Magnuson v R
[2013] NSWCCA 50
•01 March 2013
This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Criminal Appeal
New South Wales
Case Title: Magnuson v R Medium Neutral Citation: [2013] NSWCCA 50 Hearing Date(s): 22 October 2012 Decision Date: 01 March 2013 Before: McClellan CJ at CL at [1]
Bellew J at [2]
Button J at [3]Decision: (1) Leave to appeal against sentence granted.
(2) Appeal against sentence allowed.
(3) Quash the commencement date of the nine sentences imposed for the offences committed against LM.
(4) In substitution all of the nine sentences imposed for the offences committed against LM are to commence on 26 February 2012.
(5) Quash the commencement date of the four sentences imposed for the offences committed against JM.
(6) In substitution all of the four sentences imposed for the offences committed against JM are to commence on 26 August 2013.
(7) Quash the non-parole period of 6 years of the sentence imposed for the offence of rape committed against JM and contained in count 3 of the indictment.
(8) In substitution impose a new non-parole period for the offence of rape committed against JM and contained in count 3 of the indictment of imprisonment for 5 years, to commence on 26 August 2013 and expire on 25 August 2018.
(9) The new date upon which the applicant is first eligible for release on parole is 25 August 2018.
Catchwords: CRIMINAL LAW - leave to appeal against sentence - error in approach to aggravating features contained in s 21A Crimes (Sentencing Procedure) Act 1999 - error in approach to s 21A(2)(ea) - error in approach to s 21A(2)(m)
CRIMINAL LAW - leave to appeal against sentence - old child sex offences - whether pattern of sentencing existed - no failure to reflect past sentence length in individual sentences - individual sentences not manifestly excessive - wholly cumulative sentences not in accordance with past sentencing practices - re-sentence in accordance with past practicesLegislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Probation and Parole (Serious Offences) Amendment Act 1987
Sentencing Act 1989Cases Cited: AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32
Featherstone v R [2008] NSWCCA 71; (2008) 183 A Crim R 540
Hanania v R [2012] NSWCCA 220
Ingham v R [2011] NSWCCA 88
Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497
Mottram v R [2009] NSWCCA 210
NLR v R [2011] NSWCCA 246
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Power v The Queen (1974) 131 CLR 623
PWB v R [2011] NSWCCA 84
R v AEM [2002] NSWCCA 58
R v Eagles (Court of Criminal Appeal, 16 December 1993, unreported)
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; (2002) 130 A Crim R 481
RLS v R [2012] NSWCCA 236
RWB v R [2008] NSWCCA 93; (2008) 184 A Crim R 453
R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
Rosenstrauss v R [2012] NSWCCA 25Category: Principal judgment Parties: Peter Magnuson (applicant)
The Crown (respondent)Representation - Counsel: Counsel:
G Jauncey (applicant)
F Veltro (Crown)- Solicitors: Solicitors:
Elie Rahme & Associates (applicant)
Solicitor for Public Prosecutions (Crown)File Number(s): 2009/192136 Decision Under Appeal - Court / Tribunal: District Court - Before: Ashford DCJ - Date of Decision: 20 May 2011 - Court File Number(s): 2009/192136
JUDGMENT
McCLELLAN CJ AT CL: I agree with Button J.
BELLEW J: I agree with Button J.
BUTTON J: On 20 May 2011 in the District Court of New South Wales at Sydney, her Honour Judge Ashford sentenced the applicant for a large number of offences. They were all of a sexual nature, and had been committed against three young girls. Two of them were the stepdaughters of the applicant, and one of them was the daughter of his cousin. The offences had been committed more than 25 years before the date of sentence. The applicant had defended three separate trials that led to the convictions.
I shall provide details of the offences and their sentences in a moment. It suffices to say at this stage that her Honour imposed a total head sentence of imprisonment for 19 years with a total non-parole period of imprisonment for 13 years. Clearly, special circumstances were found upon which a small variation in the statutory ratio was based. If that had not been the case, the total non-parole period would have been imprisonment for 14 years and 3 months.
Offences and objective features
The applicant was sentenced for 12 sexual offences against his stepdaughter KB, who was born in August 1969. He was sentenced for nine sexual offences against his stepdaughter LM, who was born in September 1972. And he was sentenced for four sexual offences against his relative JM, who was born in August 1967. Because of the multiplicity of offences, it is convenient to use a table to describe the offence, the offence creating provision, the applicable maximum penalty, the date of the offence, the age of the victim at the time of the offence, and any other noteworthy aspect. At the end of each table, a short summary of the objective features of each offence is provided. Again, due to the multiplicity of offences, that summary will be brief.
All of the data is derived from the remarks on sentence. Neither party to the appeal submitted that her Honour had made any error with regard to the material that underpins the following analysis.
OFFENCES - VICTIM KB
CT NO OFFENCE OFFENCE CREATING PROVISION/MAX PENALTY DATE OF OFFENCE AGE OF VICTIM OTHER ASPECTS 1 Indecent assault female under 16 years s 76 / 6yr 1 Aug 1977 - 31 Dec 1979 8 - 10 years 2 Indecent assault person under 16 years s 61E(1) / 6yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years 3 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 2 4 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 2 5 Indecent assault person under 16 years s 61E(1) / 6yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 2 6 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 2 8 Indecent assault person under 16 years s 61E(1) / 6y 1 Jan 1983 - 31 Dec 1984 13 - 15 years 9 Indecent assault person under 16 years s 61E(1)/6y 1 Jan 1983 - 31 Dec 1984 13 - 15 years 10 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 9 11 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 9 12 Indecent assault person under 16 years s 61E(1) / 6yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years Same event as Ct 9 13 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1984 13 - 15 years
The objective features of the offences involving KB were as follows. With regard to count one, the applicant approached KB whilst she was in her bedroom and touched the outside of her vagina for more than a few minutes. This occurred in the family home of the applicant and KB.
Counts two, three, four, five and six were committed as part of the same event at the family home in the master bedroom. In respect of count two, the applicant touched the outside of KB's vagina with his fingers whilst she was lying down on the bed. Count three was a continuation of count two: the applicant touched the inside of KB's vagina without her consent. With regard to count four, the applicant licked, without consent, KB's vagina as he was touching her with his fingers. With regard to count five the applicant rubbed his penis on the outside of KB's vagina. Count six reflected that the applicant asked KB to lick his penis and encompassed an attempt to place his penis in KB's mouth. (The applicant was acquitted on count seven.)
The criminality of count eight occurred on a separate occasion in the same family home. The applicant touched and licked KB's vagina, and then moved her onto a bed where he rubbed his penis on the outside of her vagina for a few minutes. The applicant ejaculated on KB's stomach.
Counts nine, ten, eleven and twelve were all committed as part of the same event, again on a separate occasion but in the same home. Count nine was founded on an act of touching the outside of KB's vagina. Count ten reflected that the applicant moved his penis to the opening of KB's vagina. Count eleven reflected an act of cunnilingus upon KB. Count twelve reflected the applicant rubbing his penis against the outside of KB's vagina.
Count thirteen occurred on a separate occasion in the family home. The applicant inserted his penis into KB's vagina without her consent. The applicant held KB down on the bed by her shoulder. After the event, KB was able to escape and run to the bathroom.
OFFENCES - VICTIM LM
CT NO OFFENCE OFFENCE CREATING PROVISION / MAX PENALTY DATE OF OFFENCE AGE OF VICTIM OTHER ASPECTS 1 Indecent assault female under age of 16 years s 76 / 6yr 1 Jan 1980 - 31 Dec 1980 7 - 8 years 2 Indecent assault female under age of 16 years s 76 / 6yr 1 Jan 1980 - 31 Jul 1981 7 - 8 years 3 Indecent assault person under 16 years s 61E(1) / 6yr 1 Jan 1982 - 31 Dec 1982 9 - 10 years 4 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1983 10 - 11 years 6 Indecent assault person under 16 years s 61E(1) / 6yr 1 Jan 1983 - 31 Dec 1983 10 - 11 years 7 Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr 1 Jan 1983 - 31 Dec 1983 10 - 11 years 9 Incite person under 16 years to commit act of indecency s 61E(2) / 2yr 1 Jan 1983 - 31 Dec 1983 10 - 11 years Same event as Ct 7 10 Indecent assault person under 16 years s 61E(1) / 6yr 1 Dec 1983 - 7 Feb 1984 11 years 11 Incite person under 16 years to commit act of indecency s 61E(2) / 2yr 17 Sep 1984 - 31 Dec 1984 12 years
The objective features of the offences involving LM are as follows. Count one reflected that the applicant entered the bedroom of LM and placed his hand under the blanket to touch the outside of LM's vagina for a few minutes. This offence occurred in the family home of the applicant and LM.
Count two reflected that, on a separate occasion in the family home, the applicant again entered the bedroom of LM and touched her vagina with his fingers.
Count three occurred as part of a separate incident. In the master bedroom of the family home, the applicant took LM's hand and made her touch his penis.
Regarding count four, the applicant was in LM's bedroom at the family home, and he licked her genitals without her consent. (The applicant was acquitted on count five).
As for count six, the applicant placed LM's hand on his penis and made her stroke it until he ejaculated. This offence also occurred in the family home.
Counts seven and nine occurred as part of the same event. (The applicant was acquitted on count eight.) Count seven reflected the fact that the applicant told LM to "lick his penis like a lollypop" and LM reluctantly did so. During the course of count seven, the applicant pushed LM's head down on his penis and caused LM to gag. As for count nine, the applicant stroked his penis until he ejaculated, after which he told LM to taste his semen. LM again reluctantly did so. This series of offences also occurred in the family home, however it is not clear whether it was a separate occasion to count six.
The offence in count ten occurred on a separate occasion on a boat that the applicant was minding at the time. The applicant touched LM's vagina with his hand.
Count eleven reflected that, on an occasion when LM was home alone with the applicant, the applicant, whilst stroking his penis, asked LM if he could put his penis in LM's vagina. She refused and walked away from him.
OFFENCES - VICTIM JM
CT NO OFFENCES OFFENCE CREATING PROVISION/MAX PENALTY DATE OF OFFENCE AGE OF VICTIM OTHER ASPECTS 1 Commit act of indecency towards female under age of 16 years s 76A / 2yr 1 Jan 1977 -30 Nov 1977 9 - 10 years 2 Indecent assault female under age of 16 years s 76 / 6yr 1 Jan 1977 -30 Nov 1977 9 - 10 years Same event as Ct 1 3 Ravish and carnally know person w/o consent s 63 / life 1 Jan 1977 -30 Nov 1977 9 - 10 years Same event as Ct 1 4 Indecent assault female under age of 16 years s 76 / 6yr 1 Jan 1977 -30 Nov 1977 9 - 10 years
The objective features of the offences involving JM are as follows. Counts one, two and three occurred as part of the same event when JM was visiting the applicant at his home. With regard to count one, the applicant entered the room of JM and JM's sister, removed his penis from his trousers, and asked them if they wanted to play with it. Count two asserted that the applicant then took JM's sister from the room, returned to the room where JM was located, pulled aside her underwear and placed his little finger into JM's vagina. JM felt a burning sensation and requested that the applicant stop. He did not do so. Count three reflected that the applicant then penetrated JM's vagina with his penis "a short distance", causing JM pain and fear.
Count four occurred on a separate occasion, in the confines of a motor vehicle. The applicant removed his penis from his trousers and ordered JM to suck it. The applicant then proceeded to place his penis in her mouth for a short period of time.
To complete the picture with regard to the objective features of the offences, a victim impact statement from each victim was received by her Honour. Of course, each of the victims was a grown woman by the time of the preparation of that document. There is no need to detail those statements; it suffices to say that the offences of the applicant have had very deleterious effects on the psychological wellbeing of each of the victims, and that those effects have caused decades of suffering.
Subjective features
Despite the three trials, by the time of sentence the applicant had expressed remorse about the crimes he had committed against his stepdaughters, though not about those against his relative.
The applicant was born in 1946. He was aged 64 years when he stood for sentence, and had been aged from 30 to 38 years when he committed the offences.
The applicant had not been convicted of any offences committed after the last one under consideration. Accordingly, her Honour dealt with him on the basis that he had been a person of good character for almost 27 years.
However, it is noteworthy that, in 1971, the applicant had been dealt with for indecently assaulting a male, and for assaulting a female under the age of 16 years with an act of indecency. He was sentenced in the Penrith Court of Quarter Sessions, and received a good behaviour bond for 3 years for each offence.
Evidence from two psychiatrists revealed some important features. The first was that the applicant gave a history of having been sexually assaulted as a child by two separate men. Although her Honour did not explicitly accept that history, she recounted it without demurrer in the remarks on sentence. One of the psychiatrists expressed the opinion that those events could have played a role in the commission of the offences by the applicant.
The second important feature was that, during a lengthy career in the Navy, the applicant had been on military service in Vietnam and Indonesia. He had undertaken some extremely dangerous work, such as underwater explosive disposal. Over the years he had developed a serious problem with anxiety and thereafter depression. That in turn led to self-medication with alcohol. His abuse of alcohol escalated to the point of the applicant needing to consume a bottle of sherry for breakfast. To his credit, he had sought help, and had been admitted to two facilities on more than one occasion for treatment for alcohol dependence and post-traumatic stress disorder. At the time of sentencing, the applicant was being treated with antidepressants.
The third important feature was that, despite the denial of the applicant that he had a sexual attraction to children, one of the psychiatrists diagnosed him with a "disorder of sexual arousal consistent with paedophilia".
Her Honour noted the willingness of the applicant to seek help, both in the past and in the future, and assessed his prospects of rehabilitation as good.
Sentences imposed
Again, in light of the number of offences, it is convenient to explain the sentences imposed by way of three tables. Each table will show the count number, the head sentence and non-parole period, the commencement date, and any other noteworthy aspect.
SENTENCES - VICTIM KB
CT NO OFFENCE HEAD SENTENCE / NPP START DATE OTHER 1 Indecent assault female under 16 years 2yr / 1yr 26 Aug 2009 Wholly concurrent with Ct 13 2 Indecent assault person under 16 years 3yr / 1yr 6m 26 Aug 2009 Wholly concurrent with Ct 13 3 Sexual intercourse without consent with person under 16 years 4yr / 2yr 26 Aug 2009 Wholly concurrent with Ct 13 4 Sexual intercourse without consent with person under 16 years 4yr / 2yr 26 Aug 2009 Wholly concurrent with Ct 13 5 Indecent assault person under 16 years 3yr / 1yr 6m 26 Aug 2009 Wholly concurrent with Ct 13 6 Sexual intercourse without consent with person under 16 years 4yr / 2yr 26 Aug 2009 Wholly concurrent with Ct 13 8 Indecent assault person under 16 years 3yr / 1yr 6m 26 Aug 2009 Wholly concurrent with Ct 13 9 Indecent assault person under 16 years 3yr / 1yr 6m 26 Aug 2009 Wholly concurrent with Ct 13 10 Sexual intercourse without consent with person under 16 years 4yr / 2yr 26 Aug 2009 Wholly concurrent with Ct 13 11 Sexual intercourse without consent with person under 16 years 4yr / 2yr 26 Aug 2009 Wholly concurrent with Ct 13 12 Indecent assault person under 16 years 3yr / 1yr 6m 26 Aug 2009 Wholly concurrent with Ct 13 13 Sexual intercourse without consent with person under 16 years 8yr / 4yr 26 Aug 2009 Operative sentence SENTENCES - VICTIM LM
CT NO OFFENCE HEAD SENTENCE / NPP START DATE OTHER 1 Indecent assault female under age of 16 years 2 yr / 1 yr 26 Aug 2013 Wholly concurrent with Cts 4 and 7 2 Indecent assault female under age of 16 years 2 yr / 1 yr 26 Aug 2013 Wholly concurrent with Cts 4 and 7 3 Indecent assault person under 16 years 3yr / 1yr 6m 26 Aug 2013 Wholly concurrent with Cts 4 and 7 4 Sexual intercourse without consent with person under 16 years 6yr / 3yr 26 Aug 2013 Operative sentence; commences at the end of operative non-parole period of 4 years for offences against KB 6 Indecent assault person under 16 years 3yr / 1yr 6m 26 Aug 2013 Wholly concurrent with Cts 4 and 7 7 Sexual intercourse without consent with person under 16 years 6yr / 3yr 26 Aug 2013 Operative sentence; commences at the end of operative non-parole period of 4 years for offences against KB 9 Incite person under 16 years to commit act of indecency 1yr 6m / 9m 26 Aug 2013 Wholly concurrent with Cts 4 and 7 10 Indecent assault person under 16 years 3yr / 1yr 6m 26 Aug 2013 Wholly concurrent with Cts 4 and 7 11 Incite person under 16 years to commit act of indecency 1yr 6m / 9m 26 Aug 2013 Wholly concurrent with Cts 4 and 7
SENTENCES - VICTIM JM
CT NO OFFENCE HEAD SENTENCE / NPP START DATE OTHER 1 Commit act of indecency towards female under age of 16 years 1yr 6m / 9m 26 Aug 2016 Wholly concurrent with Ct 3 2 Indecent assault female under age of 16 years 4 yr / 2yr 26 Aug 2016 Wholly concurrent with Ct 3 3 Ravish and carnally know person without consent 12 yr / 6yr 26 Aug 2016 Operative sentence; commences at the end of the operative non-parole period of 3 years for offences against LM. 4 Indecent assault female under age of 16 years 4 yr / 2 yr 26 Aug 2016 Wholly concurrent with Ct 3
Furthermore, annexed to this judgement is a diagram that seeks to explain the complete structure of the sentences imposed upon the applicant in a readily comprehensible form. It should be noted that, due to the multiplicity of counts, that diagram extends over three pages.
In overview, for the 12 offences committed against KB, the applicant received a total head sentence of 8 years with a total non-parole period of 4 years.
For the 9 offences committed against LM, the applicant received a total head sentence of 6 years with a total non-parole period of 3 years.
For the 4 offences committed against JM, the applicant received a total had sentence of 12 years with a total non-parole period of 6 years.
The total non-parole period for the offences committed against JM is wholly cumulative upon the total non-parole period for the offences committed against LM, which in turn is wholly cumulative upon the total non-parole period for the offences committed against KB.
As I have indicated, the overarching sentence imposed upon the applicant by her Honour was a total head sentence of 19 years with a total non-parole period of imprisonment for 13 years
Grounds of appeal
Eleven grounds were originally notified. Grounds four and five were abandoned before the hearing. The remaining grounds are inter-related to a degree. For that reason, it is convenient to consider the remaining grounds in two groups.
GROUP ONE
Ground two
"Her [H]onour erred in finding that the vulnerability of the victims due to their age was an aggravating factor."
Ground three
"Her [H]onour erred in finding that the offences occurring in the homes of the victims was an aggravating feature."
Ground ten
"Her Honour erred in finding as an aggravating feature that there had been multiple victims."
Background and submissions
These three grounds are founded on the following portion of the remarks on sentence:
"Where there is a series of offences of course, the repeated nature of the offences will make the level of criminality more serious. It was submitted by the Crown that the following factors of aggravation apply. (1) the offences were almost all committed in the family home, (2) there was an abuse of the position of trust or authority as previously noted, (3) the victims were vulnerable because of their age, and (4) the offences involved multiple victims in a series of criminal acts.
Counsel for the offender says that the harm caused does not exceed that which is already presumed, and there was no planning beyond that which is inherent in cases of this kind. I accept each of those submissions."
With regard to all of these grounds, counsel for the applicant submitted that the sentence "I accept each of those submissions" demonstrates that her Honour was accepting the submissions of both parties, and not merely the two submissions of defence counsel. Whilst accepting that there was some ambiguity about the matter, counsel for the applicant submitted that that was the better reading of the remarks on sentence.
He submitted that such an approach demonstrated a number of errors with regard to the establishment of aggravating features in s 21A of the Crimes (Sentencing Procedure) Act 1999.
As for ground two, founded on s 21A(2)(l) of the Crimes (Sentencing Procedure) Act, counsel for the applicant submitted that her Honour had regarded the age of the victims as an aggravating feature with regard to all offences, and not merely some of them, as the Crown Prosecutor at first instance had submitted her Honour should do. Counsel for the applicant made clear in his written submissions in this Court that it would have been open to her Honour to adopt the approach contended for by the Crown. That approach was to differentiate between offences and find the circumstance of aggravation established with regard to some, but not all, of the offences. But, he submitted, the remarks on sentence show her Honour did not adopt that course.
As for ground three, founded on s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act, counsel for the applicant pointed to the line of authority to the effect that the circumstance of aggravation of an offence being committed in the home of a victim cannot be made out when the offender is ordinarily there, as opposed to an intruder. On the facts of this matter, he submitted, the applicant never committed any of the sexual offences as an intruder. The family home to which her Honour referred was the home of the applicant.
As for ground ten, founded on s 21A(2)(m) of the Crimes (Sentencing Procedure) Act, counsel for the applicant submitted that each offence related to one victim. Each offence came before her Honour for separate consideration, and for the imposition of a separate sentence. Therefore it was erroneous, with regard to each offence, to find that the aggravating feature of there being multiple victims had been made out. Of course that was a feature of the sentencing exercise a whole, he submitted, but that should have been reflected in the sentencing structure and the total operative sentence, not as a matter of aggravation with regard to each individual sentence.
In this Court, counsel for the Crown made the following responses. As for ground two, the Crown drew attention to the delineation between offences in the written submissions of the Crown at first instance, and submitted that it was consistent with authority. In any event he submitted that analysis of the sentences actually imposed suggests that her Honour had not aggravated the offences by way of the age of the victim, in the practical sense of imposing a sentence that was longer.
As for ground three, he submitted that a sentence imposed for an offence that had not been committed in the home was identical to the sentences imposed for equivalent offences that had been committed in the home. Therefore, he submitted, even if there had been an error, one could infer that the aggravating feature had had no effect on the sentences actually imposed. In the circumstances, this Court would not intervene.
As for ground ten, the Crown submitted that the written submissions at first instance demonstrate that the Crown was not asking her Honour to aggravate any offence on the basis that there were multiple victims. Instead, the sentencing structure as a whole should and would reflect that fact. He submitted that the written submissions at first instance of the Crown merely invited attention to a number of counts that were committed in the context of other offences against the same victim. Accordingly, to the extent that her Honour made clear that she was merely adopting the submissions of the Crown, no error was demonstrated.
Determination
I am prepared to adopt the reading of the final sentence in the extract from the remarks on sentence for which the counsel for the applicant contends. But even on that expansive reading, ground two must fail. That is because her Honour was indicating that her Honour accepted the submission of the Crown, and counsel for the applicant in this Court concedes that the written submissions of the Crown at first instance on this point were correct. It is true that her Honour did not deal with the submission in detail in the remarks on sentence. But there is nothing in the remarks on sentence to suggest that her Honour went beyond the submission of the Crown, which counsel for the applicant concedes was correct in its discriminating approach.
It follows that I would not uphold ground two.
However, grounds three and ten are in a different category.
With regard to ground three, the applicant was not an intruder in the premises in which the offences took place. To the contrary, he lived there.
I accept the submission of counsel for the applicant that, in those circumstances, the fact that almost all of the offences were committed in the family home could not be a matter of aggravation: see Ingham v R [2011] NSWCCA 88 at [112] and NLR v R [2011] NSWCCA 246 at [22].
Accordingly, ground three is made out.
Finally, as for ground ten, perhaps contrary to the submission of the Crown at first instance, her Honour aggravated the offences on the basis of the multiplicity of the victims. That, I respectfully consider, was an error. Her Honour also, it seems in conformity with the submission of the Crown, aggravated the offences on the basis that they were part of a series of criminal acts. But that circumstance of aggravation is directed towards offences that themselves encompass a series of criminal acts. It is not directed towards offences that take their place as one of a series of criminal acts. The distinction is important, and was drawn in R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 at [28] - [29]. It follows that part of the approach of her Honour was also an error.
In short, with regard to the aggravating features of there being a multiplicity of victims and there having been a series of criminal acts, I consider that her Honour has erroneously taken them into account with regard to individual offences that were, in truth, committed against one victim only, and encapsulated one criminal act only.
It follows that I would uphold ground ten.
In summary, I would uphold two grounds of appeal founded on the proposition that her Honour erroneously took into account aggravating features. Whether those established errors will lead to reduction in any of the sentences imposed upon the applicant is a separate question, due to the operation of s 6(3) of the Criminal Appeal Act 1912. I shall return to that question later in my judgment.
GROUP TWO
Ground one
"Her Honour erred in making the non-parole period of each of the three groups of charges wholly cumulative upon each other."
Ground six
"Her Honour erred in failing to give weight to the sentencing statistics, particularly in relation to the offences involving [JM]."
Ground seven
"Her Honour erred in failing to take general nature of the sentencing patterns at the time of the offending behaviour [sic]."
Ground eight
"Her Honour erred in giving undue weight to general deterrence in circumstances where there had been considerable delay between the offending in the time of sentencing where there had been reform to the offender [sic]."
Ground nine
"Her Honour erred in failing to set the non-parole period in accordance with the provisions of the Parole of Prisoners Act 1966 (NSW) and Probation and Parole Act 1983 (NSW) in the fixing of the non-parole terms."
Ground eleven
"The sentences imposed were manifestly excessive."
Background and submissions
The first five grounds above underpinned the last. At the hearing of the appeal, counsel for the applicant submitted that his central complaint was that the sentences, both individually and in their total effect, do not adequately reflect the sentencing practices that existed at the time of the commission of the offences.
It is convenient to discuss ground eight first. The ground asserts that undue weight has been given to a relevant factor. To my mind that is, in truth, a particular of ground eleven: see Hanania v R [2012] NSWCCA 220 at [33]. It follows that I will consider it when I come to consider ground eleven.
But it is useful to say at this stage that, whilst it is true that the applicant had not offended again since the last of the offences, it is also true that, having sexually assaulted his three victims over many years, he escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that time. Furthermore, even if the "reform to the offender" had been truly exemplary, general deterrence would still have had a significant role to play in sentencing an offender who was convicted of 25 sexual offences after three trials, those offences having been committed against three young girls over an extended period.
I would not uphold ground eight as a separate ground
Grounds six, seven and eleven focus upon the fact that her Honour was sentencing in 2011 for offences committed many years before.
The submission of counsel for the applicant can be encapsulated in a number of propositions.
First, it was incumbent upon her Honour when sentencing the applicant to take into account the pattern of sentencing that existed at the time of the commission of the offences.
Secondly, material before her Honour and this Court in the form of sentencing statistics and other material was not able to demonstrate the relevant sentencing pattern with perfect clarity. But it was sufficient to establish that sentences were markedly more lenient at the time of the commission of the offences in question.
Thirdly, that is especially the case with regard to the offence of indecent assault, which forms a substantial proportion of the offences of which the applicant was convicted. Furthermore, the proposition holds true even when one takes into account that, prior to 1981, many offences that would nowadays be dealt with as founded upon sexual intercourse were dealt with as indecent assaults.
Fourthly, not only were sentences in those days more lenient, but also the general rule was that non-parole periods were between one-third and one-half of their head sentences. Her Honour should have adopted a sentencing structure that reflected that proposition, not only with regard to individual sentences, but also with regard to the overarching total head sentence and total non-parole period.
Fifthly, the head sentence of imprisonment for 12 years with a non-parole period of imprisonment for 6 years imposed for the offence of rape committed against the victim JM is markedly inconsistent with sentencing practices in 1977.
Sixthly and finally, error has been established, and this Court should intervene to correct it by reducing the total head sentenced to some degree and by reducing the total non-parole period markedly.
In response, the Crown made the following submissions.
First, he accepted that it was incumbent upon her Honour to take into account sentencing practices at the time of the commission of the offences. However, he submitted that that aspect of the process had been specifically drawn to the attention of her Honour, and reference was made to it in the remarks on sentence. In short, he submitted that this was not a case where a relevant consideration on sentence had been completely overlooked; rather, it was a case in which a relevant factor had indeed been considered, and the applicant was complaining merely about the discretionary decision as to how to reflect it in the sentence.
Secondly, he accepted that sentences for sexual offences have increased since the commission of the last offence of the applicant in 1984. He referred specifically to the introduction of "truth in sentencing" (by which I understand him to mean the abolition of remissions many years ago), and the commencement of the regime of standard non-parole periods.
In oral argument, counsel for the Crown stated that he did not cavil with the proposition that sentences for sexual offences have increased markedly in the past 25 years.
Nevertheless, he submitted thirdly that her Honour had explicitly referred to the matter in the remarks on sentence, and taken it into account. In the circumstances, this Court would be slow to intervene with regard to the discretionary question as to what should be the ultimate sentence, in light of the application by her Honour of the relevant principle.
Fourthly, he submitted that, in truth, the statistics and other materials provided to her Honour and before this Court do not clearly establish that sentences imposed at the time of the commission of the offences were markedly below those imposed by her Honour. With regard to the particular challenge against the sentences imposed by her Honour for offences of indecent assault, he submitted that that proposition of counsel for the applicant could not be sustained.
Fifthly, he rejected the proposition that one can be satisfied that the sentence imposed for the rape of JM has been demonstrated to be inconsistent with sentencing patterns prevailing at the time of that offence. He reminded the Court that the offence was committed against a girl of 9 or 10 years of age who was in the care of the applicant, and that the offence inherently featured penile vaginal penetration. He also noted the fact that the maximum penalty for the offence of rape at the time was imprisonment for life, and that the offence had carried the death penalty until 1955. He submitted that nothing serves to establish that the sentence imposed by her Honour was inconsistent with the range of sentences imposed historically for that offence.
Sixthly, he accepted that there is authority for the proposition that sentences for offences committed before the introduction of a statutory ratio between a head sentence and a non-parole period should generally seek to replicate the practice of the non-parole period then being about 50 per cent of the head sentence. However, he sought to demonstrate by reference to authority that that is not an ironclad rule, and that this Court has demonstrated a degree of flexibility with regard to the question.
Seventhly and finally, he submitted that, even taking into account the sentencing patterns of the 1970s and 1980s, both a sentencing judge and this Court must impose a sentence today that reflects the overall criminality of an offender, along with a non-parole period that reflects the minimum period of incarceration required to be served.
In short, while accepting the correctness of some of the submissions of counsel for the applicant, his ultimate submission was that this Court would not interfere with the sentences imposed.
Determination
At the outset, I wish to emphasise that the following is a discussion of the imposition of appropriate sentences for sexual offences committed against children in the vicinity of three decades ago. My judgment says nothing about appropriate sentences for such offences committed today, or in the more recent past.
Generally, I accept the propositions of counsel for the applicant. I consider that the following principles are established.
It is true that, for over a decade, it has been clear that a sentencing judge dealing with very old offences must take into account the sentencing patterns that existed at the time of the offences: see R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; (2002) 130 A Crim R 481.
If such a pattern is unable to be discerned, the judge should commence the sentencing process in the usual way; that is, by reference to the maximum penalty, and the place in the range of objective gravity occupied by the offence: see Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 at [66] - [71] per Howie J (with whom Fitzgerald JA agreed).
Even if a sentencing judge does take an established sentencing pattern into account, a failure adequately to reflect the principle and the relevant sentencing pattern may cause the sentence to be manifestly excessive, or otherwise erroneous: see RWB v R [2008] NSWCCA 93; (2008) 184 A Crim R 453 at [24] - [26].
If sentencing for offences committed at a time when the statutory ratio did not exist, sentencing judges should sentence in accordance with that fact: see AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32 at [36] - [37] and Rosenstrauss v R [2012] NSWCCA 25 at [16].
Having said that, a court sentencing today with regard to old offences with regard to which a different sentencing pattern can be discerned must nevertheless bear in mind that, since 1974, it has been established that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice: Power v The Queen (1974) 131 CLR 623, referred to in AJB v R and many subsequent cases dealing with the principle under discussion.
Finally, in appeals to this Court, reduction has not been automatic, even if it is determined that the sentencing judge failed to advert to the principle: see, for example, Mottram v R [2009] NSWCCA 210 and RLS v R [2012] NSWCCA 236.
Applying those principles to this case, I consider that a sentencing pattern with regard to sexual offences committed against children in the late 1970s and early 1980s can be established. That is founded upon five factors. The first is the statistics that were before her Honour and this Court relating to disposition of offences in 1976 and 1978. The second is summaries of cases. Some were provided by the parties to her Honour. Others are contained in other decisions of this Court dealing with this question. The third is the general increase in sentences that has occurred across the board in New South Wales over the past quarter century. The fourth is the upward movement in maximum penalties with regard to the crimes of the applicant between the period under consideration and today. The fifth is judicial memory. I shall deal with each of those factors in turn.
Statistics from the 1970s
I consider that the statistical material provided to her Honour demonstrates that the offence of indecent assault, including against children, was dealt with more leniently many years ago than it is now. The document entitled "New South Wales Statistics of Higher Criminal Courts 1976" and published by the Australian Bureau of Statistics, NSW Office, shows that 77 offenders were dealt with that year for indecently assaulting a female. (These statistics do not differentiate between offences committed against adults and children.) Of those, only 24 were imprisoned. Of the 26 offenders dealt with for indecently assaulting a male or committing an act of indecency with a male, only 10 were imprisoned.
It will be recalled that, before 1981, indecent assault encompassed many sexual acts that fall within the definition of sexual intercourse today. It will also be recalled that the statistics to which I refer are reflective of dispositions in the higher courts, and not in the Courts of Petty Sessions.
A document with an identical title and from the same source but pertaining to 1978 shows that, of 85 offenders convicted in the higher courts of indecently assaulting a female, only 36 were imprisoned. With regard to the 27 offenders convicted of indecently assaulting a male or committing an act of indecency with a male, only 12 were imprisoned.
With regard to both years, an examination of the length of sentences imposed upon those who were imprisoned shows that they were short compared to those imposed for equivalent offences today. For example, in 1976, of the 24 offenders imprisoned for indecently assaulting a female, 16 received a non-parole period of less than one year. In 1978, of the 36 offenders imprisoned for that offence, 13 received a non-parole period of less than 1 year, and 27 received a non-parole period of less than 2 years.
In short the statistics provide support for the proposition that dispositions and sentences for the offence of indecent assault were more lenient in the late 1970s than they are today.
I turn to consider the same statistics with regard to the offence of rape. It will be recalled that, until 1981, it carried a maximum penalty of imprisonment for life, and was restricted to offences founded upon penile vaginal sexual intercourse.
The statistics from 1976 and 1978 demonstrate that lengthy head sentences were imposed for that offence.
In 1976, of the 69 offenders convicted of rape, 68 were imprisoned. Of those 68, 35 received a head sentence of imprisonment of between 5 and 10 years, and 25 received a head sentence of imprisonment for 10 years or more.
In 1978, all 62 offenders convicted of rape were imprisoned. Thirty-two received a head sentence of between 5 and 10 years, and 25 received a head sentence of imprisonment for 10 years or more.
Those statistics do not support the proposition that head sentences for rape in the late 1970s were shorter then head sentences for an analogous offence committed today.
However, the picture is slightly different with regard to non-parole periods imposed for the offence of rape in the latter half of the 1970s.
In 1976, it is true that 19 offenders received a non-parole period of imprisonment for 5 years or more. On the other hand, 30 offenders received a non-parole period of less than 3 years.
In 1978, of the 62 persons convicted and imprisoned, 10 received a non-parole of imprisonment for 5 years or more. On the other hand, 19 received a non-parole period of less than 3 years.
I consider that those statistics provide some support for the proposition that the range of non-parole periods imposed in the late 1970s for the offence of rape was more lenient than the range of non-parole periods imposed for an analogous offence today.
In short, the statistics from 1976 and 1978 provide some support for the proposition that punishments for serious indecent assaults have become more severe. The statistics do not support that proposition with regard to head sentences for the offence of rape, when compared to its modern analogues. The statistics provide a small amount of support for the proposition that non-parole periods have become more severe with regard to offences that, prior to 1981, would have been prosecuted as rape.
Decisions of this Court
Secondly, tables and summaries of cases support the proposition that sentences for sexual offences against children have increased. A table prepared by the research section of the Public Defenders Chambers was placed before her Honour, and this Court. It relates to appeals between 1983 and 1991 for offences against s 61D of the Crimes Act 1900; that is, offences of sexual intercourse without consent with a person under the age of 16 years. There is no need to annex a copy of that table to my judgement, as I understand that it is readily available on the Internet.
That table shows two things. The first is that sentences, both as to head sentence and non-parole period, moved upward to some degree during that period. The second is that, at the beginning of the period, sentences, and especially non-parole periods, were lenient by the standards of today.
Separately, in considering the question of the establishment of sentencing patterns for historical sexual offences against children, decisions of this Court have provided reviews of sentencing for such offences in the past.
In Featherstone v R [2008] NSWCCA 71; (2008) 183 A Crim R 540, Bell JA (as her Honour then was) at [33] - [44] provided details of a number of decisions of this Court between 1990 and 1998 with regard to the sexual assault of children. I am of the view that, considered as a whole, those summaries show that sentences for such offences have moved upwards.
To take but one example from that review, it is instructive to consider the case of R v Eagles (Court of Criminal Appeal, 16 December 1993, unreported). In Featherstone v R, Bell JA summarised R v Eagles as follows:
"[T]he applicant applied for leave to appeal against the severity of sentences imposed on him for 18 assaults committed upon five young boys. A number of the offences occurred in circumstances in which the victim had come into contact with the applicant through his participation in the scouting movement. In one instance the applicant had been baby-sitting the victim whilst his mother, a near neighbour, worked nightshift. The offences included counts of homosexual intercourse with a male under 18 years under to s 78K, an offence punishable by a maximum term of penal servitude for 10 years. These offences involved anal intercourse with boys aged 10 years and 11 years. The offender defended the first of the charges involving victim A, a 10 year-old child. Following his conviction he pleaded guilty to offences involving the other four victims and asked that a further number of offences be taken into account on a schedule. The overall sentence imposed was ten years consisting of a minimum term of penal servitude of seven years and an additional term of three years. The sentence was described by Hunt CJ at CL (with whom Allen and Newman JJ agreed) as being "perhaps at or near the top of the range" but nonetheless within discretion."
It is inconceivable that such a sentence, for a multiplicity of serious offences against a series of victims, could be described as "perhaps at or near the top of the range" today. Indeed, I consider that such a sentence would run a serious risk of being characterised as manifestly inadequate.
Furthermore, it should be borne in mind that that was a decision of this Court nine years after the commission of the last offence of the applicant.
In PWB v R [2011] NSWCCA 84, RS Hulme J provided a summary in table form of sentences of this Court imposed between 1990 and 1999. The table relates to sentences for offences of indecent assault and indecent assault against a person under the age of 10 years, created by ss 61E and 61M(2) respectively. Again, I shall not reproduce that table in this judgment, as it is readily available.
I will not engage in a detailed analysis of its contents. It is true that it reveals that some substantial sentences were imposed during that time. Nevertheless, I consider that the general flavour of the contents of the table is of sentences that were less substantial than they would be if they were being considered or imposed by this Court in 2013. And it will be recalled that the table covers a period that begins 6 years after the last of the offences of the applicant.
In short, decisions of this Court support the proposition that sentences for offences against children have increased over the past decades.
Increase in sentences generally
The third factor is the increase in sentences generally for serious offences since the last of the offences of the applicant.
Over the past 25 years, there have been a number of developments within the criminal justice system of New South Wales that have led to a lengthening of sentences to be served, both with regard to sexual offences and offences generally. Without seeking to be exhaustive, they include: the creation of the statutory ratio between the non-parole period and the head sentence by way of the Probation and Parole (Serious Offences) Amendment Act 1987, and its expansion to all offences by way of the Sentencing Act 1989; the abolition by the same Act of remissions; the creation of "natural life" sentences; the steady increase in maximum penalties, including but not limited to sexual offences; the judgment of the High Court of Australia in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, which led to more focus upon accumulation and partial accumulation when sentencing for more than one offence; most of the guideline judgments of this Court, commencing with R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; the watershed decision of this Court in R v AEM [2002] NSWCCA 58, which had the effect that sentences for serious sexual offences were thereafter lengthier; and finally, the commencement of the regime of standard non-parole periods in 2003.
There have been few countervailing developments with regard to serious offences.
In short, there has been a steady increase in sentences for serious offences across the board, and sexual offences have not been excluded from that process.
Maximum penalties for these offences
The fourth factor is the increase in maximum penalties for the offences committed by the applicant between their commission in the latter part of the 1970s and the early part of the 1980s and today. I bear in mind the point made by Mason P in dissent in R v MJR that this is a slightly different question from that considered in that case and under discussion by me. Nevertheless, I consider that, in order to determine whether sentences may have increased for identical or similar criminal conduct over that period, it is a useful exercise to examine changes in maximum penalties.
There follows a table that compares the offences of which the applicant was convicted with their analogues if the offences were committed today. Two modern analogues have been provided for the offence of rape, in light of the fact that that offence had no aggravated version founded on the age of the victim, no doubt due to the maximum penalty for the offence.
OLD OFFENCE OFFENCE CREATING PROVISION / MAX PENALTY CURRENT ANALOGOUS OFFENCE CURRENT ANALOGOUS OFFENCE CREATING PROVISION /MAX PENALTY SNPP Indecent assault female under age of 16 years s 76 / 6yr Aggravated Indecent Assault s 61M(2) / 10yr 8yr Commit act of indecency towards female under age of 16 years s 76A / 2yr Commit act of indecency towards person under age of 16 years s 61N(1) / 2yr N/A Sexual intercourse without consent with person under 16 years s 61D(1) / 10yr Sexual intercourse w/o consent in circs of agg s 61J(2)(d) / 20yr 10yr Ravish and carnally know person w/o consent s 63 / life Sexual intercourse w/o consent? s 61I / 14yr 7yr Sexual intercourse w/o consent in circs of agg? s 61J(2)(d) / 20yr 10yr Indecent assault person under 16 years s 61E(1) / 6yr Aggravated Indecent Assault s 61M(2) / 10yr 8yr Incite person under 16 years to commit act of indecency s 61E(2) / 2yr Incite person under 16 to act of indecency s 61N(1) / 2yr N/A
It can be seen that the maximum penalty for inciting acts of indecency has remained constant.
The maximum penalties for indecent assaults have increased markedly. Such offences also now attract a substantial standard non-parole period.
The maximum penalty for sexual intercourse without consent with a person under the age of 16 years has also increased markedly. Indeed, it is noteworthy that the offence now attracts a standard non-parole period that is equal to the pre-existing maximum penalty. That of itself is instructive.
The maximum penalty for rape has decreased, although, if one considers the offence of sexual intercourse without consent with a person under the age of 16 years as the modern analogue on the facts of this appeal, it retains a substantial maximum penalty of imprisonment for 20 years. It also features a standard non-parole period that of course did not exist in the 1970s.
In short, with regard to most but not all of the offences for which the applicant stood for sentence, the maximum penalty has increased. That provides some support for the proposition that the pattern of sentencing has increased.
Judicial memory
The fifth factor is judicial memory. Bell JA referred to it in Featherstone v R, when her Honour said at [45]:
"[T]his review of a small sample of cases involving broadly similar sexual offences does support the applicant's submission that there has been a significant upward trend in the length of sentences for offences of this character in recent years. It is an impression that accords with my recollection of the pattern of sentencing for sexual offences before the introduction of the Sentencing Act."
RS Hulme J referred to it in PWB v R, when His Honour said at [68]:
"Although as I have said, the Applicant was entitled to be sentenced in accordance with the sentencing standards applicable at the time of his offending, in the case of the second offence, 1991, it is not easy to determine what those standards were. I have no difficulty in accepting that they were more lenient than at present. This has been recognised in Featherstone v R [2008] NSWCCA 71 at [45]; McGrath v R [2010] NSWCCA 48 at [62]; R v RWB [2010] NSWCCA 147 at [176] and accords with my own recollection of events. However, such recognition provides no indication of what the standards were."
My impression is identical to that of Bell JA and RS Hulme J: sentences have indeed increased for serious sexual offences over the past quarter century, in some cases markedly. The concession made in this Court by the Crown Prosecutor, who happens to be a most experienced practitioner in the area of criminal law, lends support to my recollection.
Conclusion regarding pattern of sentencing
In short, for five reasons, I consider that it has been established that a pattern of sentencing for sexual offences against children in the latter half of the 1970s and the first half of the 1980s has been established.
Although it cannot be discerned with exactitude, I am satisfied that such sentences were shorter at the time than they are now; both with regard to offences founded upon sexual intercourse, and also with regard to offences of indecent assault and the like.
I also think it likely that the overall range of non-parole periods for offences that were prosecuted as rape before 1981 has increased. However, I am not satisfied that sentences for rape committed against children before 1981 were shorter than sentences imposed nowadays for sexual intercourse without consent with children founded on penile vaginal intercourse, whether as to head sentence or non-parole period.
The sentences under appeal
The question therefore is whether the sentences imposed by her Honour fail to reflect sufficiently the sentencing practice for sexual offences committed against children between 1977 and 1984. In considering that question, I bear in mind the proposition that, even when giving effect to that principle, sentences imposed now must adequately reflect the criminality of any offender, whenever the offences were committed.
I consider that the question must be answered in the negative with regard to the offences against KB. It will be recalled that the offences spanned a period from 1977 until 1984. Of the 12 offences, six were indecent assaults that carried a maximum penalty of imprisonment for 6 years. Six were offences of sexual intercourse without consent with a person under 16 years, which carried a maximum penalty of imprisonment for 10 years. Of the latter group of offences, count 13 was founded upon penile vaginal intercourse.
The current total sentence for the offences against KB is a head sentence of imprisonment for 8 years with a non-parole period of imprisonment for 4 years. I am not satisfied that such a sentence is manifestly excessive, bearing in mind the sentencing patterns of the time.
The question must also be answered in the negative with regard to the sentences imposed for the offences against LM. Of the nine offences, five were indecent assaults that carried a maximum penalty of imprisonment for 6 years; two were offences of inciting an act of indecency, which carried a maximum penalty of imprisonment to 2 years; and two were offences of sexual intercourse without consent with a person under the age of 16 years, which carried a maximum penalty of imprisonment for 10 years. The latter two offences were constituted by fellatio and cunnilingus. The offending spanned the years 1980 to 1984.
The current total head sentence with regard to the offences committed against LM is imprisonment for 6 years with a total non-parole period of imprisonment for 3 years. I do not consider that such a sentence is manifestly excessive by the standards of the early 1980s.
As for the offences against JM, all of them were committed within 1977. The offender was convicted of two indecent assaults, each of which carried a maximum penalty of imprisonment to 6 years; an act of indecency, which carried a maximum penalty of imprisonment 2 years; and an offence of rape which, as I have said, carried a maximum penalty of imprisonment for life.
The total sentence pertaining to the offences committed against JM is a head sentence of imprisonment for 12 years with a non-parole period of 6 years.
In light of my failure to be satisfied that sentences for rape against children have increased, I am not satisfied that the current total sentence for the offences against JM is manifestly excessive.
However, that is not the end of the matter. It is also necessary to turn to the contention contained in ground one, and to do so in the context of considering the historical sentencing pattern.
Had her Honour been sentencing in 2011 for recent offences, it would have been open to her Honour to structure the sentences as her Honour did. Consideration of the sentencing structure shows that all of the offences with regard to each victim were concurrent with each other. That carried with it a degree of leniency. It is true that, as I have said, the non-parole periods imposed for the offences against JM are wholly cumulative upon the non-parole periods imposed for the offences against LM, which are in turn wholly cumulative upon the non-parole periods imposed for the offences against KB. But in light of the fact that there were three separate victims, against whom a number of discrete offences had been committed over an extended period of time, that approach to structuring the sentences would have been open to the discretion of her Honour if the offences were relatively recent ones.
However, the overarching structure resulting from the approach of her Honour to questions of totality, concurrence, and cumulation needs to be considered in light of the sentencing standards of the late 1970s to early 1980s. The fact is that the approach to questions of cumulation and concurrence was more lax before the handing down of the decision in Pearce v The Queen in 1998. Indeed, sentencing structures in those days often bore a similarity to those that result nowadays from the modern practice of aggregate sentencing, pursuant to s 53A of the Crimes (Sentencing Procedure) Act.
Considering the maximum penalties applicable at the time of the commission of all of the offences, taking into account all of the objective and subjective features, and bearing in mind the sentencing pattern that existed at the relevant time, I am affirmatively satisfied that the total head sentence of imprisonment for 19 years with a total non-parole period of imprisonment for 13 years is manifestly excessive. In particular, I am satisfied that such a total sentence does not adequately reflect the sentencing pattern in existence at the time of the offences.
Furthermore, I consider that, to reflect sentencing practice in the 1970s and early 1980s, the total non-parole period of the overarching sentence structure should be closer to 50 per cent of the total head sentence than it is currently. To permit the current structure to remain, which features individual non-parole periods that are 50 per cent of their individual head sentences, but (because of accumulation) features a total non-parole period that is 68 per cent of the total head sentence, would not properly reflect the sentencing pattern under discussion.
In short, I would uphold ground eleven, along with subsidiary grounds one and nine. Although the submissions regarding grounds six and seven have played a role in my upholding of grounds one and nine, I would not uphold grounds six and seven as separate grounds. For completeness, I indicate that the submissions in support of ground eight did not cause me to uphold ground eleven.
Re-sentence
Two errors in the sentencing process have been identified by me: an erroneous taking into account of aggravating features, along with a failure to reflect sentencing practices at the time of the commission of the offences that has led to the imposition of sentences that are manifestly excessive. I consider that the discrepancy between the sentence that would have been imposed in the late 1970s or early 1980s and the total sentence imposed in 2011 is a substantial one. Although intervention by this Court in appeals such as this one is not automatic, I consider that, in the circumstances of this case, there should be some reduction.
As against the possibility of re-sentence, counsel for the applicant read a short affidavit about the progress of the applicant since sentence. It shows that, since that time, the applicant has sought counselling and treatment, and has been applying himself to various courses conducive to his rehabilitation.
Structural aspects of re-sentence
In order to achieve what I regard as the correct outcome, no head sentence with regard to any offence will be reduced. That is appropriate, in light of my finding that no individual sentence is manifestly excessive.
However, the commencement dates of the sentences for the offences against LM will be adjusted, and made partly concurrent with the operative non-parole period relating to the offences committed against KB.
Similarly, the commencement date of the sentences relating to the offences against JM will be adjusted, with the result that they are concurrent to some degree with the operative non-parole period of the sentences for the offences against LM.
Finally, in order to achieve a reduction in the ratio between the total non-parole period and the total head sentence, the operative non-parole period with regard to the sentences for the offences committed against JM will be shortened, but only to a small degree. The result will be a total non-parole period that is 56 per cent of the total head sentence.
Conclusion
I have found that the learned sentencing Judge erred in taking into account certain features as matters of aggravation. I have also found that the sentences are manifestly excessive, in that they do not adequately reflect the sentencing practices of decades ago.
However, with regard to the latter ground, it remains the fact that the applicant must receive condign punishment, including a total sentence and a total non-parole period that reflect the gross criminality of his offences, along with the extensive damage that he has done to the lives of the three victims. If he had been sentenced in 1985, soon after the end of the offending, he would certainly not have received a short sentence. Even allowing for the historical aspects of the matter, it is incumbent upon this Court to impose sentences that reflect the objective gravity of what the applicant has done.
I have already recounted the factors that call for alteration of the statutory ratio and constitute special circumstances.
The orders that I propose will result in a total head sentence of imprisonment for 16 years with a total non-parole period of imprisonment for 9 years.
Finally, I reiterate that this outcome is founded upon the fact that the offences of the applicant were committed many years ago, when there was a different approach to sentencing for sexual crimes. Nothing can be deduced from this outcome as to sentencing standards in 2013.
Orders
I propose the following orders:
(1)Leave to appeal against sentence granted.
(2)Appeal against sentence allowed.
(3)Quash the commencement date of the nine sentences imposed for the offences committed against LM.
(4)In substitution all of the nine sentences imposed for the offences committed against LM are to commence on 26 February 2012.
(5)Quash the commencement date of the four sentences imposed for the offences committed against JM.
(6)In substitution all of the four sentences imposed for the offences committed against JM are to commence on 26 August 2013.
(7)Quash the non-parole period of 6 years of the sentence imposed for the offence of rape committed against JM and contained in count 3 of the indictment.
(8)In substitution impose a new non-parole period for the offence of rape committed against JM and contained in count 3 of the indictment of imprisonment for 5 years, to commence on 26 August 2013 and expire on 25 August 2018.
(9)The new date upon which the applicant is first eligible for release on parole is 25 August 2018.
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Amendments
07 Mar 2013 Decision - Order 8: "… new parole period …" amended to "… new non-parole period …" By consent and pursuant to r 50C of the Criminal Appeal Rules. Paragraphs: Coversheet 07 Mar 2013 "… head sentence of imprisonment for 9 years." amended to read "… non-parole period of imprisonment for 9 years." Paragraphs: 156 07 Mar 2013 Sub-paragraph 8: "… new parole period …" amended to "… new non-parole period …" By consent and pursuant to r 50C of the Criminal Appeal Rules. Paragraphs: 158
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