Director of Public Prosecutions v Harington

[2017] TASCCA 4

[2017] TASCCA 4

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                 Director of Public Prosecutions v Harington [2017] TASCCA 4

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  HARINGTON, Darrel George

FILE NO:  CCA 2009/2015
DELIVERED ON:  17 March 2017
DELIVERED AT:  Hobart
HEARING DATE:  18 August 2016
JUDGMENT OF:  Tennent, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial - Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Sexual offending over long period – Multiple complainants – Sentence of seven years with non-parole period of one half manifestly inadequate.

Aust Dig Criminal Law [3521]

Criminal Law – Appeal and new trial - Appeal against sentence – Appeals by Crown – Principles applied by appellate court to Crown appeals.

Aust Dig Criminal Law [3527]

REPRESENTATION:

Counsel:
             Appellant:  L Mason
             Respondent:  A Hensley
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number:  [2017] TASCCA 4
Number of paragraphs:  101

Serial No 4/2017

File No 2009/2015

DIRECTOR OF PUBLIC PROSECUTIONS
v DARREL GEORGE HARINGTON

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
WOOD J (Dissenting in part)
PEARCE J
17 March 2017

Orders of the Court

1. Appeal allowed.

1. Sentence imposed by Porter J on 8 October 2015 quashed.

1. In lieu, respondent to serve 12 years' imprisonment with a non-parole period of seven years.

Serial No 4/2017

File No 2009/2015

DIRECTOR OF PUBLIC PROSECUTIONS
v DARREL GEORGE HARINGTON

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
17 March 2017

1. I have had the benefit of reading in draft form the reasons of both Wood and Pearce JJ in this matter. For the reasons each has variously stated, I agree that the sentence imposed on the respondent was manifestly inadequate, that the appeal should be allowed and that the respondent should be re-sentenced to a longer period of imprisonment.

2. The issue which, in my mind, is the more difficult one in this case is not the conclusion as to the sentence being manifestly inadequate, but that of re-sentencing. It should be noted that neither counsel wished to be heard in relation to matters which might arise pursuant to the Criminal Code, s 402(4A).

3. For the reasons outlined by Pearce J, I also cannot support a conclusion that a head sentence of 14 years is appropriate in this matter. I agree with Pearce J that an appropriate sentence is 12 years. As to the non-parole period, in many cases where an offender is a first offender, it is considered the norm that a non-parole period equal to one-half of the head sentence is appropriate. In this case, I have approached the setting of a non-parole period from the perspective of the minimum period which I have determined the respondent should serve having regard to all the factors identified by both Wood and Pearce JJ. I would order the respondent serve a minimum of seven years.

4. In summary, I would allow the appeal, quash the sentence of Porter J of seven years' imprisonment with a non-parole period of one-half, and re-sentence the respondent to a global term of 12 years' imprisonment with a non-parole period of seven years. That sentence should commence on the same date that Porter J's sentence commenced. I would not interfere with the order his Honour made under the Community Protection (Offender Reporting) Act 2005.

File No 2009/2015

DIRECTOR OF PUBLIC PROSECUTIONS
v DARREL GEORGE HARINGTON

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
17 March 2017

1. I have had the advantage of reading the reasons of Pearce J and I agree that the sentence of seven years' imprisonment is manifestly inadequate and that this Court should uphold the appeal and impose a more severe penalty.  I agree with his Honour's thorough analysis of sentencing principles, his detailed summary of the offending, characterisation of the respondent's conduct, and consideration of the circumstances of the respondent.  Without wanting to repeat matters dealt with by his Honour, I wish to add some comments of my own bearing on the question of the adequacy of the sentence imposed.  In relation to re-sentencing the respondent, I have reached a different conclusion to that reached by Pearce J.  In my view, a sentence of imprisonment of 14 years with a minimum non-parole period of eight years would be appropriate. 

2. A lengthy sentence was required to adequately reflect the gravity of the respondent's crimes and his high level of moral culpability.  There are matters which I emphasise in that regard. 

3. The crimes concern nine victims; they were committed in four discrete periods spanning 35 years.  There were nine years in which offending occurred.  He committed a substantial number of separate sexual crimes.  Six complainants were subjected to an incident of indecent assault, one complainant was subjected to two incidents of indecent assault, and two complainants, in relation to the charges of maintaining a sexual relationship with a young person, were subjected to a course of sustained sexual abuse.  In the case of Hayden there were at least 14 specified occasions; in the case of Stephen there were five specified occasions.  Each occasion of abuse involved the commission of a serious crime.  Crimes of sexual abuse are severely damaging for child victims and have lasting deleterious effects on their lives.  This is borne out in the victim impact statements provided to the Court and referred to by the learned sentencing judge.  In the case of some of the victims, particularly Hayden, the harm has been profound.

4. All the crimes committed by the respondent involved an exploitation of his position of trust and the vulnerability and innocence of his child and adolescent victims.  One of the complainants was 12 years old, and seven were 13 years of age when the sexual crime or conduct occurred or commenced.  The other victim was 15 years of age. In the case of all nine victims the respondent was in a trusted and responsible role: as a teacher, or in a teaching role with responsibility and authority of managing a science program, as masseuse, personal trainer, family friend or as stepfather of boys who were friends with his victims.  An aggravating feature of each of the crimes is the respondent's appalling breach of the trusted position that he held. 

5. An additional aggravating factor associated with some instances of offending is that the victim was abused in the presence of another child, contributing to the victim's degradation and humiliation.  In a sense, the child who witnessed such conduct is also a victim, as they have been exposed to a perverse and confusing experience which is likely to be psychologically damaging.  On one occasion when the respondent performed oral sex on Stephen in a caravan, another youth was present.  An indecent assault of Nigel occurred in front of his older brother, Thomas. 

6. The respondent's crimes each involved a high level of criminal culpability.  Aggravating features of his conduct are his grooming and pressuring of his victims.  In the case of the two counts of maintaining a sexual relationship with a young person and the indecent assaults involving Nigel, the respondent gradually introduced sexual abuse, and then escalated its seriousness in a calculated fashion.  On occasions he provided alcohol or pornographic material to his victims.  He developed friendships or professional relationships with the children, creating opportunities to have unsupervised access to them.  He fostered friendships with the children's parents and maintained these friendships, having sexually abused their child.  It goes without saying that it involves a chilling level of deception to maintain a persona of a caring and responsible individual, and to maintain a friendship with a parent, when in reality the purpose was to break through the protection the parent provides so that he could sexually abuse their child.  In 1978, after having sexually abused Stephen, the respondent took him home to his parents' house and spent an evening socialising with them.  There are many examples; in 2013, he met with Hayden's parents on the evening after an occasion of sexual assault and he talked to them about the progress of Hayden's knee treatment, told them it was progressing well and suggested daily rather than weekly visits.

7. His conduct was predatory, determined and manipulative.  It can be seen from the details outlined by Pearce J that on numerous occasions the respondent ignored obvious signs that the complainants were distressed and clear messages of reluctance, and persisted in his sexual assault.  Instances of this behaviour can be seen in his sexual assault of Thomas in continuing to rub his erect penis against Thomas's buttocks, ignoring Thomas's resistance.  He persisted with an indecent assault of Nigel by masturbating him and continued, despite Nigel's brother shouting at the respondent to stop.  He persisted with his abuse of Hayden on occasions, despite Hayden's objections.  On another occasion he persisted, despite Hayden's resistance.  He only stopped when Hayden said "No" and became distressed. Despite Hayden's distress shown on that and other occasions, there were subsequent instances of sexual abuse of Hayden and an escalation in the intrusiveness of the respondent's sexual crimes.  Hayden told him he had a girlfriend but the respondent also ignored that clear message. 

8. Instances where the respondent was undeterred by clear signs that the child was distressed, and the child expressed reluctance, affect his criminality on subsequent occasions. The respondent's awareness of that distress and reluctance was knowledge he brought to his subsequent sexual abuse of that child.  That knowledge is another aggravating factor with respect to his criminal culpability. 

9. In relation to count 9 the respondent minimised his risk of detection by often telling Hayden that he could not say anything and that he would not be believed if he did. 

10. The respondent was spoken to by police in 1992 regarding allegations made by Thomas and Nigel.  This should have provided him with an unequivocal message of the criminality and wrongfulness of his conduct. His subsequent abuse of another six children reveals a significant level of recidivism. 

11. I agree entirely with Pearce J that a sentence of seven years' imprisonment was inadequate and plainly so.  The crime of maintaining a sexual relationship with respect to Hayden would alone attract a sentence of approximately that length.  That crime was very serious, comprising multiple sexual crimes, including numerous instances of oral rape and an instance of anal rape, as well as multiple indecent assaults. As noted by Pearce J at [87], in relation to the crime of maintaining a sexual relationship with a young person under the age of 17 years, the offender should receive the same penalty as would have been imposed if the individual sexual acts constituting the crime had been charged as separate crimes.  If the respondent had been sentenced for the specified occasion involving an act of anal rape of Hayden in isolation, a sentence in the vicinity of five years' imprisonment would have been appropriate.  I would consider that a sentence of eight years' imprisonment would be appropriate for this count of maintaining a sexual relationship with a young person, before allowing a discount for a plea of guilty. 

12. In my view, each of the 12 counts, if sentenced in isolation, may have attracted at least the sentence set out below before a discount for a plea of guilty was applied.  A sentence of five years' imprisonment is attributed to the first count of maintaining a sexual relationship with respect to Stephen as being appropriate (again, if dealt with in isolation and before taking into account the respondent's plea of guilty).  This notional sentence reflects a conservative approach, noting that this count of maintaining a sexual relationship involves historical crimes.  As a matter of fairness to the respondent, without being prescriptive, I have taken into account the law at the time of offending (1978-1979), the nature of the criminal offence then applicable, and in a broad sense the sentences imposed for like offending at the relevant time: Radenkovic v The Queen [1990] HCA 54, 170 CLR 623 at 632; R v MJR [2002] NSWCCA 129, 54 NSWLR 368, NSWCCA 129; MPB v The Queen [2013] NSWCCA 213 at [11]; Director of Public Prosecutions v M [2005] TASSC 14, 154 A Crim R 475 at [26] per Slicer J. The Supreme Court of Tasmania sentencing database does not extend to the 1970s, but the first edition of Professor Warner's text, Sentencing in Tasmania, (1991) assists in this regard: at [12.527], [12.529] and [12.519].  Factors taken into account by the courts in assessing criminality then included, as they do now, the age of the victim and breach of trust. 

13. I agree with Pearce J that a sentence of 12 months' imprisonment for possessing and producing child exploitation material is appropriate.

14. The 12 counts, if sentenced in isolation, would have warranted the following terms of imprisonment, before a discount for a plea of guilty was applied:

    maintaining a sexual relationship 1978-1979 (Stephen)     5 years

    3 x indecent assault 1991 (Nigel and Thomas)                3½ years

    indecent assault 2007 (Kane)  8 months

    2 x indecent assault 2007-2009 (Dean and Simon)          14 months

    maintaining a sexual relationship 2011-2013 (Hayden)     8 years

    indecent assault 2011 (Justin)  8 months

    indecent assault 2011 (Matthew)  6 months

    child exploitation material (possession and production)     12 months

15. The respondent submitted that the sentence of seven years' imprisonment imposed by the learned sentencing judge as a global sentence was within an appropriate range.  There was reliance on past sentences and it was said there was, in this case, an absence of aggravating factors, present in others.  It was asserted that cases of maintaining a sexual relationship with a young person which attracted periods of imprisonment of 10-12 years or more, invariably involved many years of persistent penetrative sexual abuse of multiple immediate family members, and are distinguishable from this case.  The argument suggests a tariff has been established and sentences of imprisonment of 10 years or more are reserved for more heinous criminal conduct than in this case. 

16. A comparison between this case and others for the purpose of achieving numerical consistency in the length of the sentence is flawed.  For a start, there is no recognised tariff for the crime of maintaining a sexual relationship with a young person under the age of 17 years:  Director of Public Prosecutions v T [2012] TASCCA 15, 21 Tas R 442 at [22]; Crowley v The Queen [2003] TASSC 147 at [18]; Director of Public Prosecutions v M (above) at [9], [33]-[34].

17. It is unsurprising that there is not as yet a defined and discernible sentencing tariff. The facts of offending in each case are too disparate and there are not enough cases of a similar kind to provide a sentencing pattern for a particular class of similar cases. The crime of maintaining a sexual relationship with a young person, by its nature, applies to a wide range of sexual offences which involve a spectrum of seriousness: s 125A(1). The crime of maintaining a sexual relationship must comprise at least three unlawful sexual acts each constituting an offence, but may involve numerous specified sexual acts. Some offending involves isolated occasions of offending, while some involves a sustained course of sexual abuse spanning years. The crime captures a vast range of conduct in terms of the gravity of offending, the number of sexual acts committed and a vast number of differences in terms of aggravating and mitigating circumstances. Sexual abuse of a child by a family member involves a particularly serious breach of trust which must be denounced. However, to rank an instance of maintaining a sexual relationship involving this aspect above all other instances of this crime is to assume all else is equal. As stated by Brett J in Daley v Tasmania [2016] TASCCA 10 at [42]:

    " … there is little to be gained by embarking on what is in reality a misconceived quasi-mathematical exercise of comparing individual sentences, adjusting for aggravating or mitigating factors which may or may not appear in the sentences under comparison, weighting same and then arriving at a position that a sentence was too high or too low by reference to such comparison. Such a process cannot reasonably account for the variation in the multiple individual factors and their relative significance that appear in each case, or the need and reality of an individualised approach by the sentencing judge ... ." 

18. The difficulties adverted to by Brett J are particularly marked when comparing cases involving the crime of maintaining a sexual relationship as there is a variation, not just in terms of the nature and circumstances of the conduct, but also in terms of the actual crimes committed and the number of them.  Further, any comparison with this case is even more problematic, not only because there are two counts of maintaining a sexual relationship but also because the global sentence was imposed across 12 counts relating to 27 incidents of sexual abuse and a total of nine victims.

19. The fact that there is not a settled sentencing pattern with respect to the crime of maintaining a sexual relationship with a young person under the age of 17 years can be seen from a consideration of past sentences.  In the period since the crime was introduced in Tasmania there has been an increase in the severity of sentences.  See a recent observation of Blow CJ in CJP v Tasmania [2015] TASCCA 9 at [2] rejecting an appeal against a sentence of six years for a crime of maintaining which was considered very high by reference to earlier sentences. To some extent this is an inevitable consequence and a reflection of the greater community understanding of the long term effects of child sexual abuse. The hearings of the Royal Commission into Institutional Responses to Child Sexual Abuse have provided the community and the courts with valuable insight with regard to the serious impact of abuse on child victims. This can be seen in the compelling remarks of the President of the Commission, McClellan J, at the opening hearing of the Commission (see Royal Commission into Institutional Responses to Child Sexual Abuse, Sentencing for Child Sexual Abuse in Institutional Contexts (July 2015) at 69-70). 

20. Of course, even if a range was established and the heaviest sentence imposed in the past was less than that under contemplation, that does not mean that "the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits": see Hili v The Queen [2010] HCA 45, 242 CLR 520 at [54], quoting Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, 79 NSWLR 1 at [303]-[304]. The consistency that is sought is in terms of consistency in the application of the relevant legal principles: Hili at [49].

21. It was further argued for the respondent that the global sentence of imprisonment of seven years imposed by the learned sentencing judge was adequate having regard to the effect of the principle of totality.  Undoubtedly, the principle is an important consideration in reviewing the global sentence in this case.  When sentencing an offender on multiple counts the sentencing court must have regard to the total effect of the sentences, the final penalty, in order to avoid a crushing sentence. The statement of the principle in Thomas, Principles of Sentencing, 2^nd ed (1979) at 56-57, endorsed by the High Court in Mill v The Queen [1988] HCA 70, 166 CLR 59 at 63 is often referred to:

    "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

1. See also Postiglione v The Queen [1997] HCA 26, 189 CLR 295 per McHugh J at 406: "Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the offences". The principle applies to the imposition of a global sentence or a penalty which is arrived at as a consequence of the imposition of individual sentences.

2. The principle reflects the need for mercy and that the sentence should not crush an offender's hope for rehabilitation.  The principle also reflects the understanding that the result of aggregating sentences has a compounding effect on the severity of the total sentence.  The severity of a gaol sentence is not simply proportionate to its length.  As Malcolm CJ said in Clinchv The Queen [1994] WASC 57M 72 A Crim R 301 at 306: "… the severity of a term of imprisonment increases exponentially as it increases in length … Thus, a sentence of five years is more than five times as severe as a sentence of one year."

3. The principle of totality is closely tied to the principle of proportionality and there are limits on the extent to which aggregate sentences should be reduced to take account of totality.  Ultimately, the aggregate sentence must justly and fairly reflect all of the offender's criminal conduct.  This means that the sentence must be heavy enough to adequately reflect the number of crimes and the gravity of them.  The sentence has to be justly proportionate to those crimes and sufficient to reflect the totality of the criminality evidenced by the offences.  This was emphasised by Sully J in R v Wheeler [2000] NSWCCA 34 at [36]-[37] (see also R v Harris [2007] NSWCCA 130, 171 A Crim R 267 at [46]):

   " … (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose."

4. In giving effect to the principle of totality the court must ensure that the sentence gives recognition to the separate harm caused to a victim by the commission of separate crimes, and in the case of the commission of crimes affecting more than one victim, the harm that individual victims have suffered: R v Wilson [2005] NSWCCA 219 at [38] per Simpson J. This ensures that victims are not reduced to "meaningless statistics": Director of Public Prosecutions v Solomon [2002] VSCA 106, 36 MVR 425 at [19] per Winneke P.  The need for recognition of individual victims arises from the proper role of the criminal law:  Munda v Western Australia [2013] HCA 38, 249 CLR 600 at [54], quoted by Pearce J at [92]. I agree with his Honour that the passage from the plurality judgment applies with equal force to sentencing for sexual crimes.

5. In Director of Public Prosecutions v Farmer [2005] TASSC 15, 13 Tas R 418, there was consideration given to the operation of the principle in relation to discrete sexual crimes committed over a lengthy period of time in the context of the Tasmanian legislation. Tasmanian sentencing courts, unlike other jurisdictions, are empowered to impose global sentences: s 11(1), Sentencing Act 1997.  The court is not required to expressly impose a separate sentence for each crime and may impose a single sentence for a number of crimes.  In Farmer there was a thorough consideration of the implications of the global sentencing power and distinctions were drawn with other jurisdictions where the sentencing court is obliged to impose a separate sentence for each offence.  As a consequence of the power to impose a global sentence it is not necessary for the sentencing court to expressly pronounce the notional sentence it would have imposed for each crime in isolation, and difficulties associated with arriving at a global sentence by a mathematical approach were identified: Farmer at [35]-[36].  However, when imposing a global sentence the sentencing court will have in mind the penalties that would have been imposed if the offender had been sentenced separately for each crime: Farmer at [35], [48].

6. Apart from this procedural difference affecting the way in which the court may articulate its reasons and pronounce sentence, the totality principle applies in the same way, having the moderating or ameliorating effect upon the penalty as described above. 

7. As noted, in this case a global sentence of seven years' imprisonment was patently inadequate having regard to the number of crimes, and the respondent's criminal conduct comprising the two counts of maintaining a sexual relationship. 

8. In resentencing and determining a just and appropriate sentence, having regard to the effect of the totality principle, it is significant that the notional sentence I have attributed to each crime of maintaining a sexual relationship, set out above, has already been moderated.  Here, the sentence I have attributed to the maintaining counts has been discounted applying the totality principle and is not simply an aggregation of the sentences that would have been imposed for each discrete specified criminal act of abuse.  It needs to be borne in mind that there is a danger in adjusting downward aggregate sentences which have already been adjusted downward.  When "having a last look" at the sentence it is necessary to ensure that the sentence meaningfully reflects all the criminal conduct and the separate harm occasioned by each crime. 

9. Another consideration is that the two crimes of maintaining a sexual relationship involved discrete periods of offending separated by three decades.  Further, the crimes involving the seven other victims fall within three periods of offending, and one of those periods coincides with the period relating to one of the counts of maintaining a sexual relationship (2011-2013).

10. I regard a just and appropriate global sentence which reflects the total criminality of all of the respondent's conduct and is not unduly harsh as being one of 17½ years' imprisonment.  Returning to the argument that a sentence of this order impinges on the range of sentences reserved for more heinous crimes, I have addressed the flawed approach to principle underpinning that submission and noted that a ceiling has not been established for certain categories of offending.  It is implicit in my reasons, and goes without saying, that more heinous criminal offending than the offending across the 12 counts in this case would warrant a more severe penalty.  

11. I accept that the respondent's plea of guilty is a significant mitigatory factor.  In determining an appropriate discount, the timing of the plea is important, an early plea attracts a greater discount than a late plea.  Here, the respondent's pleas of guilty were entered at a very late stage but saved the victims from giving evidence.  His pleas of guilty may, in the circumstances of this case, result in a discount of up to 20%. Having determined that a sentence of imprisonment of 17½ years is appropriate, I would reduce the sentence to 14 years' imprisonment, taking into account his pleas of guilty. 

12. I consider that a non-parole period of at least eight years is required as the minimum time that justice requires he should serve having regard to all the circumstances of his crimes (Power v The Queen (1974) 131 CLR 623 at 629).

13. In my view, a sentence of no less than 14 years' imprisonment is required to reflect the gravity of the respondent's criminal offending, the appalling breaches of trust involved, his high level of culpability, and the harm caused to the victims and the community.  Such a sentence is appropriate given the need for the Court to denounce such conduct, the demonstrated need for personal deterrence, and the Court's duty to protect children, and in this regard, the need for a heavy sanction as a general deterrent.  I would allow the appeal, set aside the sentence of imprisonment imposed on 8 October 2015, sentence the respondent to 14 years' imprisonment with effect from that date, and order that he not be eligible to apply for parole until he has served eight years of that sentence. 

File No 2009/2015

DIRECTOR OF PUBLIC PROSECUTIONS
v DARREL GEORGE HARINGTON

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
17 March 2017

1. This is a Crown appeal against sentence. The respondent, Darrel Harington, pleaded guilty to two counts of maintaining a sexual relationship with a young person, eight counts of indecent assault, one count of production of child exploitation material and one count of possessing child exploitation material. He was sentenced by Porter J to imprisonment for seven years. His Honour ordered that the respondent not be eligible for parole until he has served half of the sentence. An order was made under the Community Protection (Offender Reporting) Act 2005 that the respondent's name be placed on the register, and that he comply with the obligations under that Act for a period of 20 years from his release.

2. The sole ground of appeal is that the sentence is manifestly inadequate. For the following reasons I would allow the appeal.

Summary of the crimes

1. The respondent was born in 1951. He is now aged 65. His crimes were committed at various stages over a period of about 35 years between 1978 and 2013. The complainants are nine males who, at the time the crimes were committed, were aged between 12 and 15. In each case the boys knew the respondent because he was variously a teacher and educator, mentor, manager, trainer, massage therapist or family friend. The offending falls broadly within four periods. The first is in 1978 and 1979. The second is in 1991. The third is from 2007 to 2009 and the final period is between 2011 and 2013. The circumstances of the offending in those two latter periods are similar and there is no clear distinction between them. In these reasons my description of the circumstances of the crimes comes mostly from the sentencing judge's comments on passing sentence but also from the Crown statement of facts which his Honour summarised. I will use the same fictional names his Honour used to refer to the complainants.

Maintaining a sexual relationship with a young person

1. In the case of two of the complainants, the respondent committed the crime of maintaining a sexual relationship with a young person contrary to the Criminal Code, s 125A. Before describing the respondent's criminal conduct, it is necessary to say something about the crime of maintaining a sexual relationship with a young person. It requires proof of at least three unlawful sexual acts against a young person: s 125A(3)(a). Section 125A was inserted by amendment to the Code in 1994. When the section was first introduced the term "unlawful sexual act" was defined to include eight specified crimes in the Code. Four are relevant to this case: sexual intercourse with a young person, s 124, indecent assault, s 127, aggravated indecent assault, s 127A and rape, s 185. Since then, two of the other four crimes, including indecent practices between males, s 123, have been removed from the definition. In 2001, the crime of indecent act with a young person was added: s 125B. An act is an unlawful sexual act if it constitutes an offence under one of the provisions included in the definition, whether committed before, on or after the commencement of the section. In other words, the crime is committed even if a constituent unlawful sexual act was committed before s 125A was introduced in 1994. In the first case, involving Stephen, the period of offending was in 1978 and 1979. As a result of the provisions to which I have referred, the respondent is guilty of the crime against Stephen although the unlawful sexual acts were committed in 1978 and 1979, before s 125A was introduced. Each constituent act was a crime against a provision listed in the definition of unlawful sexual act. In the other case, involving Hayden, the period of offending was between 2011 and 2013 and thus involves no similar legislative complexity.

2. It is not necessary that the prosecution proves the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of the unlawful sexual acts were committed: s 125A(4). It is often the case that, for this crime, it is difficult to give particulars of each and every sexual act during a period of prolonged sexual abuse. It is partly for that reason that the crime was legislated. The Crown refers to the specific sexual acts it is able to identify, but an offender may be sentenced on the basis that each specific act is part of an ongoing and sustained course of sexual abuse during the offending period if the evidence shows that to be the case.

Stephen 1978 – 1979

1. Between December 1978 and December 1979 the respondent was aged 27 or 28 and was a teacher at a high school in Hobart. He qualified as a teacher in 1973 when he was 22. His responsibilities at the school included helping with sports programs, training sessions, and school camps. Stephen started at the school in 1978 when he was 11. He went to a school camp in which the respondent was involved, and later the two were involved in a school musical. The respondent showed Stephen a lot of attention and Stephen came to admire the respondent as a role model. Stephen's parents were initially reluctant to allow Stephen to travel away with the respondent, but were persuaded by the respondent to trust him with Stephen. The two then spent time together outside school hours. During this period when Stephen was entrusted to the respondent's care, the respondent would, when taking Stephen home, socialise with Stephen's parents. There are five identified occasions of sexual offending as follows:

   ·     The first occasion happened between Christmas and New Year 1978. Stephen was 12. He was with the respondent at a unit belonging to the respondent's parents. The respondent showed Stephen pornography, began to fondle his genitals, took him to a bedroom and masturbated him.

   ·     The second occasion happened at the same unit. In a bedroom, the respondent masturbated Stephen to ejaculation. This was something new to Stephen. He did not understand the process of ejaculation and thought he had urinated. He was confused, upset, ashamed and embarrassed.

   ·     A further identified occasion happened on New Year's Eve in 1978 at the home of the respondent's parents in Lewisham. Stephen was permitted to stay there with the respondent. In a downstairs bedroom the two got into bed naked and the respondent performed oral sex on Stephen until he ejaculated.

   ·     Further incidents happened in early January 1979 at a farm which the respondent had on the east coast. Stephen spent a week there. During this time the respondent regularly performed oral sexual intercourse on him, both in the mornings and at night. Stephen attempted to reciprocate but the respondent often masturbated himself to ejaculation. On one identified occasion the respondent lay face down on the bed, told Stephen to lie on top of him, and had Stephen penetrate the respondent's anus with his penis.

   ·     Further incidents of reciprocated oral sex happened at the farm later in the same month. On a later identified occasion, again at the farm, another youth was also staying there. The two boys were in a caravan. The respondent performed oral sex on Stephen in the caravan in the presence of the other youth which made Stephen very anxious.

2. The acts committed in the specified incidents constitute the crimes of indecent assault, unlawful sexual intercourse with a young person and oral rape. It was contended by the appellant and conceded by the respondent that penetration of the respondent's anus by Stephen with his penis constituted the crime of rape. The correctness of that proposition was recently confirmed by this Court in Director of Public Prosecutions v TGW [2017] TASCCA 1, although it is the criminality of the conduct, rather than identification of the crime, which is relevant to this appeal. In addition to the specified acts the Crown relied on an imprecise but significant number of further unlawful sexual acts committed against Stephen, mostly other indecent assaults by masturbation and repeated acts of oral sexual intercourse. The respondent is to be sentenced on the basis that the specified acts were part of an ongoing and sustained course of sexual abuse.

3. During the remainder of 1979, the relationship continued, although the incidents were sporadic. At the end of 1979 the respondent left the school.

Nigel and Thomas – Three indecent assaults in 1991

1. Three counts of indecent assault concern two complainants who are brothers, Nigel and Thomas. These crimes were committed in 1991 when the respondent was about 39. By this time, the respondent had stopped teaching. He became a science consultant and manager at a science education centre conducted in part by a government department. Within the centre was a science club which aimed to engage children in various scientific disciplines and to focus on creativity in science and technology. In early 1991, Nigel and Thomas were enrolled by their father in the club. Nigel was 13 and Thomas was 15. The respondent befriended them. He helped them with their school assignments. He began to interact with them physically, progressing from bear hugs to tickling, to play wrestling, and then to touching their genitals. The first count relates to Nigel, the younger boy. At a camp run by the club, the respondent took Nigel into a dormitory room, put him on a bed, and while tickling him and holding him down, put his hand down Nigel's trousers and masturbated him. That was the first indecent assault. Inappropriate physical contact continued after this, sometimes in the presence of Thomas. Later, the boys were staying with the respondent before going on a trip to Maria Island. During the evening the respondent gave both boys alcohol and showed them adult pornography. He masturbated himself in front of them. He encouraged them to masturbate themselves, and to use a hand held massage device, but they declined. Afterwards when Thomas had had a shower, the respondent walked into the bathroom naked and rubbed his erect penis against Thomas' buttocks. He continued despite resistance from Thomas, and ejaculated. That was the second indecent assault. Later, the respondent went to where Nigel was, grabbed him, put his hands down Nigel's pants and masturbated him, the third indecent assault. Thomas saw this and shouted at him to stop, but he did not. After the trip, the boys revealed the conduct to their father who wrote to the authorities responsible for the club. Police were contacted in late 1992. Thomas made a formal statement. The respondent was spoken to by police in 1992 but, for some reason, was not formally interviewed. Despite the fact that the complaint subsequently turned out to be correct, the police took no action.

Kane – An indecent assault in 2007

1. The respondent continued working at a number of schools in and around Hobart. Later, in 2004 he obtained certificates in fitness and athletics coaching. In 2006, when he was 55, he established a health and fitness centre. By this time the respondent was married to a woman who had sons from a former relationship. One of them played football with a local club. He had a friend and club-mate of about the same age, Kane. Kane's family knew the respondent well. The respondent had an office and a gymnasium built onto his home and made it available to some of the young boys in the area to help in their training. He told Kane what he could do to build fitness and strength by going to the gym. At the end of 2007, Kane started going to the respondent's gym. He was 13 and had his parents' permission. During the first session the respondent purported to perform an assessment of strength and posture. He asked Kane to take his clothes off so that he could weigh and measure him. Kane kept his underwear on and the respondent took some photos, stating that they were to monitor progress. Kane normally went with some of his friends, and went about two to three times a week. Weighing, measuring and photographing were part of the routine. On one occasion, Kane was told to take off his underpants, which he did, and he was photographed naked. Some months later Kane went to the gym alone. He complained of a sore ankle. The respondent told him to strip off completely. When on the massage table, the respondent rubbed massage oil on the top parts of Kane's legs and into his groin. The charged conduct happened when the respondent then used a vibrating massager on Kane's groin and testicles for about 10 minutes, causing Kane to get an erection. Kane felt very uncomfortable and did not know what to do. The rubbing over his groin and testicles continued for some time, during which the respondent was looking at Kane's erect penis. Kane complained to his father when he went home, and was told that if it happened again the respondent would be spoken to, but Kane did not return.

Dean and Simon – Two indecent assaults between 2007 and 2009

1. Two further indecent assaults were committed between about 2007 and 2009. The complainants were Dean and Simon, two other friends of the respondent's stepsons. Dean began playing football with the club in 2008 when he was 13. He started going to the respondent's gym and went through a similar process to Kane. He was asked to strip naked and lie on the massage table the first time he attended. The respondent massaged his groin area and used a vibrating massager. This went on for about 10 to 15 minutes. Dean involuntarily got an erection and it was obvious to him that the respondent was sexually aroused by this response. Dean later returned to the gym. The charged incident was not isolated in that later massages were given in a similar way, although Dean refused to remove his underpants. He stopped going after about a month.

2. Simon started going to the gym in 2007 when he was about 13 and continued going until about the end of 2009. The respondent took photographs of him in his underpants. When the respondent massaged him, he would remove Simon's underpants. Often Simon would get an involuntary erection. On one particular occasion, the subject of this charge, the respondent took hold of Simon's penis and stroked it with his fingers, commenting that he, Simon, was getting a bit excited.

3. The sentencing judge was told that other boys were massaged in an inappropriate way and at least one reported such conduct in the same period. The boys who went to the gym during these years were uncomfortable and embarrassed about the massaging and touching. Although they mentioned their discomfort amongst themselves, most of them did not make any significant complaint to their parents. Each found excuses not to go to the gym any more. In part the failure to complain came about because of their friendship with the respondent's stepsons. None of the other conduct is the subject of charges.

Hayden – Maintaining a sexual relationship with a young person between 2011 and 2013

1. In 2011, when the respondent was about 60, he completed a certification course for massage therapy. He enrolled in a diploma course but did not complete it. Between 2011 and 2013 the respondent sexually assaulted three more boys who went to his gym as part of their personal training. One of the boys, Hayden, is the subject of the second count of maintaining a sexual relationship. During the relevant period Hayden was aged between 13 and 16. His parents had known the respondent socially for some years and had been to his house on many occasions. In 2011, the respondent told Hayden that he was undertaking a diploma in massage and needed a boy with good muscle definition for training purposes. He asked Hayden if he would be a paid volunteer. The respondent approached Hayden's parents. Believing the respondent to be qualified to deal with sports injuries, and trusting him as a friend, they agreed. After a few massages, the respondent gradually introduced sexualised acts and things escalated from there. The offending can be divided into two periods. The first is from 2011 until January 2012. During that period Hayden went to the respondent's gym more than 30 times. On almost every occasion sexual acts occurred. The Crown relied on 10 specific occasions of sexual conduct of escalating seriousness:

   ·     After only a few massages the respondent started to concentrate the massage around Hayden's upper thighs and groin. This caused Hayden to have involuntary erections. The respondent reassured him that this was normal and that he should not be embarrassed. The respondent soon told Hayden that the massage would be better if he took off his underpants, because it was "part of the relaxation portion" of the massage. After having asked Hayden to remove his underpants for the first time, the respondent massaged his upper thighs, inside legs and stomach area. He then, without warning, touched Hayden's erect penis through the towel covering his genitals and flipped it.

   ·     On the next occasion, after causing Hayden to have an involuntary erection, the respondent asked, "What are we going to do with this?" and started masturbating Hayden, asking, "Is this good?" Hayden was taken aback and did not respond and, at the end of the massage, he left.

   ·     During the next massage, the respondent placed the towel which had been covering Hayden's genitals over Hayden's face, and then, without warning, placed Hayden's penis in his mouth and began sucking it. When Hayden lost his erection the respondent began to masturbate him. Hayden was frightened, embarrassed and uncomfortable. He did not resist but did nothing to indicate acquiescence.

   ·     The respondent used a massage device to Hayden's genital area and against the shaft of Hayden's penis. He asked him if he liked it, to which Hayden responded, "No, because it hurts".

   ·     After one massage, the respondent approached Hayden from behind as he was putting his trousers on. The respondent pressed his erect penis against Hayden, and, after grabbing Hayden in a bear hug, placed his hand down Hayden's underpants and began masturbating him. He then placed Hayden's hand on his own penis and had Hayden masturbate him to ejaculation.

   ·     On one occasion Hayden went to the gym for a massage after having been surfing. After a short massage the respondent tried to grab him from behind in an embrace. When Hayden tried to push him away the respondent grabbed Hayden's penis and masturbated him. Hayden did not obtain an erection. The respondent spun Hayden around and tried to embrace him. Hayden continued to resist but the respondent persisted. He tried to kiss Hayden on the lips and nibbled his ears. Hayden said "No" and became distressed. The respondent then ceased his conduct.

   ·     After a subsequent personal training and massage session the respondent told Hayden to lie on the floor. The respondent sucked Hayden's penis. He then had Hayden suck his penis although Hayden told the respondent he did not like doing so. The respondent ejaculated into Hayden's mouth. Hayden was distressed by this.

   ·     During one massage the respondent began to rub massage oil around Hayden's anus. Hayden clenched his buttocks in an attempt to dissuade him. The respondent continued to add oil and began rubbing his penis around the area. When asked whether he enjoyed it, Hayden replied he did not.

   ·     On a further occasion the respondent again used oil around Hayden's anus. This time he inserted his penis into Hayden's anus. When Hayden complained that he did not like it the respondent replied, "It's okay, not everyone likes that feeling." The respondent then got onto his hands and knees and told Hayden to have sex with him. Hayden did as he was asked and inserted his penis into the respondent's anus. It did not last long and he ejaculated.

   ·     Hayden was sometimes able to avoid sexual contact by resisting an erection. On one such occasion the respondent told him that he would be able to "fix it". To attempt to sexually stimulate Hayden the respondent showed Hayden pornographic images stored on USB sticks he plugged into a computer at his desk. The photographs were of adults and young people, mostly boys. There were a large number of graphic images. Hayden became sexually aroused and the respondent placed his hands over Hayden's penis, outside his clothing, and tried to stimulate him.

2. The specific incidents thus far mentioned are to be considered as part of a course of sexual abuse throughout 2011 and into early 2012. A few weeks after the massages started, the respondent offered to provide free personal training for Hayden at the gym instead of paying for the "massage training". Hayden attended the gym for personal training sessions in the gym followed by a massage on average three times a week. There was sexual touching on each occasion. After a few personal training sessions the respondent took a photograph of Hayden when he was naked and with an erection purportedly for assessment purposes. The taking of that photograph is the subject of the separate count of producing child exploitation material. There were many occasions on which the respondent masturbated Hayden and performed oral sex on him to ejaculation, and other occasions on which he had Hayden masturbate him. No other instances of anal penetration or penetration of Hayden's mouth by penis other than those specified were asserted by the Crown. During this period the respondent attempted acts of intimacy and complimented Hayden on his sexual prowess. He gave Hayden small gifts. On some visits he gave Hayden alcohol. Hayden wanted the personal training which was actually provided, but did not enjoy the sexual activity. He had not previously engaged in any form of sexual intercourse. He felt unable to tell anyone else what was happening and was embarrassed and ashamed.

3. In January 2012 Hayden stopped going to the respondent for massages. He sustained an injury which gave him an excuse to not go. However, about a year later, Hayden sustained a cartilage injury to his knee. By then he was 15. When physiotherapy did not help, he was encouraged by his parents to go back to the respondent. He did not want to, but could not tell his parents why. In February 2013 and March 2013 Hayden went to the gym about 10 times for treatment. He hoped that the sexual conduct would not recur, but to no avail. Some form of sexual assault happened on almost every occasion. Four specific incidents are identified:

   ·     On only the first or second visit the respondent initiated sexual contact by massaging Hayden's groin area causing an involuntary erection. He then masturbated and performed oral sex on Hayden.

   ·     During one visit the respondent, after massaging Hayden's knee, asked him to roll over. He then attempted unsuccessfully to have anal sexual intercourse with him.

   ·     On one occasion, the respondent pulled down Hayden's trousers and underwear and began to suck his penis. When Hayden resisted and said "No" the respondent desisted.

   ·     On the final occasion, the respondent masturbated Hayden's penis, performed oral sex on him, massaged oil around his buttocks, and inserted two fingers into his anus while masturbating him. This continued for a time. When Hayden got up he noticed the respondent was masturbating himself.

4. The foregoing specific incidents are to be considered in the following context. During the 2013 visits the respondent's sexual approaches were so rapid that Hayden had no opportunity for refusal. Other sexual acts of a similar character to those specified, mostly by the respondent masturbating Hayden and performing oral sex on him, occurred. Hayden wanted the contact to stop but did not know what to do and did not feel strong enough to tell his parents. He felt guilty because the respondent was a friend of his parents. The respondent constantly told him that he could not say anything and that no-one would believe him if he did. The respondent persisted even though Hayden told him he had a girlfriend. During the sexual acts he tried to lie passively and disassociate from the experience. He did not encourage the respondent. During a number of visits the respondent became more forceful by grabbing Hayden's hands, putting them down his own pants and forcing them back if Hayden tried to remove them. He was physically stronger and Hayden found it difficult to resist.

5. On the evening of the final assault, the respondent met with Hayden's parents to talk to them about the progress of the knee treatment. He told them that it was progressing well and he suggested daily rather than weekly visits. That weekend, Hayden went camping with his parents. It was obvious that something was troubling him deeply. While walking, he began to sob uncontrollably and revealed some of what had been happening.

6. The crimes committed against Hayden throughout the period of abuse constitute indecent assault, aggravated sexual assault, sexual intercourse with a young person and rape.

Justin – An indecent assault in 2011

1. One count of indecent assault involves Justin, a friend of Hayden's. It occurred in September 2011 when Justin was 13. He also played football. The respondent contacted him by Facebook and invited and encouraged him to attend the gym and engage in personal training. He offered free massages. On the first visit, when on the massage table as part of the suggested assessment process, Justin was told to take off his underpants. The respondent touched his genitals and slid his hand between his testicles and anus and pushed his finger into his testicles. This touching appeared to go on for some time. Afterwards the respondent told Justin about various aspects of the program he was intending to develop. He made inappropriate comments about Justin's penis and testicles. Justin did not go back, even though the respondent sent him many messages encouraging his return.

Matthew – An indecent assault in 2011

1. The remaining count of indecent assault involved Matthew. It also occurred in September 2011 when he was nearly 13. His family was closely connected to the football club and the respondent contacted him via Facebook. He encouraged Matthew to start going to the gym. On the third visit Matthew went with a friend. He was offered a massage for a sore shoulder, and then Matthew was offered a massage. He massaged his stomach area and moved towards his groin. The respondent then told Matthew that he needed to look at his pubic hair and measure the length of his penis to determine the stage of puberty he was in. He took a photograph of him while he was only wearing his underpants. He held his testicles and manipulated his penis. Matthew felt extremely uncomfortable and embarrassed. When he got home he told his father about what had happened, and his father said that he did not want him to go back.

Producing and possessing child exploitation material

1. Hayden's parents contacted police in April 2013. The likelihood that other young males may have been sexually assaulted became apparent. A full investigation was undertaken. On 25 April 2013 the respondent's home was searched. Some USB devices and a hard drive were found to contain child exploitation material. One of the devices contained the photograph of Hayden posing naked in the office area. The hard drive contained images of Kane, Simon, Hayden and one of Hayden's friends. They were located close to pictures of other young males, most of whom were posing in a non-sexual way. A total of 2,935 images and one movie were found. Police carried out an assessment of this material using the CETS scale which is a variation of the Oliver scale. Of the images:

   ·     2,645 images are level 1 – images of posing or emphasis on genital areas but not depicting sexual activity;

   ·     169 images are level 2 – non-penetrative sexual activity between children or solo masturbation by a child;

   ·     5 images are category 3 – non-penetrative sexual activity between adults and children;

   ·     95 images are level 4 – penetrative sexual activity between children or between adults and children;

   ·     3 images are category 5 – sadism, bestiality or humiliation; and

   ·     8 images are level 6 – anime cartoons, comics and drawings depicting children engaged in sexual poses or activity.

2. The sentencing judge noted that the content of the images reveal two major themes, one of 8 to 12 year old boys posing naked, the other of 12 to 15 year old boys posing naked or engaged in sexual activity with each other. There was evidence of organisation into sub-folders. One folder was entitled with Hayden's name and contained the single image to which I have referred.

Sentencing – Child exploitation material

1. Consideration of the sentence under appeal must also include consideration of the child exploitation material found in the respondent's possession and the photograph he produced which was also the subject of a separate count. Sentences for child pornography offences were reviewed by this Court in DPP v Latham [2009] TASSC 101, 19 Tas R 281; R v Talbot [2009] TASSC 107; Colbourn v The Queen [2009] TASSC 108; Buddle v The Queen [2011] TASCCA 11 and Taylor v The Queen [2015] TASCCA 7. In Latham, Evans J agreed with the principal judgment which was written by Porter J, to which I will refer again shortly. However, in his judgment, Evans J made remarks, with which I respectfully agree, which explain why such offences as these generally require the imposition of an immediate sentence of imprisonment. It is so principally for reasons of general deterrence. As his Honour pointed out, it is important that those who may be inclined to commit child pornography offences understand that imprisonment is the almost certain consequence.

2. In Latham (above), Porter J reviewed the authorities and derived the following propositions:

   "·   the production of child pornography for dissemination involves exploitation and corruption of children;

   ·   persons with pederastic inclinations can be stimulated to commit such acts on reading the material or viewing the images;

   ·   the collection of pornographic material is likely to encourage those who produce it, for without any market, there is less incentive to make it;

   ·   collection of child pornography may also have the effect of normalising the activity, both in the minds of the participants and makers, and of any children to whom it may be shown;

   ·   widespread collection and distribution may also have the effect of desensitising all those involved in the making, distribution and consumption of the material. This may lead to escalation in the gravity of the conduct depicted."

3. There have been various statements by this Court and other intermediate appellate courts in Australia which provide guidance in assessing the objective seriousness of possession and distribution of child pornography. In Latham, Porter J went on, at [34], to list relevant factors. That list has been subsequently approved in Talbot and Colbourn. I also agree with it. It reads:

   "·   the nature and content of the images, including the age of the children and the gravity of the activity portrayed — in particular, the degree of obvious physical harm or fear or distress in the victim;

   ·   the number of images or items of material;

   ·   whether mere possession is for the purpose of further distribution, and whether there will be any profit or benefit from the activity of the offender. Actual profit or benefit will aggravate the offence, whilst absence of such profit or benefit is not mitigatory;

   ·   the level of personal interest in the material, as perhaps evidenced by the way in which any collection is organised on a computer;

   ·   whether the possession or distribution involves a risk of accidental discovery by innocent computer users."

4. A similar analysis was undertaken by the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60, 26 VR 477 at [21].

5. In this case the majority of the images were in the lesser categories of seriousness, but there were a substantial number in the most serious category. The respondent is not charged with distribution of the material. The evidence shows, however, that he showed the material to Hayden to stimulate him sexually and to facilitate his corrupting behaviour. He had earlier shown pornographic images to other boys. His own photography of the boys who came to his gym suggests a high level of personal interest in such images. The sentencing judge was told that there was no basis to the respondent's claims of study or measurement he used as justification for the photographs he took and stored.

The gravity of the crimes and the moral culpability of the respondent

1. Whilst it is not referred to in the Sentencing Act 1997, proportionality is the primary aim of sentencing: Veen v The Queen (1979) 143 CLR 458; Veen v The Queen (No 2) (1988) 164 CLR 465 at 472. The punishment must fit the crime. Thus, the sentence must not exceed that which can be justified as appropriate and proportionate to the gravity of the crime in light of its objective circumstances: Hoare v The Queen (1989) 176 CLR 348. Conversely, the sentence must adequately reflect the gravity of the crime and the moral culpability of the offender.

1. This appeal requires consideration of the factors relevant to the gravity of sexual crimes committed against children and the culpability of offenders. Clarkson v The Queen; EJA v The Queen [2011] VSCA 157, 212 A Crim R 72 is a joint judgment of five judges of the Victorian Court of Appeal. The Court said, at [42], that a sentencing court will need to consider at least the following matters:

   (a)the relative ages of the offender and the complainant;

   (b)whether the offender was in a position of trust or authority with respect to the complainant which facilitated the commission of the offence;

   (c)the situation of the complainant, and the degree to which he or she was taken advantage of; and

   (d)what the evidence shows about harm already suffered or likely to be suffered.

2. Those comments were made in the context of the Court's rejection of the contention made in that appeal that consent mitigates the gravity of the offence and the offender's culpability in the case of a sexual crime against a child. There are many other relevant factors. The following list draws heavily on the list compiled by the Sentencing Advisory Council and set out in the Council's final report of August 2015, "Sex Offence Sentencing". It is not intended that the list be exhaustive. It includes the matters already referred to in Clarkson v The Queen, and is not in any particular order:

   ·     the age of the child;

   ·     the disparity in age between the offender and the child;

   ·     initiation of contact by the offender;

   ·     grooming behaviour;

   ·     predatory, as opposed to opportunistic behaviour;

   ·     the use of alcohol or drugs to loosen inhibitions;

   ·     the use of other inducements;

   ·     the nature of the sexual acts;

   ·     the number of acts;

   ·     the number of complainants;

   ·     impact to the complainant and others;

   ·     resort to actual or threatened physical force;

   ·     resort to moral, social, emotional or other pressure or manipulation;

   ·     resort to deception;

   ·     the duration of the conduct;

   ·     breach of trust;

   ·     attempts to avoid disclosure by resort to threat, pressure, deception or manipulation;

   ·     the degree to which resistance or distress is ignored or overcome;

   ·     other consequences including bearing a child to the offender, pregnancy or abortion.

3. In this case, some of the factors which may have added to the level of gravity of the respondent's conduct and his moral culpability are absent, but many are present. Although in different periods separated by many years, the respondent's conduct extended over a period of about 35 years. He committed many crimes against nine different boys. Some were exposed to only one offence, but others were subjected to a prolonged period of abuse. There was a large disparity in age between the respondent and his complainants. Even at the earliest time the age difference was about 15 years. At the time of the last offending the age difference was more than 45 years.

4. Each crime involved a breach of trust. Abuse of his position as a teacher at a school in the 1970s is a very grave breach of trust. Apart from the trust placed in parents, there could hardly be a position which engenders a greater level of trust by a child, and the child's family, than the trust placed in a teacher. Much the same applies to persons in positions like the one held by the respondent at the science education centre in 1991, invested as it was with the apparent authority, responsibility and respectability of a government department. Later he took advantage of the trust placed in him as a trainer and provider of therapy and treatment to put himself in a position to offend. By doing so he breached the trust placed in him, not only by the boys themselves, but by the families of the boys as a friend, acquaintance and provider of therapy and treatment for their children.

5. Invariably it was the respondent who initiated contact with the boys. In various ways he placed himself in a position to offend. Over many years his conduct was predatory, and he engaged in grooming behaviour. He groomed the boys and, in many cases, also their parents. In 1978 he used persuasion to overcome the reluctance of Stephen's parents to allow Stephen to go away with him. In 1991 he befriended Nigel and Thomas so as to create the opportunity for them to go away with him without their parents. Much later he got to know the parents of the boys at the football club and socialised with some as a means of engendering friendship and trust. He encouraged the boys to attend. Almost at the last, he met with Hayden's parents to attempt to arrange more frequent appointments with their son. At least in the cases of Nigel and Thomas and Hayden he gave the boys alcohol. That could only have been to ingratiate himself and disinhibit them. In the case of Hayden he used gifts as inducements and to create trust, and resorted to pressure and manipulation to avoid disclosure.

6. There was no question that consent of any of the boys provided any defence or mitigation. For the crimes of sexual intercourse with a young person, indecent assault, and aggravated sexual assault, consent was no defence: ss 124(3), 127(2) and (3) and 127A(2) and (3). A definition of consent was inserted into the Code in 1987: s 2A. The definition was amended in 2004. It was not contended that any boy consented to the conduct, or that the respondent honestly or reasonably believed that any of the boys consented. The reason is obvious. There was no free agreement and the respondent acted without regard to whether there was consent. In some cases he resorted to moderate force in order to impose himself on the complainant and to overcome resistance. He commonly ignored and overcame protestations and distress. The capacity of boys of this age group to resist moral, social, emotional or other pressure of influence from a person older and more mature, and in a position of trust or power over them, is very limited. Such factors generally exclude consent. For the reasons fully explained in Clarkson v The Queen, even if there is consent in cases where it is no defence, it is not mitigating. As the Court of Appeal of Western Australia said in Riggall v Western Australia (2008) 37 WAR 211, 182 A Crim R 517 at [20]:

   "This court has often encountered cases of sexual abuse of children, in which children have acquiesced, or children have been confused as to how they should respond, or in which, particularly if the abuse is introduced gradually and by a liked or trusted adult (in a way often described as 'grooming'), a child may come to enjoy in whole or in part the sexual attention to which they are subject. Such reactions are far from a free and voluntary consent. Indeed, reactions of that kind often contribute to the harmful effects of sexual abuse upon a child, by making the child feel guilt or shame for what he or she may perceive to be some complicity in the abuse."

7. Notions such as those discussed in Riggall may serve to explain, particularly in the case of Stephen and Hayden, why they continued to see the respondent despite the ongoing abuse and, in some part, tacitly submitted or complied. The respondent introduced the sexual conduct in a gradual way, purporting to normalise it as he did so. At least initially, he was a liked and trusted adult. No doubt each boy was confused about how to respond. Because of his position and, in some cases, his friendship or acquaintance with parents, the boys would have felt powerless to refuse. Feelings of guilt and shame resulted. In my opinion such factors add considerably to the gravity of the crimes and the respondent's culpability. As was pointed out by Wheeler J in Deering v The State of Western Australia [2007] WASCA 212 at [18]:

   "In this context, it is recognised that the capacity of a person in this age group to resist moral, social, emotional or other pressure from a person more mature than themselves may be very limited. … [The concept of abuse] is a concept of considerable importance in relation to sentencing in respect of offences of this kind. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or of a pattern of "grooming" behaviour, or a betrayal of trust, the greater the culpability."

8. A related factor impacting on the gravity of the respondent's crimes is the potentially corrupting influence of his conduct and the enormous potential for harm that such conduct may cause. The crimes committed against these boys occurred, in each case, at a critical stage of their emotional, sexual and physical development. For the most part, the respondent's conduct towards them was their first sexual experience. He imposed his will on them and took advantage of their vulnerability for his sexual gratification. He acted without regard to their own sexuality. They were deprived of the emotional and sexual development, unaffected by abuse, that they were entitled to expect. Protection from harm is a fundamental purpose of the relevant provisions of Ch XIV of Pt IV of the Code, especially s 125A. The prohibition on sexual acts with children is founded on the presumption of harm. Premature sexual activity is presumed to cause "long term and serious harm, both physical and psychological": R v G [2009] 1 AC 92 at [48]-[49]. In R v Gavel [2014] NSWCCA 56, 239 A Crim R 469 it was observed at [110]:

   "This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]."

9. This case provides an ample demonstration. Damage may be inflicted not only by a prolonged course of abuse, but also by incidents which are isolated or relatively short lived. Nine boys were affected. The sentencing judge had complainant impact statements from Stephen, Nigel and Thomas, Hayden, Hayden's mother, Justin's father, Matthew and Matthew's parents. He also had a psychologist's report about Hayden. His Honour described the impact in the following terms:

   "Each of those complainants suffered significant emotional impact and continue to experience serious difficulties. In broad terms, the respondent's conduct damaged their lives and the way they view people and relationships. Stephen and Hayden have been particularly affected. Stephen was bullied at school for his association with the respondent. His time at school was very miserable. He felt isolated and afraid, and this continued for quite a while. He feels very wronged as having been treated in that way during his impressionable years. He is conscious of the breach of trust involved. Hayden says his life has changed completely. He has made three suicide attempts. He continues to suffer from anger, nightmares and a loss of focus. His education has been badly affected. The psychological report shows a diagnosis of post-traumatic stress disorder due to severe emotional trauma. He will require ongoing and significant support."

10. The nature of the acts to which the respondent subjected his complainants ranged in gravity from indecent touching over clothing to the most grave form of penetration. Without wishing to understate the seriousness of all the sexual conduct, anal penetration by penis is to be regarded as a most demeaning and degrading form of sexual abuse involving a high degree of moral culpability. The instances of oral rape, particularly those involving penetration of and ejaculation into the mouth of a complainant, also disclose a high level of criminality.

The circumstances of the respondent

1. The respondent is now 65. He had an unremarkable upbringing. Until his conviction for these crimes he had no recorded history of offending. He completed tertiary education. His employment history is already referred to in these reasons.

2. The respondent was interviewed on 3 May 2013. He denied the allegations. He claimed an innocent reason for the photograph of Hayden. He falsely asserted that he was using a system for identifying physical development in children and adolescents based on primary and secondary sex characteristics. He suggested that Hayden had made false allegations against him as a means of obtaining money for drugs after the respondent refused to pay extra money for massages. He denied inappropriate contact with Matthew, and suggested Hayden and Matthew were colluding to make false allegations against him.

3. The sentencing judge was given a report dated 21 September 2015 written by Damien Minehan, a consultant clinical psychologist. More information about the respondent emerges from the report. The respondent told Mr Minehan that a teacher had fondled his genitals when he was about 11. According to Mr Minehan, this incident bore some relationship with the respondent's offending patterns and sexual issues. Through his teenage years and into his adult life, the respondent struggled with his sexual identity. He described himself to Mr Minehan as heterosexual, "bordering on asexual", and that he is "not interested in homosexual relationships". He said that his relationships with women had been, in the main, with one exception, platonic. From about 1998 he developed a relationship with a female who had children from a former marriage. They lived together as a family and he and his partner slept in the same bed. However he claimed to Mr Minehan that the relationship was "not sexual".

4. The respondent told Mr Minehan that his first employment as a teacher was delayed as a result of an accusation of inappropriate sexual behaviour. He was charged with a sexual offence but acquitted. He also told Mr Minehan that he had been charged and acquitted of a further offence while teaching in the 1980s, but that his registration as a teacher was ultimately removed because of such allegations. Nevertheless, the respondent maintained to Mr Minehan that he did not obtain sexual gratification from his conduct with young boys. He suggested that he was not capable of functioning sexually due to depression medication which he had been taking for some years, but was unable to explain the discrepancy between his claims and his offending. Later he acknowledged to Mr Minehan a sexual interest in teenage boys which persisted throughout his life. He denied predatory or grooming behaviour and stated that his offending was "opportunistic" and not pre-planned. The respondent spoke to Mr Minehan of the offending being consensual, that he did not physically "hurt anybody", and of his belief that the boys were willing participants. Mr Minehan concluded that the respondent appeared to find it difficult to acknowledge the level of his wrongdoing and the harm he may have caused.

5. Mr Minehan reported that the respondent has a deviant pattern of sexual arousal specifically related to pubescent or post-pubescent boys. As a result of the claims to the contrary made by the respondent during his interview, Mr Minehan noted that the most prominent and concerning aspect of the respondent's discussion of his offending were his "offence based cognitive distortion and beliefs". Mr Minehan described the respondent's thinking as distorted, although very common amongst "this group of offenders", and a primary factor in facilitating, justifying and perpetuating offending behaviour. According to Mr Minehan the respondent's distorted beliefs would require challenge in treatment. He strongly recommended that the respondent take part in the sex offender treatment program within the prison, and further risk assessment prior to release. He recommended ongoing psychological assistance in the community. In Mr Minehan's view, the respondent's motivation for addressing his offending appeared high, but some effort and persistence would be needed to challenge his offence-based beliefs. According to Mr Minehan's assessment, if the respondent "engages well" with treatment, and with ongoing support, the future risk he poses on release is relatively low.

6. There was little to be said in mitigation for the crimes apart from the respondent's plea of guilty. No mitigation arose from delay because the nature of the criminal conduct tended against discovery, and the respondent continued to offend. However, an important factor in the exercise of the sentencing discretion was the respondent's plea of guilty. A plea of guilty is one of many relevant considerations to be weighed by the sentencing court in determining the proper sentence: Pavlic v The Queen (1995) 5 Tas R 186; Wong v The Queen [2001] HCA 64, 207 CLR 584; Markarian v The Queen [2005] HCA 25, 228 CLR 357. It is ordinarily a factor pointing to a reduction in sentence: Ilic v Tasmania [2009] TASSC 94, 19 Tas R 201. It provides some indication of acceptance of responsibility and vindication of the complainants: DPP v M [2005] TASSC 14, 154 A Crim R 475 at [32]. It was submitted on the respondent's behalf in mitigation that he wanted to make a public acknowledgement of his wrongdoing and that he had realised his moral and legal culpability. A plea of guilty sometimes indicates remorse. In this case, the respondent's repeated criminality over a long period excluded any claim to genuine remorse. However, mitigation arose from the utilitarian benefit of the plea: Dennison v The State of Tasmania [2005] TASSC 54, 15 Tas R 50, per Slicer J at 54 [14]. Mitigation arises for that reason even if the case against an accused is strong and the plea "was born of nothing other than acceptance of the inevitable": Director of Public Prosecutions v Harris [2013] TASCCA 5, 22 Tas R 448, per Estcourt J at 458 [41]. The result of the plea was the facilitation of the course of justice by avoiding the need for what may have been a long, complicated and costly trial. Ordinarily, the most powerful mitigation arising from a plea of guilty to charges of this nature arises from the fact that the complainants are spared from having to give evidence. Giving evidence imposes on a complainant the trauma of having to recall and relive the crimes committed against them, sometimes many years after they have occurred. It involves the embarrassment and humiliation of having to give a public account of events and subject themselves to cross-examination. The emotional impact of the adversarial process has considerable potential to cause further psychological damage.

7. In this case, the plea was entered on the morning the respondent's trial was due to start. The change of plea spared the complainants the ordeal of actually having to give evidence and represented some vindication. However, the complainants were still exposed to the trauma of having to relive and recall the criminal acts to which they were subjected, and the anxiety of the anticipated trial. For that reason, the respondent is not entitled to the greater mitigation that would have arisen from an earlier plea. Counsel for the respondent submitted that anxiety arising from the normal adversarial process of preparing for trial is not a relevant sentencing consideration. I do not accept that submission. Nevertheless, the sentencing judge was correct to allow mitigatory weight to the plea.

Sentencing for the sexual crimes

1. It was pointed out in Richman v Tasmania [2011] TASCCA 18 at [40] that there are almost no limits on the potential scope of a case of maintaining a sexual relationship with a young person under 17 years. The point was made by Evans J in DPP v M at [33]:

   "The circumstances of convictions for the crime of maintaining a sexual relationship with a young person under the age of 17 years can vary markedly in relation to a number of factors including: the nature of the unlawful sexual acts involved; the number of those acts; the length of the period of abuse; the presence of a trust relationship; the use of force; the ages of the perpetrator and the victim; the plea; and the perpetrator's prior convictions. Differences in relation to circumstances such as these make it difficult to compare the sentences imposed for convictions with a view to assessing the sentence that a particular offender should receive on the basis of parity."

1. For that reason it is extremely difficult to establish a sentencing range for the crime and, consequently, also difficult to sustain a ground of appeal that contends that a sentence for this crime is either manifestly excessive or manifestly inadequate: Crowley v The Queen [2003] TASSC 147 at [18]; DPP v M at [9], [33] and [34]. However, in my view, consideration of this appeal is assisted by resort to principle.

2. When an offender is sentenced for the crime of maintaining a sexual relationship with a young person under the age of 17 years, the offender should suffer the same penalty as would have been imposed if the individual sexual acts constituting the crime had been charged as separate crimes: DPP v M per Evans J at [38]; Director of Public Prosecutions v B [2009] TASSC 42, 19 Tas R 14 per Crawford CJ at [23]-[24]; DPP v T [2012] TASCCA 15, 21 Tas R 442 at [19]; Director of Public Prosecutions v STU [2012] TASCCA 7, 21 Tas R 322. Moreover, in DPP v M, Evans J explained at [38] that:

   "In result, it is often not possible for the sentencing judge to do more than sentence on the basis of a very general estimate of the number of sexual acts involved in excess of the requisite three. In these circumstances, it is unreal to endeavour to compare the sentence imposed on a charge of maintaining a sexual relationship with the sentence that would have been imposed had the prosecution been able to identify every one of the offender's unlawful sexual acts and obtain separate convictions for the same. Where the number of sexual acts in excess of three is vague, the sentencing exercise is much the same as that which is undertaken where an offender is convicted of a number of crimes involving specific unlawful sexual acts and the evidence warrants the sentencing judge in taking into account, as a surrounding circumstance, the fact that the crimes were committed as part of a sustained course of sexual abuse."

3. As for any crime, all purposes and objectives of sentencing are relevant: general and specific deterrence, punishment and retribution, denunciation, protection of the community, vindication of complainants and reform and rehabilitation. In Tasmania, some of these factors are stated in the Sentencing Act, s 3, as purposes of the Act itself, to:

   "(b)  promote the protection of the community as a primary consideration in sentencing offenders; and

   (c)promote consistency in the sentencing of offenders; and

   (d)…

   (e)help prevent crime and promote respect for the law by allowing courts to —

   (i)    impose sentences aimed at deterring offenders and other persons from committing offences; and

   (ii)   impose sentences aimed at the rehabilitation of offenders; and

   (iii)  impose sentences that denounce the conduct of offenders; and

   (f)…

   (g)…

   (h)recognise the interests of victims of offences."

4. In sentencing for sexual crimes in general, and especially crimes against children, general deterrence is an important consideration. In Rv S [1985] TASSC 25 at 4, Neasey J referred to the importance of general deterrence "in pursuance of the courts' duty to do what they can to protect children". Courts have an important role in protecting children by imposing sentences that will operate as a deterrent to those who may be inclined to engage in such conduct. In Director of Public Prosecutions v STU (above) at [60]-[63] Wood J said:

   "I commence my consideration by making brief reference to some matters of general principle applying to the sentencing of offenders for sexual crimes involving children. General deterrence is an important consideration; in Rv S [1985] TASSC 25 Neasey J at 4, referred to the importance of general deterrence 'in pursuance of the courts' duty to do what they can to protect children'. This is particularly so in cases when the perpetrator is in a position of trust to the victim: R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at 20. Courts have an important role in protecting children by imposing sentences that will operate as a deterrent to those who may be inclined to engage in such conduct.

   The sentences that are imposed must reflect the community's concern about offences involving the sexual abuse of children, recognising the awareness that now exists within our society of the potential for victims to sustain substantial harm as a consequence of such offending: R v MJR [2002] NSWCCA 129; 54 NSWLR 368; DPP v DJK [2003] VSCA 109 per Vincent JA at [26]. A related objective of the sentencing process is denunciation, thereby reinforcing society's values and expectations of its members: Ryan v R [2001] HCA 21; 179 ALR 193 per Kirby J at 118; Crowley v R [2003] TASSC 147 per Crawford J (as he then was) at [14]. I refer to denunciation in the sense used by Evans J in in DPP v NOP [2011] TASCCA 15 at [41] as that of 'appropriate vindication and to assuage informed public outrage'."

5. Although in Director of Public Prosecutions v STU, Wood J disagreed with the majority in the ultimate result, her Honour's statements of principle were applied by this Court in CJP v Tasmania [2015] TASCCA 9. Deterrence is of particular importance in cases when the perpetrator is in a position of trust to the complainant: R v BJW [2000] NSWCCA 60, 112 A Crim R 1 at 20.

6. In this context, issues of reform and rehabilitation are closely connected with protection of children. Reform and rehabilitation of offenders is directly relevant to the likelihood of future offending. In my view, given the respondent's long history of offending, despite the risk of discovery, and even in the face of unproven charges against him, other complaints to the police, and his apparent de-registration as a teacher, the material before the sentencing judge did not indicate a prospect of rehabilitation or reform such as to materially reduce, still less outweigh, the need for protection of the community and punishment.

7. This case called for a sentence which vindicated the complainants and condemned the respondent's crimes. The crimes against Stephen were not disclosed until 2014 when he reported his experiences to the Royal Commission into Institutional Responses to Child Sexual Abuse. The police complaint made on behalf of Nigel and Thomas in 1991 was not proceeded with. For many years they have had to live with the thought that they were not believed. The respondent used the suggestion to Hayden that a complaint by him would not be believed as a means of preventing disclosure. None of the complainants should have been subjected to this form of abuse. Informed members of the community would rightly condemn the respondent's crimes. The crimes required denunciation in the sense of "appropriate vindication and to assuage public outrage": Evans J in DPP v NOP [2011] TASCCA 15 at [4]. The High Court, in Munda v Western Australia [2013] HCA 38, 249 CLR 600, considered an appeal by a man sentenced for manslaughter. Although the sentence was imposed for an offence of violence, and the remarks were made in that context, I think that the following passage applies with equal force to sentencing for sexual crimes:

   "First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence."

8. The appellant correctly submits that the adequacy or otherwise of the sentence is to be considered in light of the principle of totality. When an offender is sentenced for multiple counts, totality requires that a single or aggregate sentence be a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307–308; Director of Public Prosecutions v Farmer [2005] TASSC 15, 13 Tas R 418; Rae v State of Tasmania [2010] TASCCA 8; Hall v Tasmania [2015] TASCCA 6. It is the final step in the sentencing process which requires the sentencing court to consider the "overall picture", taking into account the objective criminality of the conduct and matters of mitigation: R v Creed (1985) 37 SASR 566 at 568; Postiglione (above) per Kirby J at 340-341. The effect is to reduce the sentence which an offender would otherwise receive and is a reflection of both proportionality and mercy.

Manifest inadequacy and Crown appeals

1. In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, I summarised the principles to be applied by this Court in appeals on the ground of manifest excess or manifest inadequacy in the following terms:

   "As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."

2. This is a Crown appeal. The principles to be applied were reviewed in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24] and following. Those principles derive from the underlying principle that a primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]-[2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen (1994) 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]-[116]. In Everett v The Queen, McHugh J said at 306:

   "Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice."

3. The appellant's right of appeal derives from the Code, s 401(2)(c). The appellant must persuade this Court that a more severe sentence is warranted in law and should have been passed in substitution for the original sentence. In any other case, the Court must dismiss the appeal. Thus, the appellant must not only establish appellable error in the exercise of the sentencing judge's sentencing discretion, but also negate any reason why this Court's residual discretion not to interfere should be exercised: R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]; CMB v Attorney-General (NSW) [2015] HCA 9, 317 ALR 308, 89 ALJR 407; 243 A Crim R 282, per French CJ and Gageler J at [34], and Kiefel J (as she then was), Bell and Keane JJ at [66].

Application of principle and conclusion

1. With great respect to the learned sentencing judge, I have reached the clear conclusion that the sentence imposed was manifestly inadequate. Taking into account the number of persons affected, the number and nature of the acts perpetrated against them, the disparity in age, the predatory and grooming behaviour, the duration of the offending, the gross breaches of trust and the harm caused, the sentence imposed did not reflect the gravity of the crimes and the respondent's overall criminal culpability. It did not achieve the need for deterrence, protection of the public, vindication of the complainants, punishment and condemnation. In my view it fell so short of what was required so as to demonstrate error. I am so satisfied after having made due allowance for the broad discretion invested in the sentencing judge and taken account of the respondent's plea of guilty and totality. Examination of what would have been proper sentences for some of the crimes had they been separately sentenced, allowing for totality, demonstrates my conclusion. In my view, the more recent of the two crimes of maintaining a sexual relationship, without more, required the sentence imposed. The  instance of anal rape in which the respondent penetrated that complainant with his penis, only one of the 14 constituent crimes, demanded the imposition of a sentence of at least four years' imprisonment. There was also an instance of digital anal penetration and multiple instances of oral rape and masturbation to ejaculation. For similar reasons, for the earlier crime against Stephen a sentence of less than three years' imprisonment would, in my view, have demonstrated error. There are seven other complainants. Much harm was caused by the crimes. The crimes of production and possession of child exploitation material required a sentence of imprisonment of at least 12 months. It is not intended that this brief analysis be indicative of a mathematical approach to assessment of the sentence. Rather, it demonstrates how it is that the sentence imposed falls below a proper and just reflection of the respondent's total criminality to the point of clear error.

2. I see no reason to exercise the residual discretion to dismiss the appeal. It is in the public interest that an appropriate sentence be imposed, not only to maintain public confidence in the administration of justice, but also for the guidance of future sentencing courts. I am satisfied that a more severe sentence is warranted in law and should have been passed: the Code, s 402(4). I would not interfere with the order made by his Honour pursuant to the Community Protection (Offender Reporting) Act which is not part of the sentencing order under appeal.

3. I would allow the appeal and quash the sentence imposed by the sentencing judge.

Re-sentencing

1. This Court should re-sentence the respondent. Nothing has been raised as relevant to the sentence that has occurred between when the sentence was imposed and now: s 402(4A). This Court must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to pass a less severe sentence than the Court would otherwise consider appropriate: s 402(4B). The matters I took into account in determining that the sentence imposed was manifestly inadequate also inform my view about the sentence which should now be imposed. But for the respondent's plea of guilty the sentence I would now impose would be greater.

2. Since preparing these reasons I have had the advantage of reading the reasons of Wood J in draft form. I agree with all of her Honour's statements of principle except that I have reached a different conclusion about the length of the sentence to be imposed on re-sentence and the non-parole period. As grave as the respondent's conduct is, I think that there remains some distinction between the nature of his crimes and crimes involving prolonged periods of penetrative conduct, perhaps involving even greater degrees of degradation or violence. That is not to say that much longer sentences are not available for such crimes. There is no sentencing "ceiling". However, in my judgment the sentence which best reflects the respondent's overall criminality culpability is imprisonment for 12 years. I would  order that he not be eligible for parole until having served seven years of that sentence, which is the minimum term which, in the interests of justice, I consider he should serve.