FAJ v The Queen
[2011] VSCA 137
•13 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0085
| FAJ | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, WEINBERG and HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 29 March 2011 |
| DATE OF JUDGMENT | 13 May 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 137 |
| JUDGMENT APPEALED FROM | R v FAJ (Unreported, County Court of Victoria, Judge Rizkalla, 5 March 2010) |
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CRIMINAL LAW – Sentence – Multiple counts of indecent act with a child under 16 and sexual penetration of a child aged between ten and 16 – Admissions and pleas of guilty – Sentenced to total effective sentence of imprisonment for six years and six months – Non parole period of three years – Whether sentencing judge treated representative counts as rolled up counts – Whether sentences manifestly excessive – Whether sentences on representative counts inconsistent with those imposed for discrete counts – Totality – Aggravating features – R v Jones [2004] VSCA 68, R v CJK (2009) 22 VR 104, R v Abbott (2007) 170 A Crim R 306 and DPP v OJA (2007) 172 A Crim R 181 applied – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
For the Applicant | Mr C B Boyce | Anthony Isaacs, Criminal Lawyer |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Harper JA. For the reasons his Honour gives, I too would dismiss the appeal.
WEINBERG JA:
I agree with Harper JA.
HARPER JA:
At the beginning of the year 2000, the appellant was employed as the manager of a suburban supermarket. He was then 33 years old.
At the same time, three boys, two aged 15 and one aged 14, were employees of the supermarket. The appellant was their manager, while they were students, employed on a casual basis. He was therefore their senior in age and in status. He stood in a position of trust in relation to them. Between New Year’s Day and the following 17 March, however, he committed with each of them numerous acts of indecency and sexual penetration.
The appellant was interviewed by the police nine years later, on 29 January 2009. He made full admissions, and was subsequently presented on nine counts. Counts 3, 6 and 9 – each of which allege sexual penetration of a child under the age of 16 – were pleaded as single occasions of offending. Each of the six remaining counts were pleaded as being representative. Counts 1, 4 and 7 alleged that the appellant took part in an indecent act with a child under the age of 16. Counts 2, 5 and 8 alleged the sexual penetration of a child under that age. At the time of their commission, each offence carried a maximum penalty of 10 years’ imprisonment.
The first complainant, to whom I shall refer as AB, recalls an evening during which he and the other two complainants (CD and EF) were in the appellant’s office with him. Having given them alcohol, he pulled AB’s pants down and fondled his
penis. He then performed oral sex on his young victim.
Thus began a pattern of behaviour which occurred in the evening or at night when the appellant and his three child victims were together, but otherwise alone, in the office of the supermarket. He provided alcohol and cigarettes, together with access to the office. There is no suggestion of any coercion. On the other hand, the provision to children of potentially addictive substances in return for sex, with no regard for the adverse consequences, constitutes very serious offending. It can, and often does, result in lifelong damage to those subjected to it. It is selfish and exploitative in the extreme.
According to AB, the act of masturbation which the appellant instigated on that first night was repeated on at least four further occasions. The appellant also performed oral sex on AB, and this too was repeated multiple times – five of which were encompassed in another of the representative counts, count 2. In addition, AB remembers one specific instance when, at the appellant’s request, the order of things was reversed, and AB performed oral sex on him. This additional instance formed the basis for count 3.
CD tells a similar story. He says that he was on five occasions masturbated by the appellant, who on five occasions also performed oral sex on him (CD). These activities formed, respectively, the bases for count 4 and count 5. During the same period (between 1 January and 17 March) the appellant asked CD to perform oral sex on the appellant. CD complied. This forms the subject of count 6.
The account given by EF matches that of the others. He too recalls an incident, one of five similar occurrences, during which the appellant masturbated him (count 7, a representative count). On an additional five occasions the appellant performed oral sex on him (count 8, also a representative count). During this period, the appellant also asked EF to perform oral sex on the appellant, which EF did on one occasion (count 9).
During each of these incidents, all four participants – the appellant and the three complainants – were present. It is to the appellant’s credit that, knowing that what he was doing was wrong, he desisted; but only after some 10 or 11 weeks involving, on his admission to the police, some 40 acts of fellatio and, as he accepted by his plea of guilty, numerous acts of indecency.
Having made admissions during his police interview, the appellant pleaded guilty at the first opportunity. The plea hearing took place on 5 February 2010. At its conclusion, the judge sentenced the appellant as follows:
Count
Offence
Circumstances
Max
Sentence
Cum
1
Indecent act with child under 16
Masturbated DM’s penis – victim aged 15 years – rep count (5 occasions)
10 years imp
18 months imp
-
2
Sexual penetration of child aged between 10 and 16 years
Performed oral sex on DM – rep count (5 occasions)
10 years imp
3 years imp
Base sentence
3
Sexual penetration of child aged between 10 and 16 years
DM performed oral sex on appellant
10 years imp
18 months imp
6 months
4
Indecent act with child under 16
Groped PH’s penis – victim aged 14 years – rep count (5 occasions)
10 years imp
18 months imp
-
5
Sexual penetration of child aged between 10 and 16 years
Performed oral sex on PH – rep count (5 occasions)
10 years imp
3 years imp
1 year
6
Sexual penetration of child aged between 10 and 16 years
PH performed oral sex on appellant
10 years imp
18 months imp
6 months
7
Indecent act with child under 16
Masturbated RL’s penis – victim aged 15 years – rep count (5 occasions)
10 years imp
18 months imp
-
8
Sexual penetration of child aged between 10 and 16 years
Performed oral sex on RL – rep count (5 occasions)
10 years imp
3 years imp
1 year
9
Sexual penetration of child aged between 10 and 16 years
RL performed oral sex on appellant
10 years imp
18 years imp
6 months
Total effective sentence = 6 years 6 months’ imprisonment
Non-parole period = 3 years’ imprisonment PSD = 28 days
The total effective sentence was therefore imprisonment for a period of six years and six months. Her Honour fixed a non-parole period of three years’ imprisonment. Pursuant to s 6AAA of the Sentencing Act 1991, the judge stated that had the appellant not pleaded guilty, she would have imposed a term of imprisonment of nine years, with a minimum of six years to be served before the appellant became eligible for parole.
On 29 October 2010, Weinberg JA granted the appellant leave to appeal against sentence.
The appellant originally sought leave on three grounds. Stated briefly, they are as follows. First, that the individual sentences on the representative counts (counts 1, 2, 4, 5, 7 and 8) are manifestly excessive and/or are inconsistent with the sentences on the discrete counts (counts 3, 6 and 9). Ground 2 is that the total effective sentence and the non-parole period are manifestly excessive and in breach of totality. Ground 3, which was that the judge erred in allowing a manifestly insufficient discount on the total effective sentence for the early pleas of guilty, has since been abandoned.
Ground 1
In full, ground 1 reads:
The learned judge erred in her approach to, and in the sentences imposed on, the representative counts (counts 1, 2, 4, 5, 7 and 8); and in particular she erred:
(a)in sentencing on the representative counts as if they were rolled up counts; and
(b)in imposing sentences that are manifestly excessive and/or inconsistent with the sentences on the discrete counts (counts 3, 6 and 9).
A sentencing judge must not, by the loading of a sentence, punish the offender for the represented offences.[1] In other words:
The offender is to be sentenced for the offence to which he has pleaded guilty, although it cannot be said to have been an isolated offence, and the fact that the offence is representative has a consequence that the offence may be seen in the wider context of the representative offences. The position is, of course, different with rolled-up counts.[2]
[1]R v SBL [1999] 1 VR 706, 725 [69]-[70].
[2]R v Hunter [2006] VSCA 9,[2] (Charles and Vincent JJA).
That difference was explained in The Queen v Jones. Charles JA, who gave the principal judgment in that case, said:
It is of course correct that when sentencing on a representative count the judge is not entitled to impose sentence in respect of other crimes. But in my view, a rolled-up count is entirely different from a representative count. In [Counsel for the Crown’s] written submissions for the Crown, it was submitted, I think correctly, that rolled-up counts are a collection of offences bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. [Counsel for the Crown] argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner.[3]
[3]The Queen v Jones [2004] VSCA 68, [13]. Footnotes omitted.
As the appellant points out, and as is apparent from the table reproduced at [12] above, the sentencing judge followed a pattern. The appellant was, on each count of committing an indecent act with a child under the age of 16 (counts 1, 4 and 7) sentenced to 18 months’ imprisonment. All were representative counts, although in none was there an order for cumulation. On each discrete count of sexual penetration of a child under the age of 16 (counts 3, 6 and 9), the sentence was also 18 months’ imprisonment; but in each such case her Honour ordered that six months of that term be served cumulatively on the sentence imposed on count 2. This, along with counts 5 and 8, was a representative count alleging sexual penetration of a child under the age of 16. Count 2 was the base sentence. It, together with counts 5 and 8, attracted a penalty of three years’ imprisonment. Her Honour ordered that one year of the term imposed on each of counts 5 and 8 be served cumulatively upon the sentence imposed on count 2. Hence the total effective sentence of six years and six months.
It is on this basis that the appellant contends that the judge treated the representative counts as if they were rolled-up counts. Had she applied the principles applicable to representative counts, the individual sentences on those counts would, the appellant submits, have been substantially shorter; and this in turn would doubtless have affected in his favour the orders for cumulation.
There is no doubt, however, that her Honour in her sentencing reasons saw the sentences she imposed as appropriate for counts which were representative. She said:
In relation to specifically counts 3, 6 and 9, they represent one sexual activity, the other six counts are representative counts and I was provided in summary with a chart that indicates that and the fact that the six representative counts relate to five occasions of indecent activities [or] sexual penetration alleged in each one of them.
The Crown accepts that there is an apparent tension between the individual sentences of 18 months’ imprisonment imposed on the discrete, and the individual sentences of three years’ imprisonment imposed on the representative, counts of sexual penetration. It nevertheless contends that careful analysis reveals no error. It relies on the absence of any reference to a ‘rolled-up’ count in the reasons for sentence, and on the undoubtedly true proposition that – for the very reason that it is representative – a representative count would often attract a higher sentence than a discrete count. As Warren CJ said in R v CJK: [4]
Due to their representative nature, the impact of the offending upon the victim of the representative count is highly likely to be greater than for the victim of a single but comparable count. Each case will turn on its own facts. That said, there are sound policy reasons for a judge when sentencing to look at the ‘whole picture’ of the offending represented in the representative count to ensure the impact upon the victim of that count is adequately reflected in the sentence imposed.
[4](2009) 22 VR 104, 114 [62].
In this case, the appellant has pleaded guilty to engaging in oral sex with each of the three victims, and having done so on five occasions (in addition to the one discrete act with each child). In each case, the act was committed in the presence of the other two boys, all three of whom were enticed with tobacco and liquor. The period of offending covered some ten weeks. He was their manager. He was an adult more than twice their age. He had a duty not to exploit them. He failed to honour this obligation. He knew that what he was doing was morally and legally wrong. In my opinion, the sentence of three years’ imprisonment, less than a third of the maximum, for each representative offence involving oral sex does not meet the test of manifest excess. It is, as this Court said in R v Abbott,[5] and repeated in DPP v Karazisis & Ors,[6] ‘stringent’. The principal judgment in Karazisis continued:[7]
… the ground of manifest excess … is difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
[5](2007) 170 A Crim R 306, [14].
[6][2010] VSCA 350, [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing).
[7]Ibid.
If there is to be criticism, it should in my opinion be directed to the 18 months imposed for the discrete offences of fellatio. Eighteen months is a mere 15 per cent of the maximum term. To recapitulate the points already made: each offence was committed by a manager on an employee subject to his management; each employee was a child some 18 years the offender’s junior, and less than half his age; the offences were committed in the presence of the other victims, all of whom were enticed to join in these activities by offers of alcohol and cigarettes; the offender was under no illusions: he knew that what he was doing was wrong; and the effect on at least two of his victims was profoundly adverse. Under these circumstances, a term of 18 months’ imprisonment for each offence, being 15 per cent of the maximum, is merciful.
Each of these aggravating features were present when each of the indecent acts (being acts of masturbation) were committed. Again, the appellant by indulging in this behaviour became liable to a maximum penalty of 10 years’ imprisonment in respect of each offence. Yet, although each count was representative, he received only 15 per cent of that maximum. It may be thought that, other things being equal, masturbation by an adult of a child is a less heinous offence than fellatio between an adult and a child. But if the two should be thus differentiated, her Honour drew the distinction. In my opinion there is nothing in those sentences to suggest that her Honour proceeded on the basis that the relevant counts were rolled up counts, or that the 18 months’ imprisonment she imposed for each offence was manifestly excessive.
It also seems to me that her Honour was merciful in holding that each of the sentences imposed on the counts of indecency should be served concurrently with the sentence imposed on count 2. It is true that, as was submitted on behalf of the appellant at the time of his plea, the indecent acts were followed by acts of oral sex performed by the appellant on his victim. In that sense, the indecent act and the act of fellatio formed part of the same incident of offending. In recognition of this, the Crown conceded that there should be significant concurrency between the sentences imposed on the counts alleging indecent acts and those alleging sexual penetration. The Crown did not accept the appellant’s contention that total concurrency was appropriate. Consistently with the Crown’s approach, the very fact that the victim was made the subject of an act of masturbation in order that he might then be further victimised by having fellatio performed on him, arguably warranted some cumulation. Her Honour spared the appellant that. She accepted his submission. She ordered that each of the sentences on the counts of indecency be served wholly concurrently with the sentence imposed on count 2.
There are, as is to be expected, mitigatory factors. The appellant’s wife was unwell at the time of the offending. This resulted in his sexual relations with her being put under strain, and in the appellant feeling lonely and sexually frustrated. He had to that point led an entirely law-abiding life. Moreover, his victims may have been excited by the prospect of sexual experimentation, and to that extent willing participants. At all events, they were not imposed upon, although this is not so much a factor in mitigation as one which merely removes as an aggravating factor any element of force or coercion – while still leaving the appellant open to the adverse consideration that he groomed his victims with supplies of drinks and cigarettes. What is undoubtedly true is that the appellant’s plea of guilty, and his general co-operation with the authorities, warranted a substantial discount in his punishment.
Her Honour took these considerations into account.
For these reasons I do not accept that her Honour sentenced on any of the six representative counts as if they were rolled up counts. Nor do I accept that the sentences which she imposed on them were either manifestly excessive, or inconsistent with the sentences imposed on the discrete counts. Ground 1 therefore fails.
Ground 2
Ground 2 directs attention from the particular to the general. It pleads that the total effective sentence and the non-parole period are manifestly excessive and in breach of totality, particularly in view of the following:
(a) the appellant’s full admission, cooperation with police and remorse;
(b) his early pleas of guilty, with the early indication that that was his intention;
(c) the absence of prior or subsequent convictions;
(d) the fact that the appellant voluntarily ceased the offending;
(e) the short duration of the offending;
(f) the fact that the complainants consented to the acts which constituted the offending;
(g) the absence of any need for specific deterrence;
(h) the appellant’s prospects of rehabilitation;
(i) the Crown’s submission on ‘range’ and the fact that the total effective sentence exceeded the upper end of that ‘range’.
Much of what has been said about the individual sentences is applicable to ground 2 as well. I will, accordingly, take that into account in my examination of the particulars of this ground.
The appellant, in his police interview, made full admissions, and was generally co-operative. As the Crown concedes, counts 5 and 6 derive from admissions made during that interview, and not from anything said by the victim. Other admissions also went beyond the victims’ allegations. The sentencing judge did not specifically refer to the latter, or to the appellant’s claim to be remorseful; but she did take his admissions generally into account, and noted that he was ‘entitled to real credit in sentencing to the fact that [he] pleaded guilty at the first opportunity, [was] co-operative and made admissions in the record of interview’.[8] Her Honour also discussed in her sentencing reasons, in what in my opinion was unimpeachable detail, the appellant’s favourable prospects of rehabilitation,[9] and the fact that, on appreciating the gravity of his behaviour, he desisted of his own motion.[10]
[8]Sentencing reasons, [14].
[9]Sentencing reasons, [17], [21], [22] and [24].
[10]Sentencing reasons, [19].
The appellant did deserve some recognition of the fact that, to the (significant) extent mentioned, his admissions went beyond the allegations made against him. In R v Doran,[11] a case in which ‘the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes’ Buchanan JA, with whom Eames and Nettle JJA agreed, observed that:
… the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.
[11][2005] VSCA 271, [14].
The appellant nevertheless contends that, while the judge referred in her sentencing reasons to the appellant having desisted of his own motion, the total effective sentence was so high as to demonstrate that she gave insufficient weight to this significant fact.
I accept that the appellant’s decision to desist, taken at his own behest, is significant. It is a tangible factor consistent with genuine remorse. On the other hand, the gravity of the offending was also significant. The appellant was not charged with what is now known as ‘persistent sexual abuse of a child under the age of 16’ (formerly ‘maintaining a sexual relationship’ with such a child), an offence the maximum penalty for which is 25 years’ imprisonment. He cannot, therefore, be sentenced on that basis. But, considerations of the relevance of the period of offending aside, his abuse of each of his victims was undoubtedly both persistent and far from merely transitory. There was, in that 10 or 11 weeks of offending, time enough for his victims to suffer that ‘heightened fear’ and ‘increased damage’ which tends to result from persistence and about which Neave JA spoke in DPP v DDJ.[12] Time, too, for ‘the repetition … to make the offender progressively more aware of the effect the abuse is having on the victim.’[13] Moreover, as the Crown points out, the depositions reveal that the appellant attempted to dissuade his victims from speaking to the police – a circumstance which diminishes the appellant’s right to rely upon the mitigatory effect of remorse. The sentencing judge was, in addition, fully alive to an allied consideration – the appellant’s prospects of rehabilitation. She rightly assessed these as high and, as I discuss below, must be taken to have made allowance for this in the length of the non-parole period.
[12](2009) 22 VR 444, [32]. This was a case in which the offender was charged with maintaining a sexual relationship with a child under 16.
[13]Ibid.
The sentencing judge also noted that, on the evidence available to her, the appellant had, before his relatively short (10 or 11-week) period of isolated criminality in 2000, led a quietly blameless life, which he resumed thereafter and which he did not, in the decade between then and his sentence, interrupt.[14]
[14]Sentencing reasons, [23].
That was something upon which the appellant’s counsel relied in the course of his plea. He submitted that ‘specific deterrence is not an ongoing issue in this case’.[15] He relied in support on a report, which was tendered on the plea, prepared by Mr Jeffrey Cummins, a clinical and forensic psychologist. In Mr Cummins’ opinion, clearly though implicitly accepted by her Honour, the appellant is not a paedophile (‘hebephile’ was the word Mr Cummins used), although his behaviour at the time of offending was hebephillic in type. Mr Cummins assessed the appellant’s risk of re-offending as low. The sentencing judge accepted that this was so.[16]
[15]Sentencing reasons, [21].
[16]Sentencing reasons, [24].
On the strength of those assessments, counsel for the appellant submitted that there was no need for specific deterrence. I disagree. The Court cannot simply assume that, without the encouragement of an element of specific deterrence in his sentence, the appellant will not again fall into the pattern of serious criminality of which he is demonstrably capable. Specific deterrence cannot be ignored, although in the circumstances of this case it is not as important a factor as it is in others.
This is not to cavil with her Honour’s opinion that the appellant’s rehabilitation was highly likely.[17] The sentencing judge reflected that opinion in the non-parole period her Honour imposed, which was less than half the total effective sentence.
[17]Ibid.
The total effective sentence is, by six months, above the upper limit of the range put forward by the Crown (four to six years’ imprisonment). Of course, that itself is not sufficient to warrant the interference of this Court. The appellant, however, relies upon current sentencing practices, which reveal that, between 2003-2004 and 2007-2008, the median total effective sentence where multiple counts of the same or similar offences (similar, that is, to sexual penetration of a child aged between 10 and 16) had resulted in convictions, was three years’ imprisonment with an average non-parole period of some two years.
On this basis, it is submitted on behalf of the appellant that a total effective sentence of four years’ imprisonment is at the upper limit, with a non-parole period of two years. By contrast, the Crown points to the fact that the range of sentences for the offence of sexual penetration of a child aged between 10 and 16 was from six months to five years. The Crown also relies on certain aggravating features of this offending.
First, the appellant was in a position of trust, and of power over his victims. Secondly, he offered them cigarettes and alcohol as inducements. His offending was predatory. Thirdly, multiple offences were committed on each victim in the company of the others, with (according to the two who submitted victim impact statements) a devastating impact upon at least two of them. Nothing is known about the impact upon the third. In addition, the appellant fell to be sentenced as a serious sexual offender in respect of all counts after count 2. Moreover, the victims were teenage, part-time employees at a particularly important and vulnerable stage in their lives. Part-time employment is, or at least can and perhaps should be, of special value to them in ways which transcend the financial rewards which come with it. This is therefore not, the Crown submits, a ‘median’ or ‘average’ case. Accordingly, statistics indicating a ‘range’ are not particularly helpful in establishing the upper limit of that range in the special circumstances of this case.
In summary, the Crown submits that the appeal should be dismissed. Although it concedes that much can be said about the appellant which is positive, the aggravating factors which accompany this offending puts it into the category of ‘most grave’. In these circumstances, the powerful matters in mitigation should be subordinated to the gravity of the offending. This, the Crown submits, the sentencing judge appropriately did.
In my opinion, a total effective sentence of six years and six months’ imprisonment for what the appellant accepted in his plea were nine instances of sexual offending against children between the age of ten and 16, six of which were representative, is not, given that the maximum penalty for a single offence is ten years’ imprisonment, and given the aggravating features of the appellant’s criminality, manifestly excessive. I turn to examine, in more detail, the reasons for this conclusion.
It is axiomatic, as this Court said in DPP v CPD, that every sentencing judge – and this Court when resentencing – must have regard to the maximum penalty for the offence in question.[18] It is one of the matters which, under s 5(2) of the Sentencing Act 1991, the sentencing court is commanded to take into account. And it is to be taken into account against a very considerable body of dicta to the effect that ‘[a] society which fails to protect its children from sexual abuse by adults is degenerate’,[19] that ‘the sexual abuse of children by persons in a position of trust is intolerable’[20] and that, accordingly, those who engage in sexually abusing young persons who are in their trust can expect to receive severe punishment.[21]
[18][2009] VSCA 114, [71].
[19]R v Sposito (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993).
[20]DPP v VH (2004) 10 VR 2334, 237-8.
[21]R v WEF [1998] 2 VR 385, 387.
If the maximum sentence is one, current sentencing practices is another, of the considerations to which by s 5(2) of the Sentencing Act sentencing judges must have regard. This has especial relevance where, as here, the offender has pleaded guilty. The courts have properly recognised that, as a matter of justice, an accused who so pleads is entitled to expect that any sentence imposed will conform to those practices. But that assumes that they can, in every individual case, be ascertained.
That is not easy in the circumstances which here obtain. The total effective sentence must reflect the particular circumstances of mitigation, some of which are in this case of powerful import. It must also recognise the features of aggravation, which when taken in combination are relevantly peculiar, if not unique, to this case. As Nettle JA said when commenting on current sentencing practices:[22]
I start from the approach that there is no sentencing tariff as such. Apart from the maximum sentence prescribed by Parliament, the intuitive synthesis approach to sentencing implies an absence of a necessary relationship between one case and another. Accordingly, as the law stands, any notion of a mathematical norm above or below which a case might be cast according to aggravating increments and mitigating decrements is precluded by a general prohibition on the use of two part sentencing processes. At the same time, it is of the nature of sexual offences that some instances of an offence are more serious than others.
… [T]he need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. In fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed.
[22]DPP v OJA (2007) 172 A Crim R 181, 195.
In my opinion, the total effective sentence imposed on the appellant is stern. On the other hand, I do not see it as being ‘wholly outside the range of sentencing options available’ to the sentencing judge; and unless I am able to come to that conclusion, I cannot interfere in the sentence she thought to be appropriate. Accordingly, ground 2 also fails.
I would therefore dismiss the appeal.
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