Longley v The Queen - [2001] WASCA 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LONGLEY -v- THE QUEEN [2001] WASCA 71

CORAM: ANDERSON J
SCOTT J
STEIN AJ

HEARD: 14 FEBRUARY 2001

DELIVERED : 16 MARCH 2001

FILE NO/S: CCA 196 of 2000

BETWEEN: PETER JEREMY LONGLEY
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Appeal - Appeal against sentence - Effect of setting aside convictions on some counts - Discount for plea - Totality - Previous character - Likelihood of reoffending - Age and state of health - General deterrence - Manifestly excessive

Legislation:

Crimes Act (Vic), s 569(1)

Criminal Code (WA), s 183, s 693(1)

Sentencing Act 1995, s 8(2), s 82(2)

Result:

Application to extend time to appeal against convictions on counts 1, 4 and 6 allowed
Appeal allowed
Convictions and sentences on counts 1, 4 and 6 quashed
Leave to appeal against sentence granted
Appeal against sentence dismissed

Representation:

Counsel:

Applicant: Mr O P Holdenson QC & Ms B J Lonsdale
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Dwyer Durack
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Dempsey v The Queen, unreported; CCA WA; 960059C
Johnston v The Queen, unreported; CCA SCt of WA (Anderson J), 22 March 1996
Kailis v The Queen (1999) 21 WAR 100
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Edirimanasingham [1961] AC 454
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Ryan v The Queen (1982) 149 CLR 1
Siganto v The Queen (1998) 194 CLR 656
Trescuri v The Queen [1999] WASCA 172
Wagenaar v The Queen [2000] WASCA 325

Case(s) also cited:

De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dinsdale v The Queen (2000) 175 ALR 315
DPP v Grabovac [1998] 1 VR 664
Heryadi v The Queen (1998) 19 WAR 383
Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930391; 14 June 1993
R v Atholwood (1999) 109 A Crim R 465
R v Carmody (1998) 100 A Crim R 41
R v Evans, unreported; CCA SCt of WA; Library No 920616; 24 November 1992
R v Lomax [1998] 1 VR 551
R v Miceli [1998] 4 VR 588
R v Ward [1999] WASCA 157
R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987
RHMcL v The Queen (2000) 174 ALR 1
Shaw v R (1989) 39 A Crim R 343
Wagenaar v The Queen [2000] WASCA 325

ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Stein AJ with which I am in entire agreement. There is nothing I wish to add.
SCOTT J: In this matter, I have had the advantage of reading in draft the reasons to be published by Stein AJ.
I agree both with the reasons of his Honour and the conclusions that he reaches.
The matters that gave rise to these charges occurred many years ago. For the most part, the offences occurred at boarding schools where the applicant was a teacher. The offences occurred at more than one school.
It should be noted in this type of case that students are entrusted to boarding school by their parents, usually, but not always, in circumstances where the parents live in areas where no suitable educational opportunities are available. The students are entrusted to the school in the belief that, so far as is possible, they will be protected, particularly from predatory conduct such as occurred here. Students in that situation have a limited capacity to protect themselves because their parents are so far away and they lack the usual supports that may be available to day students.
In this context, the excellent references provided for the applicant serve to emphasise the reason why so many years transpired before these matters came to light. Students in the position of these victims, having been violated by a teacher of such high standing, would readily perceive the apparent futility of making a complaint about the conduct that ultimately brought the applicant to the attention of authorities. The applicant's excellent references and the high standing in which he was held would only serve to highlight the vulnerability of the victims.
That is not to say that the applicant's extremely good references should be used against him or in some way discounted simply because of that factor. Both the matters in favour of the applicant and those against him had to be evaluated by the trial Judge. In my view, his Honour weighed those matters with considerable care.
In addition, it is significant that the applicant has lived a blameless life for many years since this offending concluded - Wagenaar v The Queen [2000] WASCA 325, per Ipp J, at 21.
Notwithstanding the fact that the appeals against conviction in relation to counts 1, 4 and 6 were allowed when this matter was heard on

14 February of this year, I have reached the same conclusion as Stein AJ that the overall head sentence of 6 years, looked at in totality, cannot be said to be excessive.

I would also grant leave to appeal, but dismiss the appeal.
STEIN AJ:

Introduction

At the outset of the hearing of the applicant's appeal against sentence, following his plea of guilty to 23 counts on the indictment, senior counsel for the applicant, Mr Holdenson QC, drew attention to counts (1), (4) and (6) in the indictment. These are framed as counts of the applicant having incited a boy under the age of 14 years unlawfully and indecently to deal with him. Count 1 relates to complainant KNH and was alleged to have occurred between 1 January 1957 and 31 December 1958. Counts 4 and 6 relate to complainant GPS between 1 January 1964 and 31 December 1964. All were purportedly offences against s 183 of the Criminal Code. Counsel pointed out that no such offence was known to the law until 1972 when s 183 was amended to include incitement.
Counsel for the respondent, Mr Cock QC, accepted this situation in relation to the three counts but sought to amend count 1. Upon this being refused by the Court, the respondent agreed that the counts were bad and that the convictions with respect to those counts ought be quashed. Upon the applicant undertaking to forthwith file an application for an extension of time to appeal and for leave to appeal against those convictions, the Court made the following orders:
1.Application to extend time to appeal against convictions on counts 1, 4 and 6 allowed.
2.Appeal allowed.
3.Convictions and sentences on counts 1, 4 and 6 quashed.

The effect of the quashing of convictions on some counts

The question arose as to the effect of setting aside the three convictions on the appeal against sentence. The applicant submitted that it followed that the entire sentencing exercise of the trial Judge was vitiated relying on Pearce v The Queen (1998) 194 CLR 610 at 623 ‑ 624. I do not think that Pearce dictates the conclusion that the whole sentencing discretion is necessarily vitiated.

Counsel for the applicant submits that it is necessary that the Court resentence the applicant on the remaining 20 counts and that the Court is not entitled to review the sentence for error.
In Ryan v The Queen (1982) 149 CLR 1 at 23, Brennan J, when dealing with s 569(1) of the Crimes Act (Vic), said that if the conviction on one or more counts is quashed but not on others, the sentences in respect of the quashed convictions must be set aside while the sentences in respect of the others stand. However, the provision enabled anomalies to be corrected and empowers the Court to alter the sentence in such circumstances. Reference was made by Brennan J to the speech of Lord Tucker in R v Edirimanasingham [1961] AC 454 at 462 wherein it was said that the Court (in dealing with a similar provision) is empowered to substitute such sentence as may be warranted in law.
The High Court has recently considered s 569(1) in RHMcL v R (2000) 174 ACR 1. The appeal followed a resentencing by the Court of Appeal of Victoria following the quashing of four counts. The remaining convictions stood and the Court resentenced the offender by increasing the sentences on the remaining counts so that the total effective sentence was the same as that imposed by the trial Judge. To do otherwise would have led to a manifestly inadequate total sentence. The High Court held that the Court of Appeal did not err in applying s 569(1). The provision provides the Court with a choice - to affirm the sentence passed or pass sentence in substitution as it thinks proper and as may be warranted by law.
In considering the appeal against sentence, having quashed the convictions with respect to five counts, Malcolm CJ in Kailis v The Queen (1999) 21 WAR 100 was faced with the submission that the applicant had to be resentenced. After analysing the situation on the remaining counts his Honour said:
"In my opinion, justice would be done in this case by simply leaving the sentences imposed in respect of counts (2), (3), (5), (9) and (10) as they were imposed by the learned trial judge."
Section 693(1) of the Criminal Code (WA) is in similar terms to s 569(1) of the Crimes Act (Vic). It is plain that in the event of a successful appeal against conviction where other convictions remain, the Court "may pass such sentence in substitution … as they think proper, and as may be warranted in law …".
It is clear that the Court may resentence an applicant if it sees fit. However, it is not bound to do so and may determine, in an appropriate case, to affirm the sentence passed, see Kailis. In the instant appeal, the distinction may be academic because, either way, the same facts and circumstances are involved in the submissions. While the Court has undoubted power to resentence, it is my opinion that in this case the Court should review the sentence for error. In the end, however, I should say that it will make no difference to the sentence because, for reasons which will appear later, a resentencing would result in the same sentence as imposed by the learned trial Judge.

Appeal against sentence

Leaving to one side the three counts with respect to which the Court has set aside the convictions, the applicant pleaded guilty on 17 August 2000 to 20 offences involving six complainants. These comprise six counts of the applicant inciting indecent dealing with him by males under the age of 14 years and 14 counts of indecent dealings with males under the age of 14. The maximum penalty for each offence at the time they were committed was 7 years. The offences took place over a period of 25 or 26 years between 1957 or 1958 and 1984.
On 24 August 2000 Hammond CJDC sentenced the applicant to a head sentence of 6 years' imprisonment. Each of the counts attracted a sentence of 1‑1/2 years, which the learned Judge reduced to 1 year on each by his Honour's acknowledgment of the applicant's guilty plea and in recognition of his personal circumstances. His Honour structured the sentences into six groupings to reflect the six individual complainants. The sentences for the counts relating to each individual complainant were to be served concurrently, but cumulatively with respect to those groupings. This was as follows:

Counts	Sentence Imposed	Total
Counts 1 to 3	1 year each count to be served concurrently	1 year
Counts 4 to 7	1 year each count to be served concurrently	1 year
Counts 8 to 13	1 year each count to be served concurrently	1 year
Counts 14 to 17	1 year each count to be served concurrently	1 year
Counts 18 to 19	1 year each count to be served concurrently	1 year
Counts 20 to 23	1 year each count to be served concurrently	1 year
Cumulative Total	6 years

Count 1 has now been quashed, leaving two counts, numbered 2 and 3, in the first group. Counts 4 and 6 have also been quashed again leaving two counts, numbered 5 and 7, with regard to this complainant.

The facts

Count 2 took place on a date between 1 January 1957 and 31 December 1958 when the applicant invited the complainant KNH (a neighbour) to his house to play. While the complainant was at the house the applicant took him to a bedroom and lowered both his trousers and those of the complainant. The complainant came to be lying face down on the bed in the room and the applicant lay on top of him, placed his erect penis between the complainant's legs and buttocks and moved backwards and forwards until he ejaculated onto the complainant. The applicant was 22 or 23 years of age when he committed this offence. The complainant was aged eight or nine years.
Count 3 took place on another date during the same period when the applicant again invited the complainant to his house. The complainant went with the applicant to the granny flat at the house and the complainant lay on his stomach on some blankets on the floor after which the applicant lay on top of him, again put his erect penis between the complainant's buttocks and legs and moved backwards and forwards until he ejaculated onto the complainant.
Counts 5 and 7 relate to offences committed upon the complainant GPS at the Guildford Grammar School where the applicant was a boarding school teacher. The offences took place during 1964 when GPS was a boarder in year 5 of primary school.
In relation to count 5 the applicant called the complainant to his room from the dormitory, took out his penis and told the complainant to take his; that is, the complainant's, trousers off. The complainant did what he was told and the applicant told him to lie on the bed. When the complainant obeyed, the applicant lay on top of the complainant, who was on his stomach, and put his erect penis between the complainant's buttocks. He then rubbed back and forth for some time, simulating anal sex with the complainant although not penetrating him.
Count 7 took place on the same occasion. The applicant told the complainant to lie on his stomach on the bed and the applicant again placed his penis between the complainant's thighs. He moved his penis backwards and forwards until he ejaculated on the complainant. The complainant was then permitted to leave the room and return to the dormitory.
After this occasion the complainant recalls that the applicant regularly instructed him to go to his room and on numerous occasions placed his penis between the complainant's legs and rubbed back and forth until he ejaculated. Count 7 is therefore a count representative of that repeated activity. On no occasion did the complainant consent to the sexual activity involving the applicant and only submitted to it because of the applicant's position of authority over him and fear of the consequences if he refused.
Counts 8 to 13 relate to the complainant TJM, also a student at Guildford, beginning in 1965 when he commenced year seven as a boarder. He repeated the year and during both years the applicant was the housemaster in charge of the dormitory. The complainant was aged 12 and 13 at the time.
Counts 8 and 9 took place on a single unknown date in 1965 or 1966 and the complainant was awoken by the applicant and taken to the applicant's room adjacent to the dormitory. Once there, the applicant took off his clothes and the complainant's clothes and put his hand on the complainant's penis. He then masturbated the complainant until the complainant's penis was erect. While masturbating the complainant, the applicant asked him if he enjoyed it. The complainant was too frightened to say anything in reply, [count 8].
The complainant was then told to lie down on the applicant's bed and the applicant positioned him on his side before getting on the bed with him. The applicant was facing the complainant and put his erect penis between the complainant's upper legs and then masturbated himself until he ejaculated partly onto a piece of cloth and partly onto the complainant's legs and buttocks, [count 9].
Counts 10 and 11 took place on another occasion during the same period when the applicant again took the complainant from his bed in the dormitory to the applicant's bedroom. The applicant lay the complainant on his bed and undressed him before beginning to masturbate him. Again the complainant's penis became erect while the applicant was masturbating him, [count 10].
The applicant then got on the bed with the complainant, lay facing him and put his penis between the complainant's legs before reaching across the complainant's body and beginning to masturbate. Again the applicant masturbated until he ejaculated partly into a piece of cloth and partly onto the complainant's legs and buttocks. When he had finished masturbating the applicant wiped the complainant clean and then allowed him to dress and return to his bed in the dormitory, [count 11].
On a final occasion during the stated period, the applicant approached the complainant during the day when the complainant was in the sports storeroom. The applicant asked the complainant to go to the applicant's room and he did what he was told. When he got there, the applicant undressed him and lay him on the bed and then masturbated him until his penis became erect, [count 12].
The applicant then undressed himself, lay on the bed with the complainant and placed his penis between the complainant's legs before masturbating himself until he ejaculated into a piece of cloth, although he ejaculated partly onto the complainant's buttocks. The applicant wiped the complainant clean with a cloth and permitted him to get off the bed and dress. While the complainant and applicant were dressing, another teacher was heard approaching and the applicant told the complainant to get into his wardrobe. The complainant hid in the wardrobe but after a short time panicked and left. He was found by the other teacher and asked what he was doing but the applicant, who was in the bathroom adjacent to his bedroom, called out something which apparently staved off any further inquiry, [count 13].
Counts 14 to 17 concern the last of the Guildford complainants, SE, and took place during 1966. The complainant was a student in the preparatory school in grade five at the time and had just turned 10 years of age. The applicant was his dormitory master and class teacher.
On a date during the third term of 1966 the complainant was instructed by the applicant to wake him the following morning at about 6.30. The complainant did what he was told and the next morning at about 6.30 he went to the door of the applicant's bedroom and called out to him to wake up. The applicant did not appear to hear the complainant so the complainant moved closer to his bed and repeated for him to wake up.
When he approached the bed, the applicant took hold of him and pulled him onto the bed. The applicant then pulled down the complainant's pyjama pants and put his erect penis between the upper part of the complainant's thighs before thrusting back and forth between the complainant's legs until the applicant ejaculated. The applicant ejaculated onto the complainant's legs and buttocks and after doing so, he pulled up the complainant's pants and told him to go back to the dormitory, [count 14].
Count 15 took place on a second occasion during the latter part of 1966 when the applicant again asked the complainant to wake him up in the morning. The complainant awoke early and went to the applicant's bedroom at about 6.30 am and called out to him to wake up, but again the applicant did not respond. The complainant then went over to the applicant's bed and the applicant grabbed hold of him and placed him on the bed. The applicant lay on his side behind the complainant, pulled the complainant's pyjama pants down and placed his penis between the complainant's upper thighs before thrusting back and forth with his erect penis until he ejaculated on the complainant. He then pulled the complainant's pyjama pants up and instructed him to go back to the dormitory.
Count 16 took place on a third occasion during the third term of 1966 when the pattern described in the above two offences was repeated almost identically. Again the applicant thrust his penis in and out between the complainant's thighs until he ejaculated on the complainant. On no occasion does the complainant recall the applicant cleaning his semen off him.

Count 17 took place on a fourth occasion during the third term of 1966 when the events described above repeated themselves.
The offences in counts 14 to 17 inclusive, are representative of a course of conduct between the applicant and the complainant and the complainant recalls that the behaviour took place through 1967. On no occasion did the complainant voluntarily participate in the sexual activity but always did what he was told for fear of punishment if he refused to obey his teacher.
Complaints were eventually made to the headmaster in 1967 and the applicant was dismissed from the school in September of that year. Thereafter, the applicant obtained employment as a teacher at the Geelong College in Victoria. In 1975 the applicant commenced as a teacher at Scotch College, where he remained until his retirement in 1996.
Counts 18 and 19 concern the period during 1977 at Scotch College and the complainant PHW. This complainant was born on 21 May 1966 and in 1977 was a grade six student at the junior school. Count 18 took place when the applicant was in a classroom and the complainant walked in and saw him. The applicant had suggested to the complainant a game in which if either the complainant or the applicant caught the other alone in a classroom, they were entitled to hit the other with a cane. On this occasion the complainant reminded the offender of the game and the applicant agreed to play it. The applicant went to the back of the classroom and lay down on some beanbags. He pulled his shorts and underpants down far enough to expose his buttocks and directed the complainant to hit him on the buttocks with a cane. The complainant did so at the applicant's direction.
Count 19 took place on another day in 1977 when the applicant offered to drive the complainant home after school. The complainant went with the applicant and while driving home, the applicant stopped his car and handed the complainant a tube of toothpaste. The applicant told the complainant to rub toothpaste on the applicant's testicles and pulled aside his shorts, exposing one testicle.
The complainant put a small amount of toothpaste on the applicant's testicles applying it straight from the tube so as not to touch the applicant with his hand. However, the applicant told the complainant to rub the toothpaste into his testicles and the complainant reluctantly agreed. While the complainant was rubbing the applicant's testicles, the applicant said that the sensation was sexually exciting.
Counts 20 to 23 involve the last complainant, PWT, who was born on 3 May 1974 and a boarding school student at Scotch College junior school from grade 1. When he was in grade five in 1984 the applicant was his class teacher. Count 20 took place on a day during 1984 when the applicant asked the complainant to meet him before school at the school tennis courts. The complainant agreed to meet the applicant and the next morning went to a sports room where the applicant met him. Inside the room the applicant took down his trousers and underwear and told the complainant to strike him on the bare buttocks with an instrument. The complainant recalls this instrument as being a wooden table tennis bat. The complainant struck the applicant's buttocks repeatedly while the applicant masturbated.
Count 21 took place on another day in 1984 when the applicant again asked the complainant to meet him before school the next day in the same place. The complainant did so and the applicant went to the sports room where the applicant again pulled down his pants and underwear and told the complainant to strike him repeatedly on the buttocks with the same instrument. The complainant did so and the applicant masturbated while that happened.
Counts 22 and 23 are similar. On two occasions during the same period the applicant arranged with the complainant to meet him before school in the same sports room. On each occasion the applicant pulled down his pants and underwear and had the complainant strike him on the buttocks with the same implement. On the final occasion no words were spoken. The applicant simply gave the implement to the complainant and lowered his pants. On each occasion the applicant masturbated while the complainant was repeatedly striking him with the implement.
After the first such occasion the applicant told the complainant that he must not tell anyone what had happened and on the second occasion he asked the complainant if he had told anyone and was told that he had not.

Grounds of appeal

The grounds of appeal may be summarised as follows:
Ground 1: The discount given for the applicant's entering pleas of guilty was insufficient.
Ground 2:Failure to accord sufficient weight to the principle of totality by accumulating the sentences with respect to the offences against each complainant.
Ground 3:Insufficient weight accorded to the applicant's previous good character.
Ground 4:Insufficient weight accorded to the unlikelihood of the applicant reoffending.
Ground 5:Insufficient weight accorded to the applicant's age and state of health.
Ground 6:Excessive weight given to principle of general deterrence.
Ground 7:Overall sentence manifestly excessive.

Ground 1: Discount for Plea

Section 8(2) of the Sentencing Act 1995 expressly provides that a plea of guilty is a mitigating factor and the earlier in proceedings that it is made, the greater the mitigation. The reasons why a plea of guilty should attract a lower sentence than would otherwise be imposed are generally seen as threefold. First, the plea is a manifestation of contrition. Second, it has a utilitarian value to the efficiency of the justice system. Third, in special cases, such as sexual assaults involving children as victims, there is a particular value in avoiding the calling of witnesses, especially complainants. See Siganto v The Queen (1998) 194 CLR 656 at 664 and R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 386.
An important factor in determining the discount for the utilitarian value of the plea is its timing. During counsel's submission to the sentencing Judge, his Honour made a remark which, it seems to me, was fairly indicative of the timing of the plea (and consequent value to be placed upon it). His Honour indicated that this was not a fast-track plea entered at the first opportunity, nor on the morning of the trial; it was somewhere in between. This was indeed the position. When first interviewed by police, the applicant made virtually no admissions. In the second interview, he made limited admissions, falling short of the conduct to which he ultimately pleaded guilty. The applicant's legal representatives submitted two proposals for partial or inadequate pleas of guilty, which were rejected by the respondent. Ultimately, there was agreement as to the facts of the offences to which the applicant pleaded guilty.
His Honour said:
"I turn to the question of remorse and whether discount should be allowed for your plea. Notwithstanding the submissions of the crown, I am of the view that a significant discount ought to be allowed because of the plea of guilty that has been lodged at a stage well before the listing for trial and in circumstances whereby counsel had made it clear to the crown that there would not be a trial in these matters. At the end of the day, the pleas have saved the several complainants from the trauma and distress of giving evidence. There are issues of totality, concurrence and a discount or allowance for the plea to be taken into account."
The learned Judge went on to say that each offence ought attract a term of 1‑1/2 years (which I do not understand to be challenged). This was reduced to 1 year imprisonment in each case "in acknowledgment of your plea and in recognition of your indifferent health". Thus a discount of one‑third was given for the plea and matters personal to the applicant.
The amount of credit to be given for a plea of guilty is a matter of discretion for the sentencing Judge, Trescuri v The Queen [1999] WASCA 172 per Anderson J at [26]. It is apparent that his Honour was prepared to give only diminished or limited mitigatory effect to the personal circumstances of the applicant. Therefore, it is reasonable to assume that his Honour discounted the sentences for the applicant's plea by around 25 per cent. In Trescuri [25], Anderson J noted that sentencing discounts for pleas of guilty under the fast‑track system are commonly in the vicinity of 30 per cent.
While the pleas of guilty of the applicant were entitled to a significant discount, as his Honour found, I can discern no error in this regard. In my opinion, it cannot be said that his Honour failed to give sufficient weight to the applicant's pleas of guilty in the exercise of the sentencing discretion.

Ground 2 - Totality

As mentioned earlier, his Honour specifically made reference to the principle of totality and issues of concurrence. His judgment was that the sentences of 1 year with respect to each complainant and group of offences should be concurrent but that each concurrent 1 year term should be cumulative, thus producing a head sentence of 6 years' imprisonment. It is conceded on behalf of the applicant that it was open to the Judge to order some cumulation. However, it is submitted that it was not open to order a total or complete cumulation.
Three reasons are advanced for this submission. First, it is said that the timing of the Guildford offences (counts 5 and 7; counts 8‑13 and counts 14‑17) should have attracted a partial concurrency between the three "effective sentences". I can see nothing in this submission. His Honour was perfectly entitled, in exercising his sentencing discretion, to treat the offences against the three students as distinct and to accumulate the sentences with respect to each complainant. Indeed, it was appropriate to do so since they were separate transactions.
The second submission concerns s 82(2) of the Sentencing Act. It is maintained that his Honour paid no regard to the provision. The provision states:
"(2) An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order under subsection (3)."
Subsection (3) empowers the sentencing Court to order cumulation if the circumstances provided in subs (3)(a) or (b) obtain. In my opinion, provided there is a proper basis for an order for cumulation, nothing in s 82(2) assists the applicant. It seems to me that there was good reason to accumulate the distinct and separate offences with respect to each complainant. There is nothing in the point.
The final submission under this ground concerns the Judge's omission to review the aggregate sentence proposed and consider whether it was just and appropriate. His Honour did not take a "last look" at the total to see whether it was just and appropriate and proportionate to the degree of criminality involved, Mill v The Queen (1988) 166 CLR 59 at 62‑63.
It is conceivable, indeed probable, that Hammond CJDC checked the aggregate sentence to determine whether it was just and appropriate although he did not say so. However, his Honour did expressly refer to the need to take the totality principle into account, and he obviously did so in the sentencing. An examination of the aggregate sentence of 6 years, in light of the facts outlined earlier, soon reveals that it is "just and appropriate". The total does not "look wrong". Indeed, it appears to be an appropriate sentence for all the offences when considering the totality of the criminal behaviour. When looking at the aggregate sentence, one could certainly not conclude that it was "too much", see Mill at 63. Indeed, many might think that the aggregate sentence was on the low side for the offences.

Ground 3 - Previous Character

At the sentencing hearing, the applicant tendered large numbers of impressive character references. They revealed a picture of a man who devoted his life to teaching school students. Not only was the applicant an able teacher, but he was said to be dedicated to the welfare of the students in the schools in which he taught. In addition, he had consistently made contributions to the community. These matters are said to be deserving of much weight in mitigation but were, according to the submission, accorded little by the sentencing Judge.
His Honour made reference to the applicant's character references and their content. He added, however, that they did not indicate "the real picture" as revealed in the facts of the offences. The facts exposed the contrast between the applicant, adult, mature, well‑educated and sophisticated, dealing with children of quite tender years and over whom he had authority (save the first complainant). The applicant abused his position of great trust and authority. The incidents were not isolated. The period covered by the offences was extremely wide.
Good antecedents are unlikely to be weighty mitigatory factors in a case of prolonged sexual molestation by a mature adult of children entrusted to an offender's care, see Anderson J in Trescuri at [29].
Also to be taken into account is the fact that some of the counts are representative of a course of conduct and this diminishes the weight to be given to good antecedents, Trescuri at [28]. The grave abuse of trust is also, it seems to me, a very serious matter and outweighs mitigatory personal circumstances, such as previous good character. In a case such as this, the dominant sentencing considerations are punishment and general deterrence, see Johnston v The Queen, unreported; CCA SCt of WA (Anderson J), 22 March 1996 at 5.
It is clear from his Honour's sentencing reasons that he took account of the applicant's character references but accorded them a diminished role. As I have said, the discount of one‑third plainly included an allowance for matters personal to the applicant. This was appropriate and sufficient.

Ground 4 - Likelihood of Reoffending

His Honour accepted that there was agreement that the prospects of the applicant reoffending were "minimal or nil". It appears that his Honour took this into consideration but gave it a "diminished role" in the circumstances as he considered it a factor personal to the offender. In my view, his Honour was entitled to follow this course. He gave the factor weight as a mitigating circumstance but diminished its effect in the circumstances. I would reject this ground of appeal.

Ground 5 - Age and State of Health

It is submitted that his Honour gave insufficient weight to the applicant's poor state of health and no regard to his age, 65 years at the time of sentence.
As to the former, his Honour made specific reference to his "recognition of your indifferent health" when reducing the term for each count by one‑third. This was appropriate and sufficient.
As to age, it is correct that his Honour made no specific reference to the age of the applicant. However, he was plainly aware of it, hence his reference to the applicant not having the benefit of youth on his side. I can read nothing into that reference to indicate that the applicant's age, as a matter personal, was not taken into consideration.

Ground 6 - General Deterrence

While conceding that his Honour was entitled to take account of the sentencing principle of general deterrence, as he did, the applicant submits that excessive weight was given to this aggravating factor.
In my opinion, his Honour committed no error. In cases such as this, general deterrence is one of the dominating sentencing considerations. It is necessary for a sentencing Judge to reflect the public opprobrium of such offences and to demonstrate an intolerance for the gross abuse of positions of trust and authority by adults for the purpose of obtaining sexual gratification from children of tender years. The weight to be given to this factor was within the sentencing discretion of the Judge, who employed his discretion appropriately.

Ground 7 - Manifestly Excessive

The last ground maintains that the overall sentence is, in all the circumstances of the case, manifestly excessive. It is argued on behalf of the applicant that given his significant and genuine remorse, a significant element of mercy should have been extended. It is submitted that the overall sentence is out of proportion to the applicant's misconduct and outside the range of sentences appropriate for offences of this nature.
A way of testing the proposition is to examine the applicant's conduct in the light of the non-exhaustive list of relevant factors indicated by Murray J in Dempsey v The Queen, unreported; CCA WA; 960059C at 6 ‑ 7.
Whilst accepting that a "tariff" for sexual offences is elusive, Murray J listed some of the criteria which may assist in determining the length of a sentence. Hammond CJDC carried out this exercise, see AB 81.
His Honour found that the applicant's conduct in sexually engaging the young boys, under his supervision and care, heightened the degree of perversion. Six children were involved in the offending conduct. Although actual penetration did not occur, there were numerous incidents of simulated anal intercourse over a lengthy period. The disparity between the ages of the victims, all under 14 years and some only nine or 10 years, and the adult, mature, sophisticated male applicant, is self‑evident. Moreover, the applicant was in a position of authority and trust over the children who were vulnerable, being mainly at boarding school. His Honour also noted the contents of the victim impact statements which, he said, spoke eloquently of the effect of the offences upon the complainants. Further, the incidents were not of an isolated character. Indeed, it may be added that the offences must have been premeditated.
I agree with the remarks of the sentencing Judge. A head sentence of 6 years' imprisonment cannot be seen to be a manifestly excessive one. Indeed, it may be towards the lower end of the scale.
I should add that if it was necessary to resentence the applicant, and I do not accept that it is, an aggregate sentence in the order imposed by Hammond CJDC would be completely appropriate in all of the circumstances discussed earlier in these reasons. While I would grant leave to appeal, the appeal against sentence should be dismissed.