GSH v R; R v GSH

[2009] NSWCCA 214

Appeal Outcome: Special leave dismissed by the High Court 10 March 2010 (S277/2009)

New South Wales

Court of Criminal Appeal

CITATION:	GSH v R ; R v GSH [2009] NSWCCA 214
HEARING DATE(S):	27 May 2009
JUDGMENT DATE:	25 August 2009
JUDGMENT OF:	Giles JA at 1; Howie J at 2; Latham J at 3
DECISION:	1. Dismiss the appeal against conviction. 2. Allow the Crown appeal against sentence. 3. The sentences imposed on 19 September 2008 are set aside. 4. On each of count 1 and count 4, a non parole period of 2 years and 6 months is imposed, to date from 19 March 2007, expiring 18 September 2009, with a balance of term of 10 months, expiring 18 July 2010. 5. On count 2, a non parole period of 5 years is imposed, to date from 19 March 2008, expiring 18 March 2013, with a balance of term of 18 months, expiring 17 September 2014. 6. The respondent is eligible for release on 19 March 2013.
CATCHWORDS:	CRIMINAL LAW - conviction appeal and Crown appeal against sentence - aggravated indecent assault - whether verdicts are unreasonable and cannot be supported by the evidence - time of the essence - whether inconsistencies in accounts given by 9 year old complainant over the course of three interviews give rise to a reasonable doubt that offences occurred on specified date - quality of interview process - error in length of standard non parole period - error in imposing fixed term for offence with standard non parole period - manifest inadequacy.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Amendment Act 2007
CASES CITED:	M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Burrell v R [2009] NSWCCA 193 Zaphir v R [2009] NSWCCA 124 SKA v R ; R v SKA [2009] NSWCCA 186 R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628 Kershaw v R [2009] NSWCCA 19 R v Terkmani [2009] NSWCCA 142 Ivimy v R [2008] NSWCCA 25 SGJ v R [2008] NSWCCA 258
PARTIES:	GSH - Appellant Regina - Crown
FILE NUMBER(S):	CCA 2007/00013512
COUNSEL:	T Game SC - Appellant N Noman - Crown
SOLICITORS:	S Kavanagh (Solicitor for Public Prosectuions) - Appellant Steve O'Connior (Legal Aid Commission) - Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/21/3291
LOWER COURT JUDICIAL OFFICER:	Coorey DCJ
LOWER COURT DATE OF DECISION:	19 September 2008

2007/00013512

GILES JA
HOWIE J
LATHAM J

25 AUGUST 2009

G S H v REGINA

REGINA v G S H

Judgment

1 GILES JA : I agree with Latham J.

2 HOWIE J : I agree with Latham J.

3 LATHAM J : The appellant was convicted after trial on three counts (counts 1, 2 and 4 on the indictment) of Aggravated Indecent Assault pursuant to s 61M(2) of the Crimes Act 1900, each carrying a maximum penalty of 10 years imprisonment and a standard non parole period of 8 years. The appellant was acquitted on a count of Sexual Intercourse with a Child under 10 years of age (count 3).

4 On count 1, the appellant was sentenced to a non parole period of 2 years and 6 months with a balance of term of 10 months. On count 2, the appellant was sentenced to a non parole period of 4 years, with a balance of term of one year and 4 months. These sentences were concurrent. On count 4, the appellant was sentenced to a fixed term of 2 years and 6 months, commencing three months after the commencement of the other sentences. The aggregate sentence was 5 years and 4 months imprisonment with an aggregate non parole period of 4 years and 3 months.

5 The appeal against conviction is on the sole ground that the verdicts are unreasonable and cannot be supported having regard to the evidence. The Crown appeals against the asserted manifest inadequacy of the sentence, in addition to alleging three specific errors in the sentencing process. So far as leave to amend the manifest inadequacy ground originally filed by the Crown is necessary in order to rely upon the specific errors, it should be granted.

The Evidence at Trial

6 The complainant’s evidence in the trial consisted of three video-recorded interviews, conducted on 5, 9 and 30 May 2006, and the cross-examination. The first two lengthy interviews were conducted by a Department of Community Services officer, and the last was a very brief interview conducted by a police officer. It is relevant to observe that the interviews took place three months after the alleged assaults and that there was a significant gap between the second and third interviews.

7 Before dealing with the content of the complainant’s evidence, some appreciation of the other evidence in the trial is necessary in order to place the complainant’s evidence in its proper context.

8 The complainant, EM, lived with her mother, KM, and two siblings, who are the children of a relationship between KM and MJ that ended in 2002. During that relationship, KM, MJ, EM and her siblings would visit MJ’s mother (ST) at her house in Raby on weekends. After the relationship ended, MJ continued to take all three children to his mother’s house every second weekend (access weekends), either on Saturday or Sunday, together with his new partner BG.

9 The appellant moved into the house at Raby in November 2005. From about that time, he minded the children for periods of time during those weekend visits whenever MJ and BG wanted to go out. EM came to refer to the appellant as Uncle Greg.

10 As a result of these visits, EM became friendly with a girl called Taren who lived with her father, Peter, next door. EM and Taren would often play together on the weekends EM was at Raby, including swimming in the pool in the backyard of ST’s house. EM said that on some of these occasions when she asked if she could go over to Taren’s house to play, BG refused permission.

11 The weekend commencing Friday 17 February 2006 was one of MJ’s access weekends. He picked the children up on Friday evening from their mother’s and took them to his home. In the evening of 18 February 2006, a 40^th birthday party was held for a member of the extended family at Smithfield. KM, MJ, BG, EM and the other children attended the party. MJ, BG, EM and the younger children left the party at about 10pm.

12 On Sunday 19 February 2006, EM, who was then 9 years of age, attended a family barbecue with MJ, BG and her siblings at ST’s home in Raby. A number of other members of the extended family were also there, including the appellant.

13 There was some conflict in the evidence relating to the circumstances surrounding EM’s arrival at ST’s house. MJ said that EM was in one of two cars that travelled from his home to ST’s house, arriving there about 1pm. BG’s evidence was that EM had not travelled to the Raby house with her or with MJ, because EM had stayed Saturday night with MJ’s brother’s family. BG said that she arrived at about midday and EM was already there, playing in the pool with the other children. BG’s mother made a statement which was read to the court. The statement indicated that the children travelled with MJ and BG to ST’s house and that it was the only time she had been to ST’s house when all MJ’s children were there. BG’s grandmother, Nona, was with them. BG’s mother recalled the children changing and swimming in the pool after their arrival. After lunch, the children went inside to watch DVDs.

14 MJ’s brother thought that the girls, including EM, may have slept at his house on Saturday night, but had no recollection of that particular Sunday barbecue because “it was a very regular occurrence at the time that we were going around to my mother’s house for a barbecue on either the Saturday or the Sunday.”

15 The complainant's first interview began with her account of what had occurred between herself and the appellant at ST’s house, without reference to dates, days of the week or times. However, EM described the following events in terms of their occurrence on the one day.

16 During the morning, EM went into the lounge room to watch TV. She sat on “the big lounge”. The appellant was sitting on a small lounge in the lounge room, adjacent to a table and a laptop computer. The appellant asked EM to come over and tell him what she had been doing at school. She moved over and sat on the appellant's lap in a sideways position. She started to play solitaire on the laptop computer, whereupon the appellant started to touch her underneath her singlet top, that is, on her chest or her “boobs” with his fingers. The appellant’s hand was open and he was rubbing up and down her chest, over her nipples. This evidence was the subject of count 1 on the indictment.

17 After this incident, the appellant and EM watched “the Simpsons” cartoon on Foxtel. This broadcast was confirmed by the evidence of an employee of Foxtel as a regular program on both Saturdays and Sundays from 9am to midday. EM then went outside to play. EM said that she went over to the fence and was talking to her best friend, Taren. EM went back inside to ask MJ for his permission to play at Taren's place. BG told her that she could not go next door and there was a short argument between EM and BG. This aspect of EM’s evidence was confirmed by MJ, who remembered that the reason for refusing permission to EM for the visit to Taren’s home was the fact that Taren's father was in hospital. ST also gave evidence of EM going over to Taren’s when she was told not to do so because Taren’s father was away.

18 According to EM, MJ gave his permission and she went next door, where she played with the family pet, had lunch and then returned to the family barbecue. Upon her return, she went into the lounge room where the appellant was seated on a small chair watching television. The appellant again asked her to come and sit on his lap and tell him a bit more about her school. The appellant then touched her "down the bottom", which was ultimately clarified as the outside of her vagina. This was the subject of count 2 on the indictment. EM also said that the appellant touched her on the inside of her wee (count 3) and touched her again on her “boobs” (count 4). EM said that, at this stage, everyone else was outside, including MJ, BG, BG’s mother and BG’s grandmother (Nona).

19 Later that afternoon, EM was returned to her mother’s home. She disclosed the assaults to her mother “two weekends after it happened”, on a Monday, when she had dancing lessons. KM gave evidence of a conversation with EM on Monday 20 March 2006, wherein EM told her that Uncle Greg “touches her on her boobs”. That date was four weekends after the barbecue at ST’s home.

20 At the very end of the interview (Q816 to Q858), EM was questioned about the day these events took place. Her response was that one Friday when MJ picked her up from her mother’s house, she had stayed that night with MJ and BG, but had gone to ST’s house on Saturday where she had slept over. EM said that the next day was Sunday. She then referred to the fact that she knew that the day she told her mother was a Monday because she had dancing on a Monday and they were in the car at the time. The interviewer, however, misinterpreted that remark as a reference to the day of the assaults. These questions and answers highlight the confusion :-

Q. So when did this, when did Uncle Greg touch you on your chest and on your bottom, which day was it ?
A. Sunday
Q. Sunday okay yes okay. E because I wasn’t there and I don’t remember when it exactly happened, you’ve given me three days and you said Monday at first, then you said no he touched you on a Saturday and then you said he touched you on a Sunday ?
A. He touched me on a Saturday and a Sunday.

21 A short time later, EM said that it was the Sunday that the appellant had touched her on the top and on the bottom, because it was on the Sunday that she went over to Taren’s.

22 During the second interview four days later, EM repeated that the appellant had touched her on the chest on the Saturday, and he had touched her on the chest and on the bottom on the Sunday. On the Saturday, MJ, ST, BG, BG’s mother and grandmother (Nona) were all on the back porch. This interview consisted of approximately 90 questions and answers.

23 On the third interview, EM said that the last time anything happened was on the Saturday and the Sunday. EM then referred to an occasion around Christmas time when she had gone to Taren’s and they had gone bike-riding. After spending some time at Taren’s, EM went back to ST’s because there was a pool party. Taren came over and went into the pool with her. The following day, the appellant touched her. Shortly after, EM went to the fence to talk to Taren, before leaving to go to BG’s house for a pasta lunch.

24 By the time EM came to be cross examined, she could not remember the details of the events she had related in the interviews. In particular, EM did not know if it was a Saturday or a Sunday, but she maintained that on the day the appellant touched her, she was at a barbecue at ST’s house, that she had argued with BG about going over to Taren’s house and she had gone to Taren’s where she had seen Taren’s father.

25 EM thought that she had stayed the night at ST’s house and had got up to find the appellant already in the lounge room watching “the Simpsons”. EM repeated the assertion that the appellant had touched her and that was before the other visitors came. She could not say which day of the weekend that occurred, although she thought that the barbecue was on the Sunday. At one point, EM said that the appellant had touched her on both the Saturday and the Sunday.

26 The evidence of Kylie T and Peter T, ST’s next door neighbour, established that the latter was not at home on the weekend of 18/19 February 2006, because of a knee operation that kept him hospitalised between 15 and 24 February 2006. Kylie T remembered an occasion during that period when Taren went next door to swim in the pool with other children. That day was a Saturday. The next day, Kylie took Taren to visit their father in hospital.

27 The appellant gave no evidence and called no evidence. A record of interview between the appellant and police on 27 December 2006 was an exhibit in the trial. In that interview, the appellant denied the allegations which were put to him in terms of their occurrence on the one day between a span of dates, namely 1 October 2005 and 22 March 2006. The appellant maintained that he had only touched EM on the chest on one occasion during winter when he had rubbed Vicks Vapour Rub on EM and another child.

The Issues in the Trial

28 The Crown conducted its case on the basis that all of the assaults were committed on Sunday 19 February 2006 and that EM was merely mistaken when she nominated Saturday as the relevant day. The indictment made time of the essence. The appellant’s representative at trial not surprisingly exploited the inconsistencies in EM’s evidence, particularly her references to the appellant touching her inappropriately on a Saturday and a Sunday. The defence submission to the jury was that EM was referring to events between herself and the appellant that took place at some time other than 19 February, and that the appellant was entitled to an acquittal on all counts for that reason alone. However, the defence also contended that the assaults did not occur.

29 Both the Crown’s closing address and the defence closing address relied upon the same aspects of the evidence of ST, MJ, BG and BG’s mother, albeit for different purposes. It was common ground that the statement admitted as an exhibit established that the only time BG’s mother and grandmother, Nona, were at ST’s house with all of MJ’s children was 19 February 2006, the day after the 40^th birthday party.

30 The Crown submission to the jury was that EM was clearly describing assaults upon her by the appellant on the one day, namely, the day ST, MJ, BG, BG’s mother and BG’s grandmother (Nona) were all on the back porch. Put simply, that evidence fixed the date as 19 February 2006, despite EM nominating that day as a Saturday at one point, then a Sunday at another point in her evidence. The Crown conceded that EM was not at ST’s house on the Saturday of that weekend, and that she could not have seen Taren’s father Peter that weekend.

31 The defence submission to the jury was that the inconsistencies, between EM’s account of the events of the weekend when the alleged assaults occurred, and the other evidence in the trial, would lead to the conclusion that EM was not talking about 19 February 2006. EM could not have seen Taren’s father that weekend, and she could not have slept at ST’s house on Saturday 18 February. Considerable reliance was placed upon the confusion between Saturday and Sunday that was evident from the first two interviews.

32 The summing up reflected the principal issue. The jury were directed that if they were not satisfied beyond reasonable doubt that the assaults happened on 19 February 2006, then the appropriate verdicts were not guilty.

The Appellant’s Submissions

33 The appellant submits that the test established by M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606 cannot be satisfied in this case. That test, recently applied in Burrell v R [2009] NSWCCA 193 and Zaphir v R [2009] NSWCCA 124, is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In reaching that determination, the Court must bear in mind the jury’s advantage in observing the witnesses, and the manner in which they gave evidence. The Court must also make its own assessment of the evidence.

34 The appellant’s submissions canvassed at length the inconsistencies in the evidence at trial. Most, if not all, of these were highlighted by counsel for the appellant at trial in her closing address, and could not therefore have escaped the attention of the jury. In addition to those matters, the appellant noted the substance of EM’s third interview, in terms that raise an inconsistency between what EM said in cross examination she had done after lunch (swimming and bike riding) and what she had said in her interviews (she had gone back into the lounge room). During the hearing of the appeal, senior counsel for the appellant submitted that “a very strong impression comes through from the evidence that she is actually describing a different day.”

35 It was further submitted that this was not a case where the jury enjoyed any particular advantage in its observation of the demeanour of the witnesses, over that available to this Court. The Court was not provided with a transcript of the three interviews conducted with EM, but was invited to view the video tapes of those interviews for the purposes of making its own assessment of the evidence. Accordingly, this is not a case where the Court was confronted with the issue raised in SKA v R ; R v SKA [2009] NSWCCA 186 at [100] to [110]. It is also worth noting that, according to the appellant’s counsel, the jury were given the tapes of the three interviews, but no complaint is made about that : R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628.

Whether the Verdicts were Unreasonable

36 Given the controversy surrounding the inconsistencies in EM’s accounts throughout the three interviews, it is important to the resolution of this appeal to note some of the observations made at trial and on the hearing of the appeal about the interview process.

37 In the course of the defence closing address, counsel implicitly acknowledged that the confusion surrounding the day upon which the alleged assaults occurred was at least partially the product of the interview process itself. Senior counsel on the hearing of the appeal was more explicit. Indeed, reliance was placed upon the forensic problem created by the presentation of evidence in the circumstances of this case, namely that EM’s interviews spanned 5 hours, during which there was “re-hashing, re cross examining, inducing confusion, adding more dates and getting the person back to run through the story again.”

38 Having seen the interviews, I cannot but agree with this assessment. The first interview began with a relatively straightforward allegation, confined to the commission of a relatively small number of discrete assaults on the one day. Approximately 800 questions later, after the interviewer had gone over the same ground dozens of times, all the while making extensive written notes on a folder on her knee without making any meaningful eye contact with EM during her answers, there is an attempt to fix the assaults in time that is then contaminated by the interviewer’s own misunderstanding of EM’s response.

39 It is difficult to escape the impression that the interviewer was not really listening to EM, rather she was focussed on writing down EM’s answers and was often distracted by instructions she received periodically from someone outside the room via an earpiece. Given that the entire interview was video recorded, it is not clear what purpose was served by the taking of comprehensive notes.

40 The overall impression of the first interview is that EM persevered in providing clear, unambiguous answers for some considerable period of time, before any confusion arose. When it did arise, it was the product of repetitive questioning that took the events out of sequence. In many respects, it is surprising that a nine year old girl remained as attentive as EM did, during such a lengthy, tedious process.

41 The second interview compounded the problems of the first. Nonetheless, EM was consistent about one very important unifying fact, that is, that on the day of the assaults, ST, MJ, BG, BG’s mother and grandmother were all on the back porch.

42 The third interview accomplished nothing by way of clarification of the assaults the subject of the indictment. To the contrary, I would agree with the appellant’s senior counsel that EM appears to be describing a different incident altogether, in addition to the assaults in February 2006. However, the third interview was left to the jury on the basis that EM was referring to the same occasion and no comment was made by the appellant’s counsel at trial in relation to it. The appellant does not now take the point that the third interview ought not have been admitted.

43 There were some important circumstances surrounding the commission of the assaults in EM’s account in the first two interviews that allowed the jury to be comfortably satisfied to the requisite standard that the offences occurred on Sunday 19 February 2006. Apart from the presence of BG’s mother and grandmother on the day after the 40^th birthday party, there was the reference to EM’s argument with BG about going over to Taren’s place. MJ and ST both remembered that argument on that day and the reason for refusing EM permission to go. The fact that EM maintained that she had gone next door and seen Taren and her father does not detract from the fact that there was an argument. The jury was entitled to take the view that EM was unable to isolate what occurred after the argument on that particular day, as opposed to every other weekend that she had visited ST and gone next door to play with Taren. There was evidence independent of EM that was capable of resolving any doubts as to the date of the assaults.

44 I do not regard the verdicts as unreasonable, nor am I of the view that they cannot be supported having regard to the evidence. My own assessment of the evidence leads me to the conclusion that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. I would dismiss the conviction appeal.

The Crown Appeal Against Sentence

45 In addition to the ground alleging manifest inadequacy, the Crown submits that the Judge erred in identifying a standard non parole period for the offences under s 61M(2) of the Crimes Act of 5 years as opposed to 8 years. The second specific error is that the Judge failed to determine the objective gravity of the offences and to give reasons for departing from the standard non parole period. The third specific error is that the Judge erred in imposing a fixed term in respect of count 4 on the indictment. I propose to deal with each of these errors in turn, before returning to the ground of manifest inadequacy.

46 In the opening paragraph of the Judge's remarks on sentence on 19 September 2008, the Judge notes the maximum penalty in respect of each offence and goes on to nominate the standard non parole period as 5 years. This was unfortunate, in that the Judge was relying upon information provided by the Crown’s representative. The standard non parole period for each of the relevant offences increased from 5 to 8 years as and from 1 January 2008, pursuant to Schedule 1 of the Crimes (Sentencing Procedure) Amendment Act 2007.

47 However it came about, the Court cannot assume that the Judge’s error in this regard exerted no influence on the sentences ultimately imposed. Consistent with the reasoning of the Court in Kershaw v R [2009] NSWCCA 19 at [15], “although it cannot be determined that some arithmetical proportion of [the Judge’s] assessment is reflected by his use of the [lesser] incorrect standard non-parole period it should be concluded that, had the [greater] correct figure been used for reference, the assessment would have been [greater] to some extent.”

48 Both the maximum penalty and the standard non parole period have an important role to play in the sentencing exercise : R v Terkmani [2009] NSWCCA 142. That is particularly so where the legislature has prescribed a standard non parole period that is 80% of the maximum penalty.

49 The respondent’s argument on this ground invites the Court to exercise its discretion not to intervene on the basis that the Crown was responsible for leading the Judge into error and on the basis that the respondent’s trial was delayed, through no fault of his own, until after the amendments that increased the standard non parole period came into effect. It was submitted that the respondent’s trial was to commence in November 2007. A voir dire hearing was held at that time before a different judge, relating to the admissibility of tendency evidence, but according to an exchange between the Crown and the Judge on 13 June 2008 during sentencing submissions, it was never the intention that the trial would proceed before that judge. I will return to this aspect of the appeal when determining whether the sentence is manifestly inadequate.

50 The determination of the objective gravity of the offences was also the subject of some confusion. The Crown’s written submissions before the Judge sought to place the objective gravity of counts 1 and 4 well above mid range, and that of count 2 into the worst category of case, on the basis of what was said in Ivimy v R [2008] NSWCCA 25 at [40] – [42]. Price J (with whom McClellan CJ at CL and Hall J agreed) in that case described the touching of an 8 year old girl on the outside of the vagina, whilst she was standing naked in the shower, as “close to a worst class of case”.

51 The respondent’s counsel submitted to the Judge that counts 1 and 4 fell at the lowest end of the range of objective gravity. No specific finding was made by the Judge in respect of counts 1 and 4, although it would seem that the parties accepted that they were of a lesser gravity than count 2.

52 The respondent’s counsel then submitted that count 2 fell “close to the middle of the range”, albeit “still below”. On a subsequent occasion, counsel modified that statement to “not at the lowest end of the range, but … lower to mid point of the range.” When the Judge came to deliver sentence, his remark in relation to count 2 was that “the offence is properly classified by [the respondent’s counsel] as being in the low to middle range of seriousness.” These terms allow for considerable latitude in fixing a non parole period anywhere between 1 and 5 years, assuming, as the Judge did, that the standard non parole period was 5 years. Given that the Judge imposed a non parole period of 4 years for count 2, the objective gravity of that offence must have been assessed by the Judge as not far below the mid range.

53 There is no doubt that the whole of the remarks on sentence were brief. To the extent that the Crown complains that the Judge failed to elucidate his reasons for his finding in relation to count 2, the remarks disclose a rejection of the Crown’s submission that the offence constituting that count bore any relevant similarity with the circumstances of the offence in Ivimy. Beyond that, it is not clear how the Judge arrived at an assessment of objective gravity below the mid range. It may not have been outside the sentencing discretion to distinguish Ivimy, but it is difficult to justify a finding below the mid range for an offence under s 61M(2) constituted by the touching of the genitalia of a nine year old girl.

54 The imposition of a fixed term in respect of count 4 was not open to the Judge because of s 45 of the Crimes (Sentencing Procedure) Act : SGJ v R [2008] NSWCCA 258. Unfortunately, the Crown representative did not bring this prohibition to the attention of the Judge. Nonetheless, the sentence imposed cannot stand and must be corrected by the Court.

55 I turn to the question whether the sentences are individually and collectively manifestly inadequate.

56 In the circumstances of this case, an assessment of the objective gravity of these offences was very much determinative of the sentences to be imposed. The respondent’s subjective circumstances were not favourable, in that he was, at the time of sentence, a 52 year old man with a previous criminal history for child sexual assault offences who continued to maintain his innocence. A psychiatric report prepared in April 2008 ventured the opinion that the respondent probably had “an underlying paedophilia that requires treatment”. The respondent’s risk of re-offending was assessed in the moderate to high range. He had no history of mental illness and was in reasonable health, but for a back injury that restricted movement at times.

57 The respondent’s previous convictions related to the sexual assault of three girls, all under the age of 13. Two of the victims were his natural daughters from different relationships, whilst the third was the daughter of his then de facto spouse. The respondent admitted those offences when he was arrested in late 1997. He served sentences of imprisonment between 8 December 1998 and 7 December 2001. His release to supervision occurred on 8 December 1999. The respondent disclosed to Dr Allnutt that he had undertaken a sexual offender’s course whilst in custody, which he saw “as a waste of time.” In the light of this material, one could not be optimistic about his prospects of rehabilitation.

58 In my view, the offences constituted by counts 1 and 4 warranted an assessment towards the lower end of the range of objective gravity, albeit not at the very bottom. For this reason, I do not regard the sentence imposed for count 1 as manifestly inadequate, nor would I regard a similar sentence for count 4 as manifestly inadequate. The fixed term wrongly imposed for count 4 corresponds to the non parole period fixed for count 1.

59 Accepting that the offence the subject of count 2 was well above the mid range, although not in the worst category, I regard the sentence imposed on that count as manifestly inadequate. A sentence of 7 years was, in my view, warranted at first instance. Had a sentence of that order been imposed, the non parole period would obviously have fallen short of the standard non parole period, although not to the same degree.

60 The sentences called for a significant measure of personal and general deterrence. The accumulation of the sentence for count 4 on the wholly concurrent sentences for counts 1 and 2 by a period of only three months failed to reflect the totality of the respondent’s criminality, even when account is taken of the fact that the offences occurred in the course of one day. In the result, the respondent is serving an aggregate non parole period that is little more than half of the standard non parole period for one offence.

61 I am mindful of the principles relating to Crown appeals that operate to constrain the Court’s intervention. There is theoretical scope for the application of the discretion not to intervene, particularly where the conduct of the Crown has contributed to the identified errors. I would reject the argument that the discretion is engaged by some unexplained delay in the commencement of the respondent’s trial. There is no evidence before the Court of an earlier trial date that was vacated on the application of the prosecution. The evidence, such as it is, establishes that the Crown and the respondent took advantage of an opportunity to resolve a dispute about the admissibility of potentially prejudicial evidence, in advance of the trial date. In the result, I have come to the view that the aggregate sentence in particular falls so far short of reflecting the respondent’s criminality that the discretion ought not be exercised. Accordingly, I would allow the Crown appeal and proceed to re-sentence.

62 The Judge accepted that there was no basis for a finding of special circumstances. The respondent has not sought to challenge that finding. As I have already noted, the respondent cannot expect any amelioration of the sentence on account of his subjective circumstances.

63 I propose the following orders:-

1. Dismiss the appeal against conviction.

2. Allow the Crown appeal against sentence.

3. The sentences imposed on 19 September 2008 are set aside.

4. On each of count 1 and count 4, a non parole period of 2 years and 6 months is imposed, to date from 19 March 2007, expiring 18 September 2009, with a balance of term of 10 months, expiring 18 July 2010.

5. On count 2, a non parole period of 5 years is imposed, to date from 19 March 2008, expiring 18 March 2013, with a balance of term of 18 months, expiring 17 September 2014.

6. The respondent is eligible for release on 19 March 2013.

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