Giles v Director of Public Prosecutions (NSW)

[2009] NSWCCA 308

Reported Decision: 198 A Crim R 395

New South Wales

Court of Criminal Appeal

CITATION:	GILES v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2009] NSWCCA 308 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22 July 2009
JUDGMENT DATE:	18 December 2009
JUDGMENT OF:	Basten JA at 1; Hulme J at 82; Johnson J at 100
DECISION:	(a) Grant leave to appeal against sentence. (b) Quash the sentences imposed in the Sydney District Court on 11 April 2008. (c) Sentence the applicant as follows: Count 1: Fixed term of 1.5 years imprisonment to commence on 4.8.07 and to expire on 3.2.09. Count 2: Fixed term of 2.5 years imprisonment to commence on 4.2.08 and to expire on 3.8.10. Count 3: Fixed term of 2.5 years imprisonment to commence on 4.2.09 and expire on 3.8.11. Count 4: Fixed term of 3 years imprisonment to commence on 4.2.10 and expire on 3.2.13. Count 5: Fixed term of 2 years imprisonment to commence on 4.2.11 and expire on 3.2.13. Count 7: Fixed term of 3 years imprisonment to commence on 4.2.12 and expire on 3.2.15. Count 8: Fixed term of 1.5 years imprisonment to commence on 4.2.13 and expire on 3.8.14. Count 6: Taking into account the matters on form 1: a full term of 6 years imprisonment to commence on 4.2.13 and expire on 3.2.19 with a non-parole period of 4 years, commencing on 4.2.13 and expiring on 3.2.17. The applicant will be eligible for release on parole on 3 February 2017.
CATCHWORDS:	CRIMINAL LAW – appeal against sentence - sexual intercourse with a person between the ages of 10 and 16 under the authority of offender – aggravated act of indecency – discount for early plea of guilty – finding of special circumstances – proper approach to sentencing – whether sentences imposed notionally exceeded maximum penalty available – whether manifestly excessive - SENTENCE – relevant factors – representative charges – specific offences charged occurring as part of overall course of conduct – whether surrounding circumstances and course of conduct relevant to objective circumstances and seriousness of offence - WORDS & PHRASES – “circumstances of aggravation” – “manifestly excessive” – “objective seriousness” – “representative charges” – “special circumstances” – "surrounding circumstances”
LEGISLATION CITED:	Crimes Act 1900 (NSW), ss 61O, 66C, 66EA Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 33, 44, 45, 48 Sentencing Act 1989 (NSW), s 6
CATEGORY:	Principal judgment
CASES CITED:	Anderson v DPP [1978] AC 964 Director of Public Prosecutions v CPD [2009] VSCA 114 Director of Public Prosecutions v EB [2008] VSCA 127; 186 A Crim R 314 Fisher v R [2008] NSWCCA 129 Haeusler v The Queen (19 July 1996, WASC, CCA, unrep) Hejazi v The Queen [2009] NSWCCA 282 Lupton v R [2003] NSWCCA 200 Murrell v R (1985) 4 FCR 168R v AEM [2002] NSWCCA 58 R v D (1997) 69 SASR 413 R v Dawson [2000] NSWCCA 399 R v E D (unreported, NSWCCA, 22 November 1996) R v Fitzgerald [2004] NSWCCA 5; 59 NSWLR 493 R v H (1994) 74 A Crim R 41 R v Holyoak (1995) 82 A Crim R 502 R v JCW [2000] NSWCCA 209; 112 A Crim R 466 R v Knight (2005) 155 A Crim R 252 R v LFJ [2009] VSCA 134 R v Lovatt (unreported NSWCCA 29 July 1988) R v MH [2001] NSWCCA 117 R v O’Connell [1993] 2 NZLR 442 R v RWC (unreported, NSWCCA, 4 August 1994) R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 R v TWP [2006] NSWCCA 141 Reiner (1974) 8 SASR 102 Siganto v The Queen [1998] HCA 74; 194 CLR 656 Smith v R [2007] NSWCCA 138 The Queen v CJK [2009] VSCA 58 Thomas (1992) 65 A Crim R 269
PARTIES:	Rick Stephen Giles (Applicant) Director of Public Prosecutions (NSW) (Respondent)
FILE NUMBER(S):	CCA 2008/1010
COUNSEL:	S Buchen (Applicant) P A Leask (Respondent)
SOLICITORS:	S O’Connor (Legal Aid Commission) (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/1010
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	11 April 2008

CCA 2008/1010

BASTEN JA
RS HULME J
JOHNSON J

18 December 2009

Rick Stephen GILES v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Headnote

On 18 December 2007 the Applicant pleaded guilty in the Local Court to seven counts of sexual intercourse with the Applicant’s step-daughter, under s 66C(2) of the Crimes Act 1900 (NSW), and one count of an aggravated act of indecency contrary to s 61O of the Crimes Act. Each of the counts related to incidents occurring between July 1995 and April 1999, during which time the victim was aged 11 to 15 years.

His Honour Judge Finnane sentenced the Applicant on 11 April 2008 in the District Court to a term of mandatory imprisonment of 11 years with a balance of term of five years for the eight counts, including a number taken into account on count 6 on a schedule pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The sentences incorporated a discount of 25 per cent to reflect the early pleas of guilty and his co-operation with police, as well as a variation of the last non-parole period due to a finding of special circumstances based on the fact that it was the applicant’s first time in custody and his realistic chances of rehabilitation.

The issues raised on appeal were:

(i) whether the sentencing judge erred by imposing individual sentences whose notional starting points exceeded the maximum available penalties, and an overall sentence that was manifestly excessive;

(ii) the extent to which the overall course of conduct out of which the charges arose may be taken into account, and

(iii) the appropriate sentences to be imposed.

The Court held, granting leave, quashing the sentences imposed, and re-sentencing the applicant:

In relation to (i)

(per Basten JA, RS Hulme and Johnson JJ agreeing)

1 The sentencing judge adopted an erroneous approach to sentencing, which resulted in sentences whose notional starting points exceeded the maximum penalties: [31]–[35], [82], [101].

Thomas (1992) 65 A Crim R 269, Hejazi v The Queen [2009] NSWCCA 282 – referred to.

2. Even had the notional starting points not exceeded the maximum penalties, the objective circumstances of the offences did not justify starting points at, or close to, the maximum penalties: [41]–[43].

In relation to (ii)

(per Basten JA)

3. Where specific conduct, constituting surrounding circumstances to the offences charged, is identified and is the subject of an appropriate admission, or proof, it is possible, and sometimes necessary, to regard it as relevant to the objective circumstances of the offences charged. In the present case the fact that the offences constituted part of an on-going course of conduct places them in the higher range of objective seriousness: [61]–[68].

Siganto v The Queen [1998] HCA 74; 194 CLR 656; R v JCW [2000] NSWCCA 209; 112 A Crim R 466 – distinguished.

R v Fitzgerald [2004] NSWCCA 5; 59 NSWLR 493; R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740; Smith v R [2007] NSWCCA 138; Fisher v R [2008] NSWCCA 129; Reiner (1974) 8 SASR 102 at 105; Murrell v R (1985) 4 FCR 168; Haeusler v The Queen (19 July 1996, WASC, CCA, unrep); R v D (1997) 69 SASR 413; The Queen v CJK [2009] VSCA 58; R v O’Connell [1993] 2 NZLR 442; Anderson v DPP [1978] AC 964 – referred to.

(per Johnson J)

4 Although there are persuasive reasons for treating a course of conduct of which an offence is representative as relevant to the objective seriousness of that offence, determination of this issue by this Court should await an appropriate case, assisted by complete submissions provided by parties given adequate notice: [102] – [104].

Director of Public Prosecutions v CPD [2009] VSCA 114; R v LFJ [2009] VSCA 134 – referred to.

(per RS Hulme J, dissenting)

5 Conduct similar to that encompassed by the charges brought, but not itself the subject of charges, may not be taken into account so as to result in the imposition of a sentence higher than would be merited by the conduct charged: [85].

R v Holyoak (1995) 82 A Crim R 502; R v E D (unreported, NSWCCA, 22 November 1996) at page 10; R v JCW [2000] NSWCCA 209; 112 A Crim R 46; R v MH [2001] NSWCCA 117; Fisher v R [2008] NSWCCA 129 – referred to.

In relation to (iii)

(per Basten JA, Johnson J agreeing)

6. The appropriate period of mandatory imprisonment is nine years six months with a balance on the last sentence of two years, giving a total period of 11 years, six months. The reduction of one year, six months from the term imposed by the sentencing judge removes any basis for an argument that the sentences either individually or in their totality are manifestly excessive: [78]–[79], [106]–[107].

(per RS Hulme J, dissenting)

7. Absent consideration of the overall course of conduct as an aggravating factor, the appropriate length of individual sentences should, once accumulated, total eight years incarceration and a balance of term of two years: [87]–[89].

R v H (1994) 74 A Crim R 41 – applied.

R v Lovatt (unreported CCA 29 July 1988); R v RWC (unreported, NSWCCA, 4 August 1994); R v E D (unreported, NSWCCA, 22 November 1996); R v Dawson [2000] NSWCCA 399; Lupton v R [2003 NSWCCA 200; R v TWP [2006] NSWCCA 141 – considered.

CCA 2008/1010

BASTEN JA
RS HULME J
JOHNSON J

18 December 2009

Rick Stephen GILES v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Judgment

1 BASTEN JA: The applicant seeks leave to appeal against the sentences imposed by Finnane DCJ in the District Court at Sydney on 11 April 2008.

2 Each of the counts involved a sexual offence against the applicant’s stepdaughter between 1995 and 1999 when the victim was aged between 11 and 15 years.

3 The first offence, involving an aggravated act of indecency carried a maximum penalty of imprisonment for five years: Crimes Act 1900 (NSW), s 61O(1). The remaining offences involved sexual intercourse with a person between the ages of 10 and 16 years under the authority of the offender and carried a maximum penalty of 10 years: Crimes Act, s 66C(2). With respect to count 6, the applicant invited the Court to take a further seven offences into account on a schedule pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”).

4 The sentences imposed by the District Court were as follows:

Count 1:	Fixed term of 3 years imprisonment to commence on 4.8.07 and expire on 3.8.10
Count 2:	Fixed term of 4 years imprisonment to commence on 4.8.07 and expire on 3.8.11
Count 3:	Fixed term of 4 years imprisonment to commence on 4.8.08 and expire on 3.8.12
Count 4:	Fixed term of 5 years imprisonment to commence on 4.8.09 and expire on 3.8.14
Count 5:	Fixed term of 5 years imprisonment to commence on 4.8.10 and expire on 3.8.15
Count 6 and taking into account matters on Form 1:	Fixed term of 8 years imprisonment to commence on 4.8.10 and expire on 3.8.18
Count 7:	Fixed term of 7 years imprisonment to commence on 4.8.11 and expire on 3.8.18
Count 8:	Non-parole period of 3 years imprisonment to commence on 4.8.15 and expire on 3.8.18 with a balance of term of 5 years to commence on 4.8.18 and expire on 3.8.23.

5 The total term of mandatory imprisonment was thus 11 years, with a balance of term on the last sentence of 5 years, giving an overall sentence of 16 years for the eight offences, including a number taken into account on count 6 pursuant to s 33 of the Sentencing Procedure Act.

Background circumstances

6 The background facts may be briefly stated, because they are not in dispute and the seriousness of the conduct is not challenged. The complainant (who does not share the applicant’s surname) was born on 19 July 1984. For about four months, from the age of 10, she recalled the applicant getting into the shower with her once or twice a week when her mother was not home. In about February 1995 she stated that the applicant encouraged her to shave her legs and, on a later occasion, to shave his chest.

7 When the complainant was about 11 and a half years old the applicant and she had a bath together, with the applicant masturbating to ejaculation. That was the only occasion on which she said such activity took place and was the subject of the first charge.

8 The complainant said that showering and bathing together, and the applicant rubbing her chest, stomach and thighs under her pyjamas at night, continued until the end of December 1995. She said in her statement that she knew that his conduct was “not normal but I didn’t know what to do about it”. She also stated that in late 1995 she started to get “a lot of migraine headaches and was always going to the doctor”. Although she did not tell her mother about the conduct, she began to engage in attention seeking behaviour. She said that the applicant gave her money “all the time”.

9 In about February 1996, the applicant commenced a practice of sucking the complainant’s breasts (which were just starting to develop) and inserting a finger in her vagina. This conduct was the subject of the second count (February 1996) and the third count (July 1996).

10 Other offences of a similar nature during 1996 formed two further charges included on the Form 1, to be taken into account on count 6.

11 Between October and December 1997 the applicant required her to perform fellatio (while he was wearing a condom), an event which constituted count 4. Two other offences, one of digital vaginal intercourse and one of aggravated indecent assault, during 1997, were included on the Form 1.

12 Between February and July 1998, when the victim was aged 13 and a half, the applicant undressed her and performed cunnilingus. That offence became count 5 on the indictment. A further similar offence in that period was also included on the Form 1.

13 The first incident of penile vaginal intercourse occurred in August 1998, shortly after the complainant turned 14. That offence constituted count 6 on the indictment.

14 Court 7 involved a further occasion of sexual intercourse following the applicant plying the complainant with alcohol at some point between July and October 1998. Later that year a further aggravated act of indecency, involving the applicant masturbating in the shower with her was the final offence on Form 1.

15 The final offence charged (count 8) occurred in April 1999, and involved sexual intercourse.

16 The complainant said that her relationship with the applicant became more aggressive thereafter, but recounted no more sexual assaults. She first revealed the assaults to her mother, and her fiancée and later to the police, in late 2006.

17 In August 2007 the complainant, wearing a listening device, visited the applicant and confronted him in relation to what he had done. As noted by the sentencing judge, “when she spoke to him on 4 August 2007 he readily agreed he had sexually abused her and expressed his remorse for doing so”.

18 The applicant was arrested on the same day, interviewed by police and charged with the offences on which he was sentenced. In the course of the interview he accepted full responsibility for his conduct and insisted she could not be held responsible for his actions: answer to Q110. When asked to explain his conduct, he repeated that she was not to blame but was unable to give an explanation: answers at Q324-Q326.

19 The sentencing judge noted the applicant’s ready agreement in relation to his conduct and responsibility, his acknowledgment of the harm done to his stepdaughter and the fact that he deserved punishment. His Honour stated (Judgment on sentence, p 2):

“The fact that he has admitted his guilt, expressed remorse and has not sought in any way to blame the victim means that I can have much greater confidence in the possibility of his rehabilitation than I have had in the past with other such offenders.”

20 He also accepted a psychologist’s opinion that the applicant had “a low risk of reoffending”: p 4. He accepted that the applicant’s prospects of rehabilitation were good, although he noted that he had provided “no explanation” for his conduct. He opined:

“There must be an explanation and he has not chosen to reveal it.”

21 The last comment should be read in the context of a letter written to the Court on 7 February 2008, which stated in part:

“The causes of my behaviour are feeble and pathetic. My immaturity, naivety and drug taking habits clashed constantly with which I percieve [sic] now as low self-esteem.”

22 His Honour held that because of his co-operation with the police and his early plea of guilty, he was entitled to a 25% discount on sentence. He also found that (p 5):

“Because there are realistic chances of rehabilitation and because he has never served any previous sentence of imprisonment I find special circumstances and I fix a non-parole period which is less than it would otherwise be.”

23 The applicant raised three grounds of appeal, namely:

(1) The learned sentencing judge erred by imposing sentences for counts 1, 6, 7 and 8 whose notional starting points exceeded the applicable maximum penalties.

(2) (In the alternative to ground 1) the learned sentencing judge erred by partly accumulating multiple fixed terms that were not the equivalent of minimum terms.

(3) The overall sentence is manifestly excessive.

24 It is convenient to deal with the grounds in the order in which they were raised. For reasons which will appear below, there are problems with the sentences imposed which support a grant of leave to appeal. For these reasons, leave should be granted.

Sentences on counts 1, 6, 7 and 8

25 It is not in doubt that his Honour correctly dealt with the separate offences charged and sentenced the applicant for each offence. That approach is required, even where the charges arise out of a lengthy course of conduct and are capable of being described, as the sentencing judge did, as “representative charges”: Judgment on sentence, p 4.

26 The result in such cases will often involve one sentence being partly or wholly accumulated on another. That must be done by accumulating on the non-parole period, with the result that it is not unusual for the balance of any term being entirely within the non-parole period for the next sentence. It is appropriate in such cases to impose fixed terms of imprisonment, rather than non-parole periods. Whilst that is a reason for not setting a non-parole period, it is nevertheless necessary for the Court to record that that is its reason for taking that approach: Sentencing Procedure Act, s 45(1)(b) and (2). No reasons were given.

27 Whilst the failure to record the reason will not invalidate the sentence (s 45(4)) the mandatory requirement is conducive, not merely to transparency in sentencing, but also to consideration by the sentencing court of the significance of the approach being taken.

28 Although commenting on a previous statutory regime, arising under s 6(3) of the Sentencing Act 1989 (NSW), the comments of Hunt CJ at CL (Grove and James JJ agreeing) in Thomas (1992) 65 A Crim R 269 at 275-276 remain apposite:

“Where a sentencing judge is dealing with either concurrent sentences of unequal length or cumulative sentences, so that any additional terms upon the shorter or earlier sentences would be of no utility (because the prisoner will still be in custody), it is appropriate in such circumstances for the judge to set a fixed term for the length of what would otherwise have been the appropriate minimum term …. The judge should, however, when giving the reasons pursuant to s 6(3) for setting the fixed term, state expressly that the fixed term is intended to be the equivalent of such a minimum term. It would not be appropriate in such circumstances to impose a fixed term for what would otherwise have been the total sentence of the court.”

29 The reasoning in Thomas applies in relation to the current statutory regime. Failure to explain the course being taken led to grounds 1 and 2 being stated in the alternative. The applicant’s primary complaint is that the sentencing exercise must have miscarried in relation to the specified counts. An appropriate fixed term sentence requires the notional consideration of the appropriate non-parole period and balance of the term of sentence. In relation to count 1, the maximum penalty is five years imprisonment, as his Honour expressly recognised: Judgment, p 6. His Honour stated that “[c]ommitting an act of indecency in the presence of a young child is serious and must receive a penalty which makes it clear”. No doubt this statement recognised that the presence of the young child was an element of the offence and that the circumstance of aggravation in the present case was that the victim was under the authority of the offender: s 61O(1) and (3)(b). His Honour continued:

“But for the discount of twenty-five per cent to which he is entitled for his plea of guilty in [and?] my finding special circumstances, because of his age and prospects of rehabilitation[,] I would have proposed a sentence of four years imprisonment. However, because of these factors I reduce that to a sentence of three years which is a fixed sentence.”

30 The import of this reasoning is not entirely clear. The reference to special circumstances can only be relevant to fixing a non-parole period. However, the finding of special circumstances is a statutory pre-condition to imposing a balance of the term of the sentence exceeding one-third of the non-parole period, which was not expressly determined.

31 If the sentencing judge had intended as a starting point the maximum penalty, one might have expected his Honour to say so, given that, chronologically, this was the first offence committed for which the applicant was charged. Assuming that such a starting point was adopted, for the purposes of testing the ground of appeal, a reduction of 25% for the plea of guilty would result in a sentence the full term of which must be 45 months. The finding of special circumstances would mean that the non-parole period had to be less than 34 months. If the balance of term were to exceed the statutory proportion of one-third by more than a trivial amount, it must have been intended to be of the order of one-half. That would have resulted in a non-parole period of no more than 30 months. Even if there had been no variation in the statutory proportion, the fixed term of three years would, as the applicant submitted, have indicated a sentence with a starting point exceeding the maximum penalty. Accordingly, that sentence must be reduced.

32 Although there was no challenge to the sentences on counts 4 and 5, adopting the same calculation, the starting point must have involved the imposition of the maximum penalty in order to achieve a fixed term of imprisonment which was one-half of the maximum penalty.

33 On count 6, for an offence carrying a maximum penalty of 10 years, his Honour imposed a fixed term of 8 years. A similar result was specified in relation to count 8. Each, on the approach indicated above, suggests a starting point of 16 years imprisonment, which is manifestly erroneous. The fixed term of seven years on count 7, being also an offence carrying 10 years imprisonment, was erroneous for the same reasons.

34 There is a further problem in relation to count 8, with respect to which his Honour imposed a non-parole period of three years with a balance of term of five years, giving a sentence of eight years. First, contrary to his Honour’s indication, that sentence failed to allow a 25% discount for the plea of guilty. Secondly, the balance of term of five years constituted a proportion of 167% of the non-parole period. Whether it is ever appropriate to impose a balance of term which exceeds the non-parole period need not be determined. A more likely understanding of the sentence was that having set a term of mandatory imprisonment of 11 years, and applying the finding of special circumstances, his Honour calculated a balance of term exceeding one-third of that period (which would have been 3.7 years) so as to impose a term of five years which was 45.5% of the total mandatory period of imprisonment. That exercise, however, would itself be erroneous. Section 44 of the Sentencing Procedure Act requires that the balance of term must be specified in respect of “the sentence” and not in respect of an accumulation of sentences.

35 That is not to say that the sentencing judge should not take account of the relationship between the total period of accumulated mandatory imprisonment and the period to be served under supervision on parole: Hejazi v The Queen [2009] NSWCCA 282 at [35] (Howie J, Hislop J agreeing). Such a consideration, often taken into account with the principle of totality, may well give rise to a variation in the statutory ratio in respect of the last imposed sentence, where that is the only sentence having an effective balance of term. The need to provide an appropriate period on supervised parole may itself constitute a “special circumstance”, permitting the reduction of the non-parole period imposed for that sentence: Hejazi at [36]. However, that practice does not permit the imposition of a sentence for the last offence greater than that which is appropriate having regard to the circumstances of that offence and the offender.

Ground 2: accumulating fixed terms

36 The second ground of appeal need not be addressed. It was based on the premise that the sentencing judge had set fixed terms which reflected the appropriate total term for each offence, but then had accumulated the terms without taking into account the appropriate nominal non-parole periods.

37 Admittedly that approach would have demonstrated an error in accordance with the principles stated in Thomas, but to construe his Honour’s reasons in this way would constitute an artificial exercise which should not be undertaken.

Ground 3: sentence manifestly excessive

38 Under this ground, the applicant sought to challenge both the individual sentences and the overall effect of the sentencing exercise.

39 As the exercise set out above demonstrates, a fixed term of 50% of the maximum term means that the starting point for sentencing was the maximum term. Thus, even the four year sentences imposed on counts 2 and 3 commenced with a sentence of eight years, or 80% of the maximum.

40 The applicant submitted that these starting points were not appropriate for offences which did not fall within the worst category of case. The applicant identified the worst category as including multiple victims, sexual acts calculated to degrade the victim, longer periods of offending, the use of violence or threatening conduct or gratuitous cruelty and other considerations which may not strictly have been relevant to questions of objective seriousness. In addition, the applicant pointed out that four of the offences of sexual intercourse did not involve penile penetration.

41 There were also relevant subjective factors, taken into account by his Honour, but in a way which is not entirely clear. There is, accordingly, substance in the applicant’s complaint that his Honour was not justified in imposing sentences at or close to the maximum penalty for each offence.

42 One exception to this analysis is count 6, which involved taking into account a number of similar but serious offences listed on Form 1. That circumstance would have justified the imposition of a sentence towards the top of the permissible range, but not the sentence in fact imposed which, as notionally calculated above, exceeded the maximum penalty by six years.

43 Although views may differ as to the available range for sentencing in a case such as the present, the failure to explain why the sentences were notionally calculated from a point which must have been the maximum penalty or a figure close to it, required explanation. The objective factors justifying such an approach are not self-evident. Accordingly, the applicant has made good the first part of ground 3 (as well as ground 1) and it will be necessary for the sentences imposed to be set aside and for this Court to re-exercise the sentencing discretion.

44 The second limb to the complaint of manifest excess related to the overall period of mandatory imprisonment and sentence and thus invoked questions as to the proper extent of accumulation and the need to avoid a disproportionate overall punishment, having regard to the principle of totality. However, the inferences to be drawn from statistics in relation to similar cases are by no means clear. The permissible range appears to be broad. Because this Court is required to re-sentence the applicant in any event, it is unnecessary to determine at this stage whether the sentences imposed were or were not manifestly excessive.

Representative charges

45 Viewing each of the counts independently (other than count 6 which requires consideration of the seven offences listed on Form 1) there is little in the objective circumstances to justify characterisation of the offence as at a higher level than what is sometimes described as a mid-range offence. Again taking each offence in isolation, there were significant factors personal to the offender which warranted a degree of leniency. Of critical importance in these circumstances is the fact that the offences encompassed points in a course of conduct and were, as his Honour described them, “representative charges”.

46 The manner in which the course of conduct can properly be taken into account has been the subject of anxious consideration in a number of cases. In this Court, the principles established in R v JCW [2000] NSWCCA 209; 112 A Crim R 466 have been treated as authoritative and have given rise to little subsequent discussion. Nevertheless, one particular aspect of the reasoning of Spigelman CJ in JCW has recently been rejected by the Victorian Court of Appeal in The Queen v CJK [2009] VSCA 58 at [58]-[62] (Warren CJ, Vincent and Neave JJA agreeing).

47 There are two reasons why the problems generated by representative charges are intractable. One is that they involve a tension between the jealous protection properly afforded by the courts to the principle that no one should be punished for an offence without the conduct being proved beyond reasonable doubt, or admitted: Anderson v DPP [1978] AC 964 at 977-978 (Lord Diplock); Murrell v R (1985) 4 FCR 168 at 175 (Fox J, Bowen CJ agreeing); R v O’Connell [1993] 2 NZLR 442 at 443. On the other hand, there is a pragmatic consideration that the prosecution be able “to strike the proper balance between overloading an indictment, on the one hand, and, failing to reflect the alleged criminality by charging a limited range of counts, on the other hand”: JCW at [64] (Spigelman CJ). As will be noted shortly, the tension between these principles is capable of resolution.

48 There is, however, a further difficulty arising from common usage of language in this area. Thus, the cases commonly involve complaints that the sentencing judge has inappropriately treated uncharged offences as “a circumstance of aggravation”. That language, however, can have a range of meanings, including, on a rising scale of seriousness:

(1) conduct diminishing or removing a claim for leniency in sentencing;
(2) conduct affecting the objective seriousness of the offence;
(3) conduct engaging an increased maximum penalty, and
(4) conduct justifying a charge of a separate and more serious offence.

49 It is not in dispute that a course of conduct may be taken into account, if satisfactorily established, to deny an offender the benefits of leniency flowing from an assumption that the offences charged were isolated incidents. Beyond that, there lies an area of uncertainty. Section 21A(2) of the Sentencing Procedure Act identifies “aggravating factors” which may be taken into account in determining the appropriate sentence for “an offence”. They include:

“(m) the offence involved multiple victims or a series of criminal acts”.

50 This provision has itself given rise to difficulties. For example, where a number of offences have been charged, to treat the existence of other offences as an aggravating factor for one (or more than one) offence is to risk double punishment. Further, it should not be treated as an aggravating factor in circumstances where multiple offending constitutes an element of the offence charged: see R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 at [29] (Howie J); Smith v R [2007] NSWCCA 138 at [38]-[41] (James J, Campbell JA and Smart AJ agreeing). However, in Smith at [40], the Court accepted that where the offence of on-going supply required supply on three occasions, the fact that supplies had been established on about a dozen occasions constituted an aggravating factor. (There may be some ambivalence in Tadrosse as to the circumstances in which paragraph (m) operates, but the matter of principle appears to be accepted.)

51 It is undoubtedly important that where a charge is treated as “representative” of a broader range of conduct, two further criteria must be fulfilled, namely:

(a) the conduct relied upon by the prosecution is identified with a degree of precision, and
(b) the trial judge is satisfied that the conduct so specified is either proved or admitted by the offender.

The purpose of requiring a degree of precision is to ensure that the offender understands what he or she is conceding and the Court understands what it is taking into account: see, JCW at [63] and [67].

52 The last-mentioned purposes can, to an extent, be satisfied by the use of statutory provisions permitting outstanding charges to be taken into account: cf Sentencing Procedure Act, s 33 and the use, adopted in this case, of a “Form 1” listing other offences which the offender may invite the Court to take into account. Such a procedure will ensure that the offender is conscious of the precise matters to which he or she is admitting guilt and that the Court has identified offences before it. However, that procedure has its limitations. Such offences can only be taken into account once in relation to a specified offence and do not in terms involve an overall course of conduct.

53 A further possibility is to charge the offender with an offence which expressly envisages a course of conduct. In relation to sexual offences of the kind in question in the present case, a charge may be laid of persistent sexual abuse of a child where the person has engaged in conduct constituting sexual offences on three or more separate occasions: Crimes Act, s 66EA. The maximum penalty for such an offence is 25 years imprisonment although the approach to sentencing in such a case has been said to require an outcome no more harsh than that which would have resulted from sentencing for the same course of conduct “crystallised into convictions for a number of representative offences”: see R v Fitzgerald [2004] NSWCCA 5; 59 NSWLR 493 at [13] (Sully J, Barr J and Newman AJ agreeing) following a lengthy extract from R v D (1997) 69 SASR 413. In Fitzgerald, Sully J continued at [15]:

“If that sentencing approach be applied to the given facts of the respondent’s case, then the picture which emerges as to the objective criminality of the section 66EA offence, is to the following effect:
A pattern of sexual abuse extending over a 7 month period.
A component of that pattern in the form of seven identified instances of such abuse, each of those instances being serious but not in the worst case category.
A complementary component of the pattern in the form of other instances of abuse which could not be precisely identified or particularised.
Aggravating circumstances, some of which were admitted and others of which were not admitted.
An awareness on the part of the offender that what he was doing was wrong; coupled with reactions of revulsion which had led him to make an attempt on his own life.”

54 There are several ways in which the course of conduct, involving criminal activity extending beyond the charges and the matters mentioned on the Form 1 could, in principle, be taken into account. They are:

(a) uncontroversially, to deny the offender any degree of leniency which might have followed had the charged offences been isolated episodes;
(b) to allow the injury, emotional harm, loss or damage to the victim to be assessed globally, as resulting from the course of conduct, rather than discriminating (if that were possible) between degrees of harm caused by the charged offences and the whole of the harm;
(c) to put each of the individual offences into a higher range of objective seriousness than would otherwise be the case, and
(d) to increase the degree to which the sentences are accumulated.

55 It should be noted at once that none of these steps would permit the imposition of a penalty beyond the maximum sentence permitted for each of the charged offences.

56 The real issue in this case is whether it is appropriate to take a course of conduct into account, to the extent it has been admitted, in order to place the individual offences in a higher range of objective seriousness than would otherwise be the case. In Victoria, that approach appears to have been accepted on the basis that it “enables the offence to be seen in its full circumstantial context”: see, eg, Director of Public Prosecutions v EB [2008] VSCA 127; 186 A Crim R 314 at [15] (Nettle JA, Buchanan and Redlich JJA agreeing).

57 In CJK, at [58] Warren CJ expressed the view that the sentencing judge was entitled to look at the whole of the conduct and continued:

“If those circumstances render the offence more serious and lead to a higher sentence than would otherwise have been imposed in the absence of the representation, then it is not unreasonable or erroneous to observe it as an aggravating feature, even if only ‘colloquially’.”

58 Her Honour then referred to the comments of Spigelman CJ in JCW at [68] which appear to restrict the use of the broader course of conduct to rejection of a claim to mitigation. She expressed the view that this was not in accordance with the law in Victoria: at [60]. Her Honour also noted the “sound policy reasons” for the judge to look at the whole picture of offending in order to ensure “the impact of the victim of that count is adequately reflected in the sentence imposed”: at [61]-[62].

59 In Fisher v R [2008] NSWCCA 129 Simpson J (McClellan CJ at CL and Hidden J agreeing) referred to the statement in JCW at [68] and remarked, at [19], that Spigelman CJ had “concluded that, even where such conduct is admitted, it is appropriate to be taken into account only for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence; and not as a circumstance of aggravation”: see also Haeusler v The Queen (19 July 1996, WASC, CCA, unrep) (Ipp and Wallwork JJ, Owen J agreeing).

60 In Fisher, reference was made to s 21A(2) of the Sentencing Procedure Act, but without reference to paragraph (m) and without reference to the fact that JCW pre-dated the commencement (on 1 February 2003) of s 21A.

61 There are three aspects of JCW which need to be taken into account. First, it is not entirely clear that JCW stands for the proposition stated explicitly in Fisher in the passage set out above, or for the similar proposition identified by Warren CJ in CJK. It is clear that in JCW the nature of the material to be taken into account was uncertain; there was no clear admission of particular incidents. Therefore, Spigelman CJ treated the more general question as not requiring a definitive answer, stating at [63]:

“In my opinion, to use such matters as a circumstance of aggravation, if permissible at all, requires, at the least, sufficient particularisation so that the sentencing judge can tell with precision what range of conduct the charges admitted to be ‘representative’ are in fact representative of. The extent, if any, to which an admission, other than in the context of the statutory procedure to which I have referred above, can be taken into account as a matter of aggravation, should be carefully confined.”

62 A similar and consistent caution is expressed at paragraph [68] which, to be properly understood, must be read in context with the preceding paragraphs.

“66 It is not, however, necessary, to express a concluded opinion about whether, and if so how, admissions of uncharged offences can be taken into account by way of aggravation, other than pursuant to an express statutory scheme. (In my opinion, the reasoning in Siganto suggests, by way of analogy, that such use is not permissible). The reason why it is not necessary to decide the issue in this case is because the admission on the part of the Applicant did not have the necessary degree of precision.
67 In the present case there was an express admission on the part of the Applicant that the particular counts with respect to daughter DW were ‘representative’. That admission extended to an admission of the general nature of the relationship as set out in the uncontested evidence of DW. I do not, however, conclude that the admission extended to any, let alone each, of the specific allegations contained in DW’s evidence.
68 An admission of this general character is appropriate to be taken into account for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence. It is not, however, in my opinion, appropriate to be taken into account as a circumstance of aggravation, if that be permissible at all.”

63 It may thus be seen that his Honour was not addressing (and was careful not to address) the situation where specific conduct was identified and was the subject of an appropriate admission, or proof. Although his Honour clearly had doubts as to the extent to which, even in such a case, particular matters could be taken into account, that was not determined in JCW.

64 Secondly, it is important to consider how such specific matters might operate in relation to particular aggravating factors identified in s 21A. That issue has already been noted in relation to paragraph (m) and, in relation to the effect on the victim, referred to in paragraph (g).

65 Thirdly, it is necessary to take into account the extent to which the enactment of s 21A(2) has affected the reasoning in JCW, if at all. The effect may be limited, because the section expressly provides that the court is “not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so”: sub-s (4).

66 Finally, it may be noted that the doubt expressed in JCW as to whether, and if so how, an admission of an uncharged offence can be taken into account by way of aggravation, other than pursuant to an express statutory scheme, arose from the reasoning in Siganto v The Queen [1998] HCA 74; 194 CLR 656. The analogy of Siganto must be subject to a qualification. That case drew a distinction between a reduction in an otherwise appropriate sentence because of a plea of guilty and treating a plea of not guilty as an aggravating circumstance. The distinction is readily applied because the plea entered by an accused is to be differentiated from the objective circumstances of the offence. Thus, an otherwise appropriate sentence may be identified without regard to the plea, following which an appropriate reduction may be allowed on account of a plea of guilty. That exercise is not so easily applied in relation to the surrounding circumstances of a crime. Nor is it just that “the distinction between refraining from taking something off and adding something on when there is no fixed normal penalty may seem, in some cases, to approach the metaphysical”, as suggested by Bray CJ in Reiner (1974) 8 SASR 102 at 105, quoted in JCW at [17]. Rather it is because the surrounding circumstances are themselves relevant to the objective seriousness of the offence and, possibly, the subjective circumstances of the offender. It is not, therefore, possible to identify an appropriate sentence before taking them into account.

67 The fact, which is not in dispute, that the applicant committed numerous additional offences, similar to those charged, is relevant to his state of mind in committing the offences charged, his motive, his sense (or absence of sense) of wrongdoing at the time, his willingness to control inappropriate urges for sexual gratification, the effects on the complainant of his conduct and by way of explanation of the fact that the conduct went undetected for a significant period.

68 Even if these offences were understood not each to be an isolated offence, their objective seriousness did not place them above the middle range of offending of the kind in question. In my view the fact that they constituted part of an on-going course of conduct places them in the higher range, although certainly not in the worst category of cases.

Application of principles

69 In relation to the first offence, and partly because it was the first offence, absent the surrounding circumstances, it would not have warranted a penalty in excess of half the maximum, namely 2.5 years. However, taking into account the preceding circumstances, described by the sentencing judge as “grooming”, the nature of the offence becomes more serious. In my view a sentence of three years imprisonment properly reflects the objective seriousness of the offence. Because of the early plea, and for the reasons identified by the trial judge which are not challenged in this Court, it is appropriate to reduce the sentence by 25%. That would give a notional sentence of 27 months. Because of the finding of special circumstances, I would specify a non-parole period of two-thirds of that amount, allowing an increase in the balance of the term from one-third of the non-parole period to one-half of that period. Accordingly, the non-parole period should be fixed at 18 months. Because any balance of the term will inevitably be covered by a further sentence of mandatory imprisonment for one or more of the other offences, it is appropriate to make that a fixed term. Accordingly the applicant should be sentenced to a period of 18 months imprisonment by way of a fixed term commencing on 4 August 2007 and expiring on 3 February 2009.

70 As has been noted, counts 2-8 each involved aggravated sexual intercourse of a child between 10 and 16 years, for which a maximum penalty of 10 years imprisonment is provided by s 66C(2) of the Crimes Act. Counts 2 and 3 involved digital, rather than penile, penetration and were properly treated by the sentencing judge as of lesser seriousness than counts 6, 7 and 8, each of which involved penile penetration. Taken without reference to the surrounding circumstances, counts 2 and 3 involved unremarkable offences of that kind and would not have warranted a term of imprisonment in excess of four years. Given the surrounding circumstances, a more serious view should be taken of the offences and a sentence of five years imprisonment should be considered appropriate. In taking that view, no specific consideration is given to the offences numbered 1, 2 and 5 on the Form 1, which occurred during 1996, being the same year as counts 2 and 3. Undertaking the same calculations and for the same reasons as explained in relation to count 1, a fixed term of 2.5 years should be specified in respect of counts 2 and 3. (Questions of dates of commencement and expiry will be identified when considering the extent of accumulation which is appropriate in relation to these and other counts.)

71 Counts 4 and 5 involved respectively fellatio and cunnilingus. The former count is more serious, both because it required the complainant to play an active role and because there was a degree of persuasion required, she having expressed disgust at the proposed conduct. Count 4 is clearly a mid-range offence, disregarding the surrounding circumstances, the degree of persuasion required involving no physical violence. However, the surrounding circumstances render the offence more serious, warranting a sentence of six years. Once the deduction for the plea is taken into account and allowance is made by way of adjustment of the relationship between the balance of the term and the non-parole period, the resulting sentence is a fixed term of three years.

72 In relation to count 5, there is another episode of cunnilingus referred to on the Form 1, but there are no clear admissions of any other conduct of that kind. To avoid any risk of double punishment, the offence should be treated as one in the middle range, warranting a sentence of four years. According to the calculations already undertaken, that would give rise to a fixed term of two years imprisonment.

73 It is convenient to deal next with counts 7 and 8, each of which involved penile penetration. Count 7 involved an element of aggravation in that, prior to sexual intercourse, the applicant plied the complainant with liquor. Following the sexual activity, the complainant went to bed and vomited, a response which may properly be attributed to the liquor. Nevertheless, the circumstances involved an element of aggravation taking the offence above the middle of the range and justifying a sentence of six years imprisonment. On the approach adopted above, that will translate into a fixed term of three years imprisonment.

74 Count 8 involved a further case of sexual intercourse. By that stage, the applicant was 14 and a half years of age and thus older than on the previous occasions, but still below the age of 16 years specified as an element of the offence. Once the surrounding circumstances are taken into account, the applicant is not entitled to any degree of leniency on that basis, although counsel submitted he was. More importantly, the sexual intercourse occurred with her sitting on his lap and only continued for about a minute; he did not ejaculate. The short period of the event place this offence below the middle range for such crimes. Taking into account the surrounding circumstances a period of three years imprisonment is warranted, translating into a fixed term of 1.5 years.

75 There remains count 6, which involved a case of penile vaginal intercourse. The complainant was just 14 years old at the time of the offence. The offence involved the offender lying on top of the victim and ejaculating inside her. In terms of objective seriousness, it may be treated as a mid-range offence. Chronologically, it appears to have been the first incident of penile intercourse.

76 There were six offences of varying degrees of seriousness included on the Form 1. It is not necessary to describe them in detail. They extended over a period from February 1996 to late 1998. Individually, they would have carried similar sentences to those for similar counts. Taking those matters into account, a sentence of eight years imprisonment would be justified in respect of count 6. However, that sentence should be reduced by 25% on account of the guilty plea, giving a full term of six years. The appropriate non-parole period is four years. That being the longest sentence, it is appropriate that it be imposed last and include a balance of the term of the sentence of two years.

Accumulation

77 The structure of the sentences imposed by the sentencing judge involved count 1 being wholly concurrent with count 2 and count 5 being wholly concurrent with count 6. Otherwise each of counts 3, 4, 6 and 7 were accumulated by commencing one year after the commencement of the previous count, whereas count 8 although involving a non-parole period of three years, was accumulated by commencing four years after count 7, but the non-parole period was wholly concurrent with the fixed terms on counts 6 and 7. The effective period of mandatory imprisonment was 11 years.

78 The total of the proposed fixed terms and the non-parole period would be 20 years if each were accumulated on the end of the preceding count. There should be a degree of accumulation for each, so as to require the applicant, in rough terms, to serve not more than 50% of each fixed term or non-parole period independently of any other sentence. That will require a greater degree of concurrency with count 6. The proposed effect will be to require a mandatory term of nine years six months imprisonment with a balance on the last sentence of two years, giving a total period of 11 years, six months. The sentence for the first offence will commence on 4 August 2007 with the result that the applicant will be eligible for parole on 3 February 2017.

79 Whilst that constitutes a lengthy period of mandatory imprisonment, the reduction of one year, six months from the term imposed by the sentencing judge removes any basis for argument that the sentences either individually or in their totality are manifestly excessive.

80 I propose the following orders:

(a) Grant leave to appeal against sentence.

(b) Quash the sentences imposed in the Sydney District Court on 11 April 2008.

(c) Sentence the applicant as follows:


Count 1: Fixed term of 1.5 years imprisonment to commence on 4.8.07 and to expire on 3.2.09.

Count 2: Fixed term of 2.5 years imprisonment to commence on 4.2.08 and to expire on 3.8.10.

Count 3: Fixed term of 2.5 years imprisonment to commence on 4.2.09 and expire on 3.8.11.

Count 4: Fixed term of 3 years imprisonment to commence on 4.2.10 and expire on 3.2.13.

Count 5: Fixed term of 2 years imprisonment to commence on 4.2.11 and expire on 3.2.13.

Count 7: Fixed term of 3 years imprisonment to commence on 4.2.12 and expire on 3.2.15.

Count 8: Fixed term of 1.5 years imprisonment to commence on 4.2.13 and expire on 4.8.14.

Count 6: Taking into account the matters on form 1: a full term of 6 years imprisonment to commence on 4.2.13 and expire on 3.2.19 with a non-parole period of 4 years, commencing on 4.2.13 and expiring on 3.2.17.

81 For the purpose of s 48(1) of the Sentencing Procedure Act, the earliest date on which the applicant will be eligible for release on parole is 3 February 2017.

82 RS HULME J: In this matter I have had the advantage of reading the Reasons for Judgment of Basten JA. Subject to one matter, I agree with his Honour’s remarks in paragraphs [1] to [43] of those Reasons. That one matter, contained in paragraph [34], relates to Finnane DCJ’s decision to make the balance of term 5 years.

83 So far as is presently relevant, section 44 of the Crimes (Sentencing Procedure) Act provides:-

(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

84 While the section makes it clear that the specification of a non-parole period and balance of term must be as part of the order relating to a specific charge or offence, there is nothing in the section to preclude taking into account that the sentence in the course of which such specification occurs is but one of a number of sentences being imposed and accumulated, on that account making a finding of “special circumstances” and, in that sentence, enlarging the balance of term at the expense of the non-parole period. It is something that judges in both the District Court and this Court have done for years.

Representative Charges

85 The topic of representative charges has been the subject of innumerable references in this Court and I regard it as settled law in this State that conduct similar to that encompassed by the charges brought, but not itself the subject of charges, may not be taken into account so as to result in the imposition of a sentence higher than would be merited by the conduct charged. Authorities to this effect include R v Holyoak (1995) 82 A Crim R 502; R v E D (unreported, NSWCCA, 22 November 1996) at page 10; R v JCW [2000] NSWCCA 209; 112 A Crim R 46; R v MH [2001] NSWCCA 117 (a 2 judge bench consisting of Wood CJ at CL and Greg James J, and wherein there is reference to a number of earlier authorities); and Fisher v R [2008] NSWCCA 129.

86 While such conduct is relevant to deny the leniency that might be afforded if the conduct charged were regarded as an aberration or isolated, in light of what has been said in those authorities and others I see no basis for qualifying the basic approach by regarding the uncharged conduct as relevant to subjective features of an offender and thereby inspiring a higher sentence. I see no grounds for regarding the “surrounding circumstances” or the fact that the offences charged were only some of those committed by the Applicant as a reason for imposing penalties higher than otherwise appropriate.

87 Subject to that qualification I agree generally with what, under the heading “Application of Principles”, Basten JA has said as to the circumstances and relative seriousness of each offence. The qualification however leads me to the view that the appropriate length of individual sentences should generally be less than his Honour proposes. The length of the individual sentences should be:-

Count 1 1½ years fixed term
Count 2 2 years fixed term
Count 3 2 years fixed term
Count 4 2½ years fixed term
Count 5 2 years fixed term
Count 6 6 years including a non-parole period and balance of term
Count 7 3 years fixed term
Count 8 2 years fixed term

88 The sentences I propose for counts 7 and 8 reflect the fact that the penetration was penile. Although in the case of count 8 that penetration was brief, I still regard it as sufficiently serious as to merit no lesser sentence than in the case of counts 2, 3 and 5.

89 The principle of totality means that the sentences should not simply be accumulated. I am of the view that the total period of incarceration should be 8 years. That of course involves a very substantial reduction from simple accumulation but in response to any suggestion that the period of custody I propose is too lenient, it should be noted that it is almost twice as long as the period during which the complainant was subject to the Applicant’s abuse and although of course the emotional consequences of that abuse did not stop when the offences did, it is certain that the Applicant will also carry the scars of imprisonment for the rest of his life. Eight years in jail is a long time.

90 In arriving at the period of 8 years, I am influenced also by the result and remarks in a number of decisions to which the Court was referred. In one of these, R v Dawson [2000] NSWCCA 399, I made an extensive review of a number of previous cases to some of which it is convenient to refer.

91 In R v H (1994) 74 A Crim R 41, after a substantial review of previous authorities, this Court reduced to an effective term of 11 years imprisonment (including a non-parole period of 8 years) a sentence imposed on an offender who had pleaded guilty to 11 offences, 2 of sexual intercourse and others of various acts of indecency. The victim of 10 of the offences was the offender’s daughter and the offences ranged over “practically the whole of her life” - the period between when she was aged 1 and aged 12. The eleventh offence was an indecent assault committed against a young female friend of the daughter. As in this case, the offences charged were representative.

92 In R v RWC (unreported, NSWCCA, 4 August 1994) this Court held that sentences involving a minimum term of 12 years and an additional term of 3 years were not excessive even though cumulative to a further sentence which meant the Appellant’s time in prison would exceed 13 years. The offences under consideration had occurred over two periods 1984 to 1986 and 1990 to 1992. Twelve offences involved penile penetration, 9 involved digital penetration and 3 involved indecent assault. The ages of the 4 victims varied from 8 years to 15 years. Two were the Appellant’s daughters and the Appellant had threatened at least some of the victims saying he would kill or hurt them. At the time of commission of 14 of the offences, the Appellant was on bail awaiting trial in respect of a similar offence.

93 In R v E D (unreported, NSWCCA, 22 November 1996) the Appellant was sentenced in respect of 15 offences, including 9 of sexual intercourse, against 2 daughters, the offending occurring over the period 1982 to 1994. The offences involving daughter B began when she was 8 or 9 and continued until she was 20. Those involving daughter A commenced when she was 10 and continued until she was 21. Again the offences charged were representative. One of the offences, because of the age of the victim, carried a maximum penalty of 14 years. This Court reduced the effective sentence from 16 years (including a non-parole period of 13 years) to one of 13 years (including a non-parole period of 10 years). In that case the Court observed:-

“The Crown presented the court with a schedule … listing forty-four cases of offences by fathers and stepfathers against daughters or stepdaughters deal with by this court from 23 July 1991 to 10 June 1996. Although it is not possible to make any direct comparisons between any one of the cases in the schedule and the present case, and although I think it is quite inadmissible to consider the question whether the sentence in the present case was manifestly excessive by a simple comparison of a few selected facts (which is all the schedule contains) from one or more of the cases, with the facts of the present case, I have no doubt that even the scanty material in the schedule is very helpful in showing the overall trend of this court’s approach to the range of appropriate sentencing in the present kind of case. The trend and the range are at a somewhat lower level than that arrived at by the sentencing judge in the present case. Many of the cases involve continuing abuse over periods comparable to those in the present case and also involving more than one victim. All the cases except one resulted in significantly lower sentences than that in the present case. The exception was R v H (CCA, 24 October 1994, unreported). That case involved a father, a daughter and a stepdaughter, offences over a fifteen year period and sadistic and other violent and degrading behaviour. Bad as the present case is, by all ordinary standards the case of H was very significantly worse.”

94 In R v Lovatt (unreported NSWCCA 29 July 1988) the Appellant, who had no significant record, pleaded guilty to:-

(i) Three counts of indecent assault and three of sexual intercourse involving digital penetration or cunnilingus on a stepdaughter aged 11.
(ii) Two counts of indecent assault and one of sexual intercourse involving digital penetration of another stepdaughter aged about 8.
(iii) Two count of indecent assault and two of fellatio with his stepson aged 8.

95 The offences occurred over a period of about 3 years between 1984 and 1987 and the Appellant’s actions were regarded as a continuous act of serious misconduct. Observing that the Appellant had also suffered the loss of the trust of his family and of their companionship and that itself was a "serious punishment" this court reduced the sentence imposed to one of a total period of 6½ years with a non-parole period of 3½ years.

96 In Lupton v R [2003] NSWCCA 200, there were 3 step-daughter victims and 33 counts involving conduct during the period January 1990 to July 1999. 15 counts involved sexual intercourse and 2 of these carried a maximum penalty of 20 years. The offender was not regarded as remorseful. This Court described the overall sentence of 10 years including non-parole periods totalling 8 years as moderate.

97 In R v TWP [2006] NSWCCA 141 the victims were 3 daughters of the offender. There were 17 counts including 12 of sexual intercourse, each of the victims suffering that imposition. In allowing a Crown appeal, this Court imposed sentences totalling 16 years including non-parole periods totalling 12 years. Ten offences involved daughter A and took place over a 16 year period commencing in 1984. The 5 that involved victim B occurred over a little more than 3 years commencing in 1997 and the 2 involving victim C over a period of a few weeks in about 2000. In the case of victims A and B, the charges were representative. The Court recorded that the sentences were at the lowest end of the available range.

98 Given the substantial review that inspired the sentence in that case, R v H argues strongly for the sentence I propose. Clearly, the other cases mentioned are not on all fours with the instant one but the Court was not referred to, and I have not found, any that provide better guidance. Obviously, in most of those other cases the effective non-parole periods have been substantially higher than the effective non-parole period that I propose here but when in considering them one has regard to the number of victims, to the number of offences and to the periods during which offending was occurring, those cases argue against the non-parole period imposed on the Applicant being greater than the 8 years I propose.

99 Finnane DCJ found special circumstances. They clearly exist in both the fact that the Applicant has not previously been imprisoned and the accumulation of sentences. However given the findings about the Applicant’s prospects of rehabilitation, I see no need for the balance of term to be particularly long. In these circumstances, the sentence I would impose on the sixth count would include a non-parole period of 4 years and a balance of term of 2 years. However, as mine is a minority view, it is unnecessary that I formulate formal orders to give effect to my conclusions.

100 JOHNSON J: I have had the advantage of considering the draft judgments of Basten JA and RS Hulme J in this matter. It is not necessary to repeat the recital of facts in this judgment.

101 The Crown conceded that the sentences imposed in the District Court were affected by error. I agree with Basten JA and RS Hulme J that it is necessary for this Court to resentence the Applicant.

102 I find the reasoning of Basten JA concerning sentencing for representative counts persuasive. The Victorian line of authority cited by his Honour has been applied in more recent decisions of the Victorian Court of Appeal - Director of Public Prosecutions v CPD [2009] VSCA 114 at [36]-[44] and R v LFJ [2009] VSCA 134 at [7]-]11].

103 However, in my view, there are difficulties in deciding this application on that basis. Firstly, the submissions of the parties on this topic did not move beyond reference to R v JCW [2000] 112 A Crim R 466 (T6.28, 13.12, 22 July 2009). Counsel did not refer to the Victorian authorities relied upon by Basten JA. In circumstances where the reasoning of Basten JA on this issue would operate in a manner adverse to the Applicant on sentence, this Court should not resolve the present application upon that basis, without hearing the parties on this question. Secondly, the approach to sentencing for representative counts is a matter of general importance to the administration of criminal law in this State. Before this Court considers a change in the approach to sentencing in this area, in particular in a manner adverse to offenders, it is appropriate that the Court have the benefit of submissions from the Crown and an offender who is on notice of the relevant line of Victorian authority.

104 For these reasons, I do not join with Basten JA’s analysis concerning the approach to sentencing for representative counts. This issue should await determination by this Court in an appropriate case, where the Court has the assistance of submissions from the parties.

105 Basten JA and RS Hulme J have reached different conclusions concerning the sentences which ought be imposed upon the Applicant by this Court. It is necessary to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved: R v AEM [2002] NSWCCA 58 at [70]; R v Knight (2005) 155 A Crim R 252 at 272 [112].

106 In my view, the sentences proposed by Basten JA are appropriate, and the total effective sentence proposed by his Honour represents a proper period of incarceration for the totality of the Applicant’s criminality. I am conscious that Basten JA determined upon these sentences after taking into account, at various points, the “surrounding circumstances” in a manner with which I do not join in this case.

107 I am satisfied, however, that the individual sentences, and their total effect, are appropriate in the circumstances of these offences and this offender, with the imposition of sentences for representative counts being approached in accordance with R v JCW at 478 [68]. These were serious crimes committed against a vulnerable victim over an extended period of time. An order that the Applicant not be eligible for release on parole until 3 February 2017 reflects a proper assessment of the minimum term of imprisonment which the Applicant should serve for his crimes.

108 I agree with the orders proposed by Basten JA.

Following the delivery of judgment on 18 December 2009, it has come to the Court’s attention that in resentencing the applicant in relation to Count 8, the expiry date was erroneously identified as 4 August 2014, but should have been 3 August 2014. The earlier sentence in relation to Count 8 is varied so that it provides:

Count 8: Fixed term of 1.5 years imprisonment to commence on 4.2.13 and expire on 3.8.14.

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11/02/2010 - Incorrect date in sentence re Count 8. - Paragraph(s) 109 and coversheet