:  The facts relating to this matter are set out by Pullin JA, in reasons which I have had the advantage of reading in draft.  His Honour has dealt with the question of honest belief, that being the main issue raised by the appellant in his oral submissions, in a way with which I entirely agree.  I would not add anything to his Honour's reasons in that respect.

2. I turn then to the ground of appeal as it appears in the appellant's case. It is submitted that his Honour erred in failing to suspend the sentence, having regard to the nature of the offences and the personal circumstances of the appellant. Before I turn to those matters, it is convenient to consider the nature of the offence which is created by s 322 of the Criminal Code (WA) (the Code).

3. The offences involving sexual conduct in the Code may be said, for present purposes, to fall into two broad categories.  One category is concerned with sexual offences which occur without the consent of the victim, including sexual penetration without consent and indecent assaults.  The second category is concerned with sexual offences relating to children under the age of 16 years.

4. As to the second category, it can be said, broadly, that it is an offence to engage in indecent dealing with, or sexual penetration of, any child under the age of 16 unless the person engaging in that conduct either is married to the child (in some circumstances) or, in some other circumstances, is close in age to the child and honestly believes, on reasonable grounds, that the child is over the age of 16.  There is a further distinction between offences concerning children under 13, and those concerning children between 13 and 16.

5. In relation to the sub‑category of offences concerned with older children, ie those between the ages of 13 and 16, there appear to be two important aspects of the legislative purpose for proscribing such conduct.  As I noted in Deering v The State of Western Australia [2007] WASCA 212, one aspect of such legislation appears to be that it is intended to protect young people "from themselves", because of a view that it is undesirable that young people should embark upon sexual activity at an age at which they may be unable to fully comprehend or to cope with the social and emotional consequences of that activity. However, having regard to the fact that it is only in particular and limited circumstances that it is an offence to engage in sexual conduct with a child over the age of 16 years, it seems that it cannot be said that such a legislative purpose underlies s 322. As a general rule, the Code appears to be based upon the assumption that 16 is the age at which young people cease to require legislative protection of that kind.

6. However, as I noted in Deering, the more important aspect of legislation concerned with the prohibition of sexual activity in relation to children between the ages of 13 and 16 is that it is directed to ensuring that those who do not give free and informed consent to sexual activity are not required to engage in it. The legislation recognises that the capacity of a person in that age group to resist moral, social, emotional or other pressure, particularly from a person more mature than themselves, may be very limited. It appears to me that this is, largely, the consideration which underlies s 322. That is, it is considered that a person between the ages of 16 and 18, while generally able to make decisions for himself or herself in relation to sexual activity, is still relatively immature and will have considerable difficulty in resisting persuasion or pressure from persons who are in a position of some authority in relation to them. It may also be that, as appears to have been the view taken by the court in Galluccio v The Queen [2000] WASCA 178, young people in this age group may be more gullible than adults, and may therefore be deceived into giving consent in circumstances where a mature person would not do so, particularly if acting under the influence of a person with some apparent authority.

7. In addition to being more vulnerable to pressure or persuasion, the relative immaturity of such children means that consequences of unwise sexual conduct may have more serious consequences for them.  Leaving aside risks such as possible pregnancy or disease, which are significant in their impact on persons of any age, unwise sexual conduct may result in effects upon relationships with others, may cause a person to become the subject of gossip and innuendo, and may lead to some distortion of a person's attitude to sexual relationships in general.  In a more mature person, such matters are unlikely to have the same significance as they would for a teenager.  The victim impact statement in the present case illustrates the types of effect to which I have referred.

8. It is apparent from the maximum penalties involved that the legislature regarded the offences created by s 322 seriously. Breach of s 322(2) carries a maximum penalty of 10 years, while breaches of s 322(4) carry a maximum penalty of 5 years. The latter is the same as the penalty for indecent assault, if that offence is dealt with on indictment.

9. In assessing the criminality of conduct which falls to be dealt with pursuant to s 322 of the Code, it seems to me that the legislative purpose indicates that certain matters will be relevant. The relationship between the offender and the victim will be important. The greater the position of authority, the more serious the offence, because in that circumstance it is more likely that a child will be more easily persuaded to his or her disadvantage, or will find it more difficult to express reluctance or lack of consent. Certain factors will plainly be aggravating. They include use of any degree of force or violence, or persistence in the face of expressed reluctance, or repetition of the offending. Certain factors, while irrelevant to the question of criminal guilt, will nevertheless be mitigating. Amongst them would be a belief that the child was older than 18; the child's invitation of the conduct, without persuasion or pressure; closeness in age to the child; or the consent of the child, if the consent was not procured by the use of the position of authority, or was procured in circumstances where that position played a limited role.

10. Although the submissions of the appellant suggested that an absence of "grooming behaviour" was relevant, in my view "grooming" is not a concept which is readily applicable in relation to a child over the age of 16.  That term refers to behaviour which is intended, by degrees, to accustom a younger child to the notion that it is appropriate and acceptable for the child to engage in sexual behaviour with an adult.  In relation to children between the age of 16 and 18, there is no blanket legislative assumption that it is invariably inappropriate for the child to engage in sexual behaviour and the concept of "grooming", as applied to younger children, makes little sense.  However, as I have noted, a pattern of attempts at persuasion or pressure will be relevant and will be aggravating.

11. Against that background, I turn to the circumstances of the present case.  The appellant was in a position of authority in relation to the complainant in two ways.  Most importantly, he was her employer and the offence took place at her place of work.  In addition to that, there was the moral authority deriving from the fact that he was the father of her friend.  As to this latter point, it appeared that she had regarded him with affection as a friend's father, and had hugged him from time to time, in a non‑sexual way.  Although there was no violence or threat employed, it is clear that there was nothing to suggest to any rational person that the complainant had invited the appellant to engage in the offending, or that she had in any way indicated consent or interest in sexual behaviour with him.  Those features made the objective circumstances of the offending relatively serious.

1. Features which were mitigating included, as the appellant's counsel pointed out, that the conduct took place over a relatively short period of time.  There was not simply one act; rather, there was a series of acts of increasing seriousness, but they appeared to have occurred immediately one after the other, and within a short space of time.  It appears that the appellant desisted as soon as the complainant pushed him away.  Further, the appellant had entered a plea of guilty, and was of previous good character.

2. The question of remorse is a difficult one.  The appellant had freely admitted the offending, but on the other hand, had attempted to place responsibility for his behaviour on the complainant.  It appears to me that it would be appropriate to regard his plea of guilty as an expression of a willingness to facilitate the course of justice, but to view his remorse and acceptance of responsibility as somewhat limited.

3. As Pullin JA has noted, his Honour erred in the appellant's favour in taking into account in some way the submission which was made to his Honour, that the appellant had believed that the complainant was consenting.  His Honour also took into account, correctly, the considerable disparity in age, the appellant's position of authority and the various personal circumstances, favourable to the appellant, which were put to his Honour.  However, having regard to the statutory maximum in relation to each of these offences, and to the objective gravity of them, I am not persuaded that his Honour erred in failing to suspend the sentences which he imposed.

4. PULLIN JA:  This is an appeal against sentence.

5. On 23 November 2007 in the District Court, the appellant pleaded guilty to the following charges that:

   (1)On 5 August 2004 at Roleystone GLENN WILLIAM CHURCH indecently dealt with [the complainant], a child of or over the age of 16 years and under the age of 18 years who was then under his care, supervision or authority, by kissing her neck.

   (2)AND FURTHER THAT on the same date and at the same place GLENN WILLIAM CHURCH indecently dealt with [the complainant], a child of or over the age of 16 years and under the age of 18 years who was then under his care, supervision or authority, by rubbing the top of her leg.

   (3)AND FURTHER THAT on the same date and at the same place GLENN WILLIAM CHURCH sexually penetrated [the complainant], a child of or over the age of 16 years and under the

age of 18 years who was then under his care, supervision or authority, by penetrating her vagina with his finger.

1. The appellant was sentenced by O'Sullivan DCJ on the following day to 12 months' imprisonment in relation to each of the indecent dealing counts and 2 years' imprisonment in relation to the sexual penetration count, all to be served concurrently.  The total sentence was therefore 2 years' immediate imprisonment.  The appellant was made eligible for parole.

2. The facts found by the sentencing Judge for the purposes of sentencing were as follows:

   The offences all occurred on the one occasion, 5 August 2004, at Roleystone, in your fish and chip shop there.  You were some 48 years of age at the time.  The child was 16, a high school student, a friend of one of your daughters and she worked part‑time in your shop.  The offending occurred at about 7 o'clock at night.  You and the child were alone in the shop.  You approached her as she stood at the sink.

   You kissed her on the neck and sucked on her neck and stood up against her, pushing her against the sink.  That's the indecent dealing the subject of count 1 on the indictment.  You then placed your hand up her skirt and rubbed her on the leg and that's count 2 on the indictment.  You then put your hand inside her knickers and penetrated her vagina with a finger, and that's count 3 on the indictment.

3. There is only one ground of appeal which reads:

   1.The learned sentencing Judge erred in failing to suspend any sentence of imprisonment having regard to:

   (a)The nature of the offences, which occurred on one occasion, were short lived and at the lower end of the scale;

   (b)The personal circumstances of the appellant, including his pleas of guilty, and his previous good character and work history.

4. The task of this Court is to determine whether there was error in sentencing, error being understood in this context as it was explained in House v The King (1936) 55 CLR 499. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [3]. Error will be revealed if the sentencing Judge acted on wrong principle, took into account irrelevant matters, or failed to take into account relevant matters. Sometimes it may not appear how the primary Judge reached the result he did, but, if upon the facts it is unreasonable or plainly unjust, an appellate court may infer that in some way there has been a failure properly to exercise their discretion.

Honest belief - a point not raised in the grounds of appeal

1. The first point addressed by counsel for the appellant was a point not raised or even hinted at in the ground of appeal set out above.  The submission was that the learned sentencing Judge erred when he said, in the course of his sentencing remarks:

   I come now to consider the significance of your counsel's submission that even if the child did not consent to what you were doing you at least had a belief in that regard, that she was a willing participant.  It must be said, I think, that why you would think that is a matter which causes me some difficulty.  The child was 16 and you were 48, she was a friend of your daughter and you were employing her in the shop open to the public or just closed perhaps in the early hours of evening on a school night, but even accepting that submission it does not seem to me that in the scheme of things it counts for very much as a mitigating factor.

2. Counsel for the appellant submitted that the appellant's belief, which was said to be an honest belief, was that the complainant consented to the conduct which formed the subject of the charges. Consent is not an element of charges under s 322(2) and (4) of the Criminal Code (WA), and so an honest and reasonable but mistaken belief that the complainant consented is not an excuse. However, it is true that if the appellant had proved he had an honest belief that the complainant was consenting, then, as Wheeler JA said in The State of Western Australia v ABM [2004] WASCA 90 at [12], this would '… not … excuse his conduct, but it [would be] a relevant factor in assessing the degree of his culpability.'

3. There was significant discussion before sentencing occurred between counsel for both the prosecution and for the appellant about whether the sentencing Judge could sentence on the basis that the appellant had any foundation for his asserted belief that the complainant consented to his conduct.  If the appellant did have any such belief, then it was on the basis of his allegation in his video record of interview that there had been a history of some consensual contact and that those events, and the victim's alleged conduct at the time of the offence, led him to believe that the complainant was consenting at the time the offences were committed.  However, the prosecutor expressly refused to agree that the allegation by the appellant should be accepted as a fact for the purpose of sentencing.  Being a point in issue, and being a point of mitigation, the appellant bore the onus of proving the fact that he had an honest belief that the victim was consenting, which necessarily depended upon proof of the earlier incidents.  Before a sentencing Judge can take into account facts in favour of the accused, the circumstances must be proved on the balance of probabilities.  See R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27].

4. To prove that he did have an honest belief of the kind contended for, the appellant would have had to have given evidence on oath, in effect claiming that he committed other offences against the complainant.  Almost certainly, that would then have led the prosecutor to call the victim to give evidence which, on the prosecutor's instructions, would have been to the effect that the offences were the only sexual contact between the appellant and complainant and that it happened without any conduct on the complainant's part which could have given the appellant any reason to believe that she consented.  After lengthy discussion about the subject, during which Olbrich's case was referred to by the prosecutor and mentioned by the Judge to counsel for the appellant, counsel eventually declined to call the appellant.

5. Therefore, when the sentencing Judge said during the course of his sentencing remarks that, 'even accepting' the submission that the complainant was a 'willing participant' it did not seem to him that it 'counts for very much' as a mitigating factor, the learned trial Judge did err.  However, he erred in the appellant's favour, by acknowledging the possibility of the existence of a mitigating fact which had not been proved and which had been expressly put in issue by the prosecution.  The fact that the sentencing Judge decided not to give it much weight was, however, to give it some weight and that was also an error in favour of and benefiting the appellant.  The contended for fact should not have been given any weight at all.

6. There is no substance in this point.

The grounds of appeal

1. I now return to consider the single ground of appeal.

2. Offences against children require authoritative denunciation and deterrence will always be an important factor in sentencing in such cases.  Often imprisonment will be the only proper sentencing option.  However, there is nothing about offences of this kind which mean that the provisions of the Sentencing Act 1995 (WA) should not be applied. As usual, a sentencing court must bear in mind that Parliament has stated in s 6(4) of the Sentencing Act that a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires immediate imprisonment. Section 39(3) of the Sentencing Act is to the same effect. Section 39(2) sets out the range of sentencing options, and the eighth option is immediate imprisonment. Section 39(3) directs a court not to use a sentencing option unless satisfied that it is not appropriate to use options listed before the option under consideration. As usual the Court must, when imposing sentence, weigh all relevant factors and, when considering the range of options, and when considering whether or not to impose a suspended sentence, it is necessary to reconsider all of the relevant factors which bear upon the factors which would warrant imprisonment. See Dinsdale (supra) and Duong v Western Australia [2006] WASCA 110; (2006) 32 WAR 246 at [40]. Finally, it is to be observed that a suspended sentence may be imposed even for very serious offences.  See The State of Western Australia v Skaines [2006] WASCA 160 at [27].

1. As a background to the sentencing in this case, it is also relevant to know what attitude has been adopted in other cases.  The circumstances, of course, vary dramatically from case to case, and that must always be borne in mind when considering other sentences.  Very few cases were referred to by the parties.  Reference was made to VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1, where this Court said that there has been a gradual firming up of sentences for sexual offences over a number of years. See [288] and [297] and the cases of R v Chilvers [2003] WASCA 87; The State of Western Australia v ABM [2004] WASCA 90; Galluccio v The Queen [2000] WASCA 178 and R v Smith [2004] WASCA 44.

2. The first point to be made about the State appeals, ie ABM, Smith and Chilvers, is that special considerations apply in relation to decisions which have come under review in an appeal by the prosecutor.  These cases should be a rarity and the appellate court has an overriding discretion which may lead it to decline to intervene even if it comes to the conclusion that error has been shown in the original sentencing process.  See Everett v The Queen (1994) 181 CLR 295 at 299 and The State of Western Australia v Houston [2005] WASCA 167 at [52] to [54].

3. Nevertheless, even though there are these special considerations in relation to prosecution appeals, the underlying sentence may give some guidance, particularly if the court on appeal does not indicate that there was any error in the sentence imposed in the court below in the course of dismissing the appeal.  In Galluccio, there was a substantial disparity in the ages of the employer and the young female complainant who was his employee.  The offences were more serious than the offences here.  They included one of attempted penile penetration and were elaborately planned.  The offender was sentenced to 2 years' imprisonment and that was in pre‑transitional days. 

4. In Chilvers' case, the offences were committed upon two sisters who were 12 and 14 years of age in the course of a de facto relationship with their mother.  A significant factor was that the offender in that case had commenced a treatment programme and was making good progress.  The court said that the trial Judge had not made any error by suspending a sentence of imprisonment of 3 years.  The most serious of the charges involved digital penetration, but the age of the complainants made the offences far more serious.  McKechnie J, with Anderson and Parker JJ agreeing, made the point that it is not correct that sexual assault cases always require a term of imprisonment to be served immediately and added '[t]o hold otherwise would effectively deny any operation of the provisions of the Sentencing Act relating to suspended sentences and ISOs in cases of intrafamilial sexual offences'.  His Honour acknowledged that such cases are likely to be rare, but concluded in that case that he did not consider that sentencing principles compelled the conclusion that only an immediate sentence of imprisonment was appropriate. 

5. The ABM case is of little relevance.  It did not involve a person in a position of authority.  The case involved charges of penile penetration and other offences committed in two incidents about six months apart.  The complainant was between 14 and 15 years of age.  The offender was in his twenties.  The offender was sentenced in the District Court to 18 months' suspended imprisonment on the more serious charge and ISOs were imposed in relation to the other offences.  By a majority, the State appeal was dismissed.  Wheeler J, in her reasons for dismissing the appeal, concluded that the case did not have the appearance of one of those exceptional cases which would justify a sentence other than immediate imprisonment but the exercise of mercy in the particular circumstances of the case was sufficient reason to dismiss the State appeal.  The Chief Justice agreed and with 'hesitation' dismissed the appeal.  Miller J dissented and would have imposed a sentence of immediate imprisonment. 

6. The case of Smith (supra) was a case of digital penetration and four counts of indecent assault, all of which occurred in a single incident.  The offender was sentenced to 12 months' imprisonment on the indecent assault charge and 2 years' imprisonment on the sexual penetration charge.  These sentences were ordered to be served concurrently and suspended for 2 years.  However, there was no relationship of trust and the discrepancy in ages was much less than here.

7. The case of Dinsdale (supra) should also be mentioned.  The offender committed digital penetration and indecently dealt with the complainant who was 9 years old at the time.  After a trial he was found guilty and sentenced to 18 months' imprisonment, suspended for 18 months.  There was a prosecution appeal which succeeded in the Court of Criminal Appeal and the offender was sentenced to 30 months' imprisonment.  He was admitted to bail by the High Court and ultimately, when the appeal was heard, the Court of Criminal Appeal's decision was set aside and the decision of the sentencing Judge restored.

8. These cases show that is not out of the question for a sentence of imprisonment to be suspended for cases of digital penetration and that there are occasions where in a case of penile penetration an offender may be sentenced to a sentence less than the sentence imposed here. 

9. In this case the sentencing Judge considered that imprisonment was an appropriate remedy for the most serious charge and set a term of 2 years' imprisonment which is not the subject of challenge.  The challenge is to the Judge's decision not to suspend the sentence. 

The factors bearing on a conclusion about culpability 

1. The relevant factors in this case were as follows.  I will begin with the adverse factors.  There was a substantial disparity in the ages of the complainant and the appellant.  The offences were committed by the appellant on a person under his authority, the offences had an ongoing impact on the complainant as revealed in her victim impact statement, the offences were likely to cause an extra impact because of the fact that the complainant and the appellant's daughter were school friends, and the appellant persisted in his contention that he believed he had been encouraged to commit the offences by the complainant when there was no evidence to support that contention. 

2. On the other hand there are a number of significant factors mitigating the seriousness of the offence.  First, the appellant had no previous criminal history at all.  Secondly, he had been married for 22 years and had three daughters, and the sentencing Judge noted that he had been a 'hard worker and a valuable contributor' not just to his family, but also to his local community.  Thirdly, when interviewed by the police, he admitted the acts constituting the offence and he pleaded guilty.  (I accept that this latter factor was not as strong as it could otherwise have been because of his failure to fully accept that the complainant was not a willing participant).  Fourthly, there was nothing to show that the protection of the community required a sentence of imprisonment.  Fifthly, there was no violence or threat of violence or any suggestion of planning and no evidence of grooming.  Sixthly, the offence occurred on the spur of the moment.  Seventhly, and of considerable importance, was the fact that the incident took place over a very short space of time and the appellant desisted as soon as the complainant pushed him away. 

Sentencing Judge makes no mention of short space of time involved in the offence

1. The sentencing Judge made no mention of the significance of this last factor.  The ground of appeal complains in particular about the sentencing Judge's failure to have regard to how short‑lived the incident was.  I agree that this was a factor of considerable importance and that the sentencing Judge erred in failing to mention it or to take it into account.  In any event, even if the sentencing Judge had taken this into account and mentioned that the offence occurred without any apparent planning, without violence or threat of violence, or any grooming, I would have concluded that the sentence in this case was unreasonable and plainly unjust.  The circumstances did not warrant a conclusion that only imprisonment could be justified.  I would therefore uphold the appeal and set aside the sentences.

Resentencing

1. It is therefore necessary for me to resentence the appellant, taking into account all the factors mentioned.  It is often said that there is no tariff in relation to sexual offences.  See for example Podirsky (1989) 43 A Crim R 404; VIM [301] and Chilvers [25]. This is because the circumstances may vary enormously. Some offences occur in an intrafamilial setting, others do not. Some are single incidents, some are representative of conduct over a long period of time; some offences are accompanied by violence or threats of violence; some may involve grooming. The ages of the victims will be important. The discrepancy between the ages of the victim and the offender will also be important. The fact that there are so many different factors makes it difficult to try and set a range of sentences for all sexual offences. In VIM (supra) the Court of Appeal did set a range (at [302]) but it limited its attention to the pattern of sentencing for offences involving 'multiple sexual offending against children' [298], and the cases examined were selected on the basis that they involved 'more than five sexual offences against a child, or against a number of children, or involved a charge of maintaining a sexual

relationship with a child, in circumstances where it was clear that there had been multiple offending. In the majority of cases, there has been at least one count of sexual penetration of a child's vagina or anus by the offender's penis' [300]. In Podirsky, the Chief Justice mentioned the sentence usually imposed in cases of a single act of penile penetration.  See also R v Clark [2000] WASCA 229 at [11]. The Court was not referred to any recent decision suggesting a range of sentences or a usual sentence for a single act of digital penetration.

1. I have already mentioned s 6(4) of the Sentencing Act which contains a direction to courts not to impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. 

2. I have mentioned all of the relevant factors above.  The fact that the offence was short‑lived, opportunistic, there was no violence, no threat of violence and no grooming, considerably reduces the seriousness of the criminality involved in this case. 

3. The sentences imposed should be set aside.  In lieu, in relation to counts 1 and 2 the appellant should on each be sentenced to a term of imprisonment of 12 months.  In relation to count 3, he should be sentenced to 2 years' imprisonment.  In each case, taking into account all the factors I have mentioned, all of the sentences should be suspended for a period of 2 years and all sentences should be served concurrently.  

4. BUSS JA:  I agree with Wheeler JA.