Kellan Craft (a pseudonym)[1] v The Queen
[2021] VSCA 66
•19 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0170
| KELLAN CRAFT (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.
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| JUDGES: | PRIEST and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 March 2021 |
| DATE OF JUDGMENT: | 19 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 66 |
| JUDGMENT APPEALED FROM: | DPP v [Kellan Craft] (Unreported, County Court of Victoria, Judge Taft, 17 December 2018) (Sentence) |
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CRIMINAL LAW — Appeal — Sentence — Sexual penetration of a child under 16 and associated offences — Sentenced to 10 years and 9 months’ imprisonment with 7 years non-parole — Whether manifestly excessive — Whether sentencing judge failed to give proper weight to guilty pleas — Whether sentencing judge failed to give proper weight to mental condition — Appeal allowed — Resentenced to 8 years and 6 months’ imprisonment with non-parole period of 5 years and 6 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R Avis | Lethbridges |
| For the Respondent | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
NIALL JA:
Introduction
Between March 2012 and February 2017, the applicant, aged from 21 to 24 years,[2] committed a number of sexual offences involving ‘Z’, aged from about 7 to 12 years,[3] the sister of ‘C’, with whom he was in a relationship.
[2]His date of birth is 1 December 1990.
[3]Born in April 2004.
On 10 April 2018, the applicant pleaded guilty before a judge of the County Court to an indictment containing six charges. Following a plea in mitigation, on 17 December 2018 the judge sentenced the applicant to a total effective sentence of 10 years and nine months’ imprisonment, with a non-parole period of seven years, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Producing child pornography[4] 2 years 12 months 2 Sexual penetration of a child under the age of 16 years[5] 5 years and 9 months 15 months 3 Sexual penetration of a child under the age of 16 years 6 years[6] Base 4 Grooming for sexual conduct with a child under 16 years[7] 15 months 9 months 5 Attempting to pervert the course of justice[8] 15 months 9 months 6 Indecent act with a child under 16 years[9] 2 years 1 year Total effective sentence: 10 years and 9 months’ imprisonment Non-parole period: 7 years Section 6AAA declaration: 15 years’ imprisonment with 12 years’ non-parole Other orders: Forfeiture; Sex offender registration for life [4]Crimes Act 1958, s 68(1). The maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958, s 45(1). The maximum penalty is 25 years’ imprisonment.
[6]Pursuant to s 6F(1) of the Sentencing Act 1991, he was sentenced as a serious sexual offender on charges 3, 4 and 6.
[7]Crimes Act 1958, s 49B. The maximum penalty is 10 years’ imprisonment.
[8]A crime at common law. By s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.
[9]Crimes Act 1958, s 47(1). The maximum penalty is 10 years’ imprisonment.
The applicant now seeks leave to appeal on a single ground as follows:
The individual sentences, orders for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
For the reasons that follow, we would grant leave to appeal; allow the appeal; and resentence the applicant to a total effective sentence of eight years and six months’ imprisonment, with a non-parole period of five years and six months, in the manner set out below.[10]
[10]At [31].
The applicant’s offending
It is convenient to repeat the judge’s description of the applicant’s offending as set out in the reasons for sentence:
[4]... The victim, Z … lived with her mother, brother and half-sister, C, with whom you were in a relationship.
[5]When Z was 8, you asked to take a photograph of her, and she lifted up her top to expose her chest. Six photographs have been found where Z is exposing her breasts and vagina. Two of those photographs show your hand resting on the outside of the complainant’s exposed vagina. Further similar photos were taken, but have not been located. That conduct founds Charge 1, being the production of child pornography.
[6]Charges 2 and 3 involve sexual penetration of a child under 16. ...
[7]On a night in April 2014, when Z had turned 10, you walked into her bedroom in the house in which she lived ... While she was sitting on a double bed, you put your penis in her mouth and held it in your hand and moved it in and out until you ejaculated. After you ejaculated, you wiped your penis with a towel, and Z returned to the lounge room of the house, where the rest of her family were seated.
[8]Sometime between April 2014 and March 2015, Z was sleeping in the lounge room because she felt sick. You went into the lounge room and removed her pants and underwear, and positioned Z’s legs so that you could slowly penetrate her vagina. Z saw your penis enter her vagina and penetrate her to a distance of about 5 centimetres. She stated ‘it hurts, stop’ and you stopped. You then told Z not to tell anyone about it or both of you would get into trouble. You did not ejaculate on this occasion.
[9]During early 2015, just before Z’s 11th birthday, you asked her to send a naked photo of herself. She took a photograph of herself exposing her breasts. That conduct is not relied upon as a charged act.
[10]In July 2015, your girlfriend, C, viewed three photographs of Z on your mobile phone. Two of those photographs depicted her sitting in a chair and one photograph showed her exposing her chest and your penis close to her vagina. C confronted you, and you said that you did not know why it happened. You said that you had been sitting in the lounge room with Z and she had sent a message with the words ‘wanna fuck’ and ‘can we fuck’. She had also taken off her pants.
[11]Those images were transferred to C’s phone and deleted from your phone. C made contact with the Centre Against Sexual Assault (‘CASA’) seeking advice regarding the photographs she had located, and as a result a mandatory report was made to police. However, on 23 July 2015, C told police that she had made up the allegation due to you cheating on her.
[12]On 8 August 2015, Z admitted to her mother that you had taken pornographic photos of her. She also said that she had been made to perform oral sex on you and that you had asked her to do things to you in the lounge room. She stated that you tried to put your penis inside her, but it hurt too much, so she told you to stop, which you did. When asked if you had done anything else, she said ‘Yes, he’s been down there too mum, with his head’.
[13]On 9 August 2015, Z’s aunt arranged to meet you, and you acknowledged that you knew that Z had made serious allegations against you and that you were not going to deny them.
[14]On 13 August, you were arrested, and police seized your mobile phone and police were also provided the mobile phone that belonged to C.
[15]You were interviewed [by police] on 13 August 2015 and denied any acts of sexual penetration and taking any photographs of the complainant.
[16]On 19 November 2016, you were charged with child pornography offences after photographs found on your phone, and that of C, were forensically analysed.
[17]On the same day, and after being charged, you initiated contact with Z via Snapchat. You sent her hundreds of Snapchat messages every day. They were mainly images of you at work. You also engaged in text conversations on Snapchat and Z provided you with her mobile phone number. Analysis of phone records reveal that between 14 January 2017 and 18 February 2017 you contacted Z on 2,758 occasions and Z contacted you on 1,144 occasions.
[18]Some days after Australia Day 2017, you met Z in person for the first time since the earlier allegations came to light. When your partner, C, had gone out to lunch, you picked Z up and drove her to a bushland area where you spent an hour talking. After this meeting, you would ask Z to sneak out in the early hours of the morning and you would spend time together. On an occasion between 26 January 2017 and 10 February 2017, you arranged for Z to spend the night with you at a house you shared with C, when she was staying elsewhere.
[19]Your interaction with Z, both in person and when communicating by Snapchat or phone, was undertaken with the intention of facilitating Z’s involvement in a sexual offence and is the basis for the charge of grooming.
[20]During the evening that you spent with Z, you told her that she needed to get you out of trouble and ‘…You’re gonna tell the police and tell your dad that your Auntie Diane and your mother made you lie about everything that I did to you.’ That conduct founds the charge of attempting to pervert the course of justice.
[21]On Friday, 10 February 2017, C spent the weekend in [a rural town]. You contacted Z, purchased two slabs of pre-mixed alcoholic beverage and spent some time in bushland before driving to your house, where you both drank some of the alcohol. Z consumed so much that she felt sick and vomited. When she woke up, she found herself sleeping in a bed next to you. She decided to leave.
[22]On 17 February 2017, Z was at the supermarket with her mother and ran off. Later that evening, Z and some of her friends stole her mother’s car. At about 11.00pm, she contacted you for help in returning the stolen car, and you drove Z and a friend from [a rural town to a rural town] and back. While in the car, Z and you were kissing and the two of you went back to your house and fell asleep together. C was absent because she had gone to stay with a friend for the night.
[23]While Z was having a shower at your house, you masturbated in the bedroom, and when in bed together, you kissed and cuddled. At about 3.55pm on Saturday, 18 February, you texted C and told her that you were going driving in the bush. You took Z with you. You ultimately dropped her off at about 1.30am on Sunday, 19 February, near her grandparents’ house in [a rural town].
[24]Police attended your home at about 1.30am and seized various items. At about 3.00am on 19 February you were located in bushland, having made an attempt to hang yourself. You were arrested under s 351 of the Mental Health Act 2014 and taken to Ballarat Psychiatric Hospital for a mental health assessment.
[25]On 28 February 2017, you were arrested and interviewed by police and exercised your right to silence.
Reasons for sentence
In his reasons for sentence, the judge noted that the applicant entered ‘early’ pleas of guilty to the charges of grooming (charge 4), attempting to pervert the course of justice (charge 5) and committing an indecent act with a child under 16 (charge 6), but that ‘the entry of guilty pleas to producing child pornography and to sexual penetration was belated, and occurred immediately prior to the commencement of a trial and after a special hearing had been conducted, at which Z had been cross-examined’. The judge also noted that ‘[e]fforts to obtain a Victim Impact Statement from Z have been unsuccessful’.
Turning to the applicant’s personal history, the judge noted that the applicant had hated school because he was bullied and was frequently in trouble. After leaving school, however, he had ‘a good work history’.
The applicant, the judge said, had been admitted to hospital on 19 February 2017, after attempting suicide. He had since been prescribed antidepressants, sedatives and other medication. Further, the judge noted that Daria Sizenko, provisional psychologist, and Pamela Matthews, forensic psychologist, in a report dated 9 May 2018 suggested that the applicant had continued to struggle with socialisation and found himself subject to threats when held at the Metropolitan Remand Centre. The applicant had nightmares every night and avoided human interaction. Ms Sizenko and Ms Matthews, the judge said, considered that there is a ‘strong nexus’ between the applicant’s victimisation as a child and his offending, and ‘lifelong low self-esteem arising from both victimisation and learning and behavioural difficulties since childhood’. They expressed the view that, since being charged in November 2016, it is quite clear that the applicant has suffered from a major depressive disorder. The judge then set out the following extract from the psychologists’ report which ‘enumerated the factors which contribute to [the applicant’s] risk of re-offending’:
Factors contributing to his risk of re-offending are: Paedophilic interest in female pre-pubertal children; developmental victimisation; features of borderline personality disorder; poor insight; functional as opposed to organic difficulties with concentration, organisation, and planning; mental health problems including, depression, anxiety, post trauma symptoms, self-injury and suicidal ideation; interpersonal difficulties; and vulnerability to substance abuse.
Martin Jackson, a clinical neuropsychologist, had also provided a report, dated 3 September 2018. The judge said that Mr Jackson had ‘expressed the tentative opinion that [the applicant] may be presenting with symptoms of high functioning autism spectrum disorder’. Mr Jackson considered that the applicant did not ‘present with particular symptoms seen in a number of personality disorders where the primary feature is problems with impulse control, lack of empathy and attachment issues’. From a neuropsychological perspective, Mr Jackson considered that the applicant ‘had good prospects of rehabilitation’ and had ‘the cognitive capacities’ to learn and change his behaviour.
Further, Dr Peter Farnbach, psychiatrist, provided a report dated 5 November 2018. The judge noted that Dr Farnbach concluded that the applicant suffers from ‘a major depressive disorder, a social anxiety disorder, an autism spectrum disorder and a learning disorder, together with probable attention deficit disorder’, and that this range of conditions ‘arises against a backdrop of a traumatic childhood marked by significant bullying at school, exposure to parental conflict and [the applicant’s] most difficult relationship with [his] father’. The applicant presents as anxious and reserved, and as having difficulty with normal interactions, chronic self-esteem issues, and few friends of his own age. As to remorse, the judge noted the following aspects of Dr Farnbach’s report:
While you expressed remorse for your conduct, your insight is partial and that limited insight is said to be a product of your autism spectrum disorder, rather than the result of any personality issues such as narcissistic or antisocial personality traits. Dr Farnbach expresses the opinion that you are alexathymic, which results in a lack of insight or understanding in respect of your emotional awareness and interpersonal relationships. However, while your insight was partial and you have been fearful and embarrassed when discussing your conduct, you did tell Dr Farnbach that you worry about the effect of your behaviour on Z because, ‘She’ll be living with this for the rest of her life’.
Importantly, the judge observed:
I accept for the purposes of sentencing that your diagnosed conditions, and especially the autism spectrum disorder, will cause imprisonment to be more burdensome for you than for a person without such conditions, and that your mental health is at risk of being further compromised whilst you are in custody.
And the judge stated:
You have found incarceration most difficult. It is reported that you have had urine thrown over you by inmates, have been attacked and hit, and that your glasses have been broken. You have also recounted that you have had Weet Bix smashed into your mouth and bleach powder thrown over your clothes and bedding. You lost 10 kilograms in custody before being moved to Ararat where your conditions have improved.
The judge also said:
Your counsel emphasised the absence of relevant prior convictions, the entry of guilty pleas, albeit belated in respect of the penetrative offences and the pornography charge, your stable home environment and family support, guaranteed employment upon release from prison, your preparedness to obtain treatment, and your relatively young age. I accept that observations from Ms Sizenko and Ms Matthews concerning your lack of insight need to be understood against the backdrop of your autism spectrum disorder and your understandable fears that any disclosures in custody could result in you being further targeted.
The judge then set out a number of aggravating features of the applicant’s offending, which we need not repeat. He said that, although no victim impact statement had been provided, ‘the long-term and, indeed, potentially life-long effects of sexual abuse upon children, is increasingly understood’. The judge considered the applicant’s moral culpability to be ‘high’, and that any assessment of the applicant’s ‘capacity to be rehabilitated must be guarded’.
Finally, the judge said that although the applicant was to be sentenced as a serious sexual offender on charges 3, 4 and 6, the prosecution did not seek a disproportionate sentence.
The applicant’s submissions in this Court
The oral submissions of the applicant’s counsel in this Court were economical. In written submissions, counsel submitted that the sentencing judge must have placed insufficient weight on the applicant’s relative youth; his pleas of guilty; his vulnerability in custody; his genuine remorse; and his good prospects of rehabilitation.
Counsel submitted that the judge failed to give sufficient weight to limbs 5 and 6 of Verdins.[11] The evidence indicated that the applicant had a disabling social anxiety disorder, major depressive disorder and autism spectrum disorder; attention deficit disorder (‘ADD’); learning disorder and short-term auditory memory (‘STAM’); and alexithymia. As a result of these conditions, the applicant will be particularly vulnerable in prison, and at risk of psychiatric harm. He had already been assaulted in custody, leaving him lonely and terrified.
[11]R v Verdins (2007) 16 VR 269 (‘Verdins’). Propositions 5 and 6 are as follows (Verdins, 276 [32] (Maxwell P, Buchanan and Vincent JJA)):
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
…
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
The respondent’s submissions
Counsel for the respondent submitted that when one considers the serious nature of the offending, the relevant sentencing principles, the presence of a number of aggravating features, as well as the matters personal to the applicant relied on in mitigation, it could not reasonably be argued that any of the individual sentences or the total effective sentence are manifestly excessive.
The respondent’s counsel submitted that there was a number of aggravating features that the judge properly took into account, including the complainant’s young age; the ‘profound’ breach of trust; the extensive period over which the conduct occurred; the brazen nature of the offending; the fact that the offending continued after the applicant had already been charged initially over the pornographic images; the renewal of contact after the initial charges, and the urging of the complainant to tell police she had lied; the ‘surreptitiously seized opportunities’ to contact the complainant while her sister was away; and that the applicant ‘plied’ the complainant with alcohol.
Moreover, the judge correctly considered the applicant’s moral culpability to be high, involving the ‘sexualisation of a child attending primary school and the distortion of her psychosocial development.’ Principles of general and specific deterrence, denunciation and protection of the community were important.
Counsel submitted that the judge paid proper regard to Verdins considerations, and accepted that prison would be more burdensome for the applicant, and that the applicant’s mental health was at risk of being ‘further compromised’ in custody. Furthermore, the judge noted that any apparent ‘lack of insight’ shown by the applicant into his offending, needed to be understood against the background of his autism spectrum disorder. The judge also took into account the applicant’s pleas of guilty; his stable home environment; his relative youth; his preparedness to obtain treatment; his employment prospects upon release; and the difficulties the applicant had faced, and would continue to face, in custody.
Discussion
An unsatisfactory aspect of the manner in which the application proceeded in this Court is that counsel neither end of the Bar table were able to provide other than a sketchy explanation for what the judge twice described in the reasons for sentence as the applicant’s ‘belated’ plea to the charges of sexual penetration. We note, however, that there was the following exchange during counsel’s plea in mitigation:[12]
[12]Emphasis added.
[DEFENCE COUNSEL]: … I suppose I’ll start with making the point about the pleas. He’s pleaded guilty in relation to the 2017 offences at the committal hearing, and it was originally going to proceed on a significant number of charges which included, I believe, a charge of kidnapping at that time, and the charges ultimately pled to were the result of significant negotiations and I’d make the submission that, in relation to those matters at least, it’s an early plea given the outcome for him.
In relation to the perhaps more serious matters from the earlier lot of offending, he – although the complainant had to endure the trauma of the special hearing, and I note that she was unable to come on the first day and it was eventually proceeded on another day a couple of days later, that that was a significant advantage to the accused in that the Crown agreed to withdraw an additional charge of sexual penetration, which the complainant, in my submission, didn’t swear up to particularly well in that special hearing.
So once again, although it proceeded that far down the track, it has resulted in some advantage to the accused, and I submit that the plea was proceeded with at an appropriate time, and the accused’s presentation, you may recall - - -
HIS HONOUR: There was an offer made in respect of some charges that arose from the earlier time?
[DEFENCE COUNSEL]: Not that I’m aware of, Your Honour. It was – another counsel had it in that earlier stage.
HIS HONOUR: I appreciate that another counsel had it.
[DEFENCE COUNSEL]: I think – I believe he made an offer to plead to the child pornography offences only, or - - -
HIS HONOUR: But as to the penetration offences?
[DEFENCE COUNSEL]: No, that was last minute door of the trial, Your Honour. I concede that.
HIS HONOUR: So in that sense, in respect of those offences, the plea was belated and followed a requirement that the complainant attend the special hearing.
[DEFENCE COUNSEL]: That’s right, but there was an additional charge of sexual penetration that wasn’t proceeded with.
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: So that’s the best I can extract from those circumstances, but he’s aware the matters have proceeded over a lengthy period of time and taken some time to settle and eventually the plea was – it is a door of the court negotiation, Your Honour, of the trial.
As best we are able to determine from the above exchange, the applicant pleaded guilty to the ‘2017 offences’ — grooming (charge 4), attempting to pervert the course of justice (charge 5) and committing an indecent act (charge 6) — at committal, and had offered a plea to the child pornography offence (charge 1) after the committal and prior to the special hearing. Further, although, as counsel put it, the applicant made an offer to plead to the ‘penetration offences’ (charges 2 and 3) ‘last minute door of the trial’ — attracting the judge’s characterisation of the pleas as being ‘belated’ — it appears that at least one charge of sexual penetration of a child under 16 was not proceeded with by the prosecution as a result of Z’s evidence at the special hearing. In those circumstances, we are unable to say that it was wholly unreasonable for the applicant to proceed to a special hearing. Indeed, as we have said, it would appear that at least one serious charge was not pursued as a result of Z’s evidence being tested.
Although the sole ground of appeal in this Court does not allege discrete error, a remarkable feature of the judge’s sentencing remarks is that — beyond the declaration made under s 6AAA of the Sentencing Act 1991 — he did not say how he treated the applicant’s guilty pleas. For example, he did not say whether he regarded the pleas — any of them — as having utilitarian value,[13] or as demonstrating remorse.[14]
[13]See Cameron v The Queen (2002) 209 CLR 339, 360–61 [66] (Kirby J) (‘Cameron’); Phillips v The Queen (2012) 37 VR 594, 604–5 [36] (Redlich JA and Curtain AJA) (‘Phillips’).
[14]Phillips, 604–5 [36].
Quite clearly, save for the exceptional case — which this is not — a discount for the utilitarian benefit of a guilty plea must always be allowed on the sentence to be imposed, the strength of the prosecution case being irrelevant to the discount to be allowed for the utilitarian benefit of the plea.[15] Where remorse, a willingness to facilitate the course of justice and an acceptance of responsibility may be inferred from a plea of guilty, those factors should be fully reflected in the ‘discount’.[16] We acknowledge that the sentencing judge was experienced, and might be expected to have been acquainted with the relevant principles. But that, perhaps, makes it all the more remarkable that he did not seek to identify or explain what weight he attributed to the guilty plea and how it was taken into account (beyond the s 6AAA declaration).
[15]Ibid.
[16]Ibid.
To once more traverse well-trodden ground, manifest excess is a conclusion. Excess is, or is not, plainly apparent. A sentence is, or is not, unreasonable or plainly unjust.[17] Not often will a conclusion of manifest excess admit of much elaboration. When a claim is made that a sentence is manifestly excessive, the members of the appellate court must balance the often incommensurable factors bearing on the exercise of the sentencing discretion, those factors frequently pulling in different, conflicting and contradictory directions.[18] Appellate intervention on the ground of manifest excess is not warranted, however, unless, having regard to all of the relevant sentencing factors the appellate court is ‘driven to conclude that there must have been some misapplication of principle’.[19]
[17]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[18]See Elias v The Queen (2013) 248 CLR 483, 494–5 [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 433 [4] (Kiefel CJ, Bell and Keane JJ); 452 [79] (Gageler and Gordon JJ) (‘Dalgliesh’).
[19]See R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); Dalgliesh, 447−8 [59] (Kiefel CJ, Bell and Keane JJ). See also DPP v Zhuang (2015) 250 A Crim R 282, 295–300 [39]–[49] (Redlich, Priest and Beach JJA); DPP v McInnes [2017] VSCA 374, [75].
Balancing all relevant factors, we consider that the sentence imposed upon the applicant is manifestly excessive.
It cannot be gainsaid that the offence of sexual penetration of a child under 12 is inherently serious, there being no trivial examples of that kind of offending.[20] But in our view — paying due regard to the seriousness of the applicant’s offending — it is difficult to see that the sentences imposed on charges 2 and 3 properly reflect the utilitarian benefit of the applicant’s pleas of guilty, let alone any component of remorse. Thus, although in one sense they were ‘belated’, they came after the special hearing led the prosecution to abandon at least one charge of sexual penetration, and saved the cost and inconvenience of a trial.
[20]See McPherson v The Queen [2021] VSCA 53, [27].
Moreover, we consider that — bearing in mind the applicant’s autism spectrum disorder and its effect on his insight — the pleas also were capable of demonstrating remorse. Yet, once more, it is difficult to see so much reflected in the sentences imposed on charges 2 and 3.
Furthermore, it is difficult to see that the applicant’s autism spectrum disorder (and, to a lesser extent, his other diagnosed conditions) — which the judge accepted will cause imprisonment to be more burdensome for the applicant — can have been afforded proper weight in the sentencing synthesis.
Finally, and discretely, we consider the sentence imposed on charge 5 to be manifestly excessive. As attempts to pervert the course of justice are concerned, the applicant’s offence was a relatively minor example of the offence (which, notoriously, attracts a wide range of sentences).
In our view, leave to appeal should be granted and the appeal allowed. The sentences imposed in the County Court should be set aside. We would resentence the appellant in accordance with the following table:
Charge Offence Sentence Cumulation[21] 1 Producing child pornography 2 years 9 months 2 Sexual penetration of a child under the age of 16 years 4 years and 6 months 15 months 3 Sexual penetration of a child under the age of 16 years 5 years Base 4 Grooming for sexual conduct with a child under 16 years 15 months 6 months 5 Attempting to pervert the course of justice 6 months 3 months 6 Indecent act with a child under 16 years 2 years 9 months Total effective sentence: 8 years and 6 months’ imprisonment Non-parole period: 5 years and 6 months [21]With respect to charges 1, 2 and 4, the legislative direction in s 16(1) of the Sentencing Act 1991 is that any sentence passed on them is to be concurrent with other sentences unless otherwise directed. Given that the applicant is to be sentenced as a serious sexual offender on charges 3, 4 and 6, however, there is a legislative direction in s 6E of the Act that sentences passed on them are to be served cumulatively unless otherwise directed. As has been observed more than once, strict compliance with the legislative regime is accordingly rendered somewhat cumbersome.
The appellant will be sentenced as a serious sexual offender on charges 3, 4 and 6.
We would confirm all other orders made by the County Court.
Pursuant to s 6AAA of the Sentencing Act 1991, we would declare that, but for his pleas of guilty, we would have sentenced the appellant to be imprisoned for 11 years, upon which we would have fixed a non-parole period of eight years.
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