Maurice v The Queen
[2011] VSCA 197
•30 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0886
| STEPHEN MAURICE | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, BUCHANAN and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 January 2011 |
| DATE OF JUDGMENT | 30 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 197 |
| JUDGMENT APPEALED FROM | R v Maurice (Unreported, County Court of Victoria, Judge Lacava, 14 October 2008) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Entering bedroom of sleeping child with intention to commit indecent assault – Victim aged 10 – Sexual penetration of child under 16 – Total effective sentence 9 years, non-parole period 7 years – Whether manifestly excessive – Whether non-parole period too great a proportion of head sentence – Whether sufficient weight given to prospects of rehabilitation – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Glynn | Andrew George Solicitors |
| For the Crown | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
The appellant pleaded guilty to one count of aggravated burglary and one count of sexual penetration of a child under 16. He was sentenced as follows:
| Count | Offence | Maximum | Sentence | Cumulation | 6AAA Declaration | |
| Individual count | Cumulation | |||||
| 1 | Aggravated Burglary | 25y | 7y | Base | 9y | Base |
| 2 | Sexual penetration of a child under 16 years of age | 10y | 5y | 2y | 7y | 3y |
Total Effective Sentence (TES): | 9y | 12y | ||||
Non-parole period (NPP): | 7y | 10y | ||||
By leave, he now appeals against that sentence. For reasons which follow, I would dismiss the appeal.
The circumstances of the offending
The female victim (‘R’) had just turned 10. She resided with her parents, two older brothers and an older sister. The appellant, who was aged 31 at the time of the offending, lived only 50 metres from her house.
On the night in question, R was asleep in the front bedroom of the house, which she shared with her older sister. She was asleep on the top bunk, while her sister was asleep on the bottom bunk. At approximately 4:00 am, R awoke to find the appellant rubbing her stomach, legs and genital area. He had gained access to the bedroom by removing a flywire screen, placing it against the side of the house in the driveway and then climbing in the bedroom window.
The appellant placed his hand under the doona and commenced to rub R’s legs, stomach, bottom and genital area. She was wearing a nightie. The appellant continually rubbed her genital area and then placed his finger inside her vagina, forcing her legs further apart. At various points, the appellant climbed further up the bunk ladder to gain better access to R.
Having been awakened by the appellant’s actions, R lay in fear, pretending to be asleep. The appellant left via the bedroom window and fled the scene. R immediately woke her sister and asked to be taken into the parents’ room. The older sister said that R was screaming her name and telling her that someone had touched her. R was ‘really anxious, talking really quickly. She was panicked, frightened and scared.’
The two girls went to the parents’ bedroom. R was upset and crying and told her father someone had been in her room touching her. Her father took her back to her bedroom and, whilst the bedroom window was slightly open, he did not notice anything amiss. It was not until the next morning, when he was about to leave to go to work, that he noticed that the flywire screen had been removed from the girls’ bedroom window and was lying next to the wall against the house.
Victim impact
The sentencing judge received into evidence sworn victim impact statements from R, her parents and her siblings. Those statements were in part read out on the plea, while other parts were summarised by the prosecutor. The judge summarised their content in these terms:
The statements show very clearly that your offending has had a catastrophic effect upon [R] and her family. True it is that you did not inflict physical harm upon [R] or the family but by entering their home as you did and with the intention that you had, in such a way as to be able to get under the blankets of [R] while she lay in her bed, you in fact destroyed the very decent life that this family had loved. Every aspect of life of every member of the family has been affected by your crimes. The family could not cope living so close to where you lived, being constantly reminded that you had entered the home breaching the naïve security arrangements and sexually assaulting its youngest member in the middle of the night. In the consequence, the family was forced to sell up and move. The parents are wracked with blame, holding themselves responsible for not completely protecting their children. Completely outgoing decent people have reverted to insular souls who now trust no one. Having lived their lives as decent people they are now wondering why you picked on their house and ponder where they went wrong, what they did to deserve you suddenly invading their home in the dark and quiet of night at 4:00 am …[1]
[1]R v Maurice (Unreported, County Court of Victoria, Judge Lacava, 14 October 2008), [13]–[14] (‘Reasons’).
The effect on the victims of a crime such as this is recognised as a significant sentencing consideration.[2] The suffering which the appellant’s conduct has caused is no more than might have been expected in the circumstances.[3]
[2]DPP v Moses [2009] VSCA 274, [18], citing DPP v DJK [2003] VSCA 109, [17]–[18].
[3]Cf R v Economedes (1990) 58 A Crim R 466.
Appellant’s personal circumstances
The sentencing judge gave the following description of the appellant’s personal circumstances.
I turn to your personal circumstances. You are 32 years of age. You have no prior criminal history. I admitted into evidence … a report dated 24 September 2008 from Carla Lechner a clinical and forensic psychologist. … [C]ounsel who appeared on your behalf relied upon the matters of background set out in that report. In the report by way of introduction Ms Lechner says inter alia:
‘Mr Maurice presents with long standing symptoms of clinical depression. At the time of the offences he seems to have decompensated in the face of a relationship breakdown and loss of employment. He admits to using masturbation as a form of stress release using erotic photographs of adult images as a stimulus. Mr Maurice does not exhibit symptoms of paedophilia per se in that his focus for sexual gratification is not children. However, clearly, his sexual behaviour has become problematic as he engages in high risk activities that transgress appropriate boundaries. At some level, his offending behaviour can be seen as a desperate cry for help as Mr Maurice finds it increasingly difficult to find some meaning in his life.’
You are an only child. Your father died when you were two years of age. Your mother remarried but later separated. You have a younger half brother but your relationship is not close with either your mother or half brother. I note that notwithstanding that you are not close with your mother, she has attended court to support you in this matter which must have been difficult for her especially in the face of the media attention that your conduct has attracted.
Up until about two or three years ago you were in a de-facto relationship with [T]. You separated and have a five year old daughter, [P], from that relationship. Your step-father was in the navy. In consequence, the family regularly moved in the result that you attended up to seven primary schools and new friendships were soon lost. You also attended six to seven high schools and you describe yourself as an average student. Your mother separated from your step-father in the year you studied for your Higher School Certificate. You failed to pass that year.
You had a poor relationship with your step-father. Soon after you commenced to live alone in Sydney, you commenced using alcohol and drugs, abusing both. You felt lonely and depressed and soon afterwards returned to Melbourne to be with your family. You commenced courses of studies in film and cooking completing neither. You worked in retail in a camping store in Melbourne for eight to 12 months before starting up a health food store in Collingwood which you managed for five years. You lost this job about the time you separated from your partner which according to Ms Lechner’s report precipitated a period of depression and have not worked since.
After you separated from your partner you returned to live with your mother. Again quoting from the Lechner report at p.3:
‘Mr Maurice returned to live at home.’ ‘With no direction at all, felt I'd return to my boyhood and not capable of anything.’ ‘He had access with [P] every weekend. He became increasingly depressed but did not seek any professional assistance. It was in this context that the above offences occurred.’[4]
[4]Reasons, [15]–[19].
Appellant’s explanation of the conduct
The sentencing judge noted that the forensic psychologist had explored with the appellant why he had offended:
Whilst acknowledging responsibility for your actions or to minimise the seriousness of them you told [Ms Lechner]:
‘Mr Maurice stated that earlier in the evening on the night of the offences he dropped [P] off after an access visit and had an argument with [T]. He recalled returning home feeling “very angry.” He also recalled going for a walk and seeing a young women estimated to be 17 to 20 years in the victim’s house. Later that night, “[I] couldn’t sleep and was very agitated and formulated the idea to do what I did.” Mr Maurice stated that it was only when he rubbed the victims body below the stomach and found that there was no pubic hair that he realised that she was a child, hence he left. Mr Maurice denied being sexually aroused during this time stating “I was scared. The idea was thrilling but actually doing it didn’t match the thrill.”’
His Honour commented as follows:
As to this part of Ms Lechner’s report, senior counsel who appeared to prosecute said, in my view with some force, there are two aspects of your explanation which upon analysis do not stand up to scrutiny. First, [R] is only 10 years of age not 17 to 20. Her sister is older but also would not fit the description you gave. Secondly, and more importantly I think, if your explanation was intended to play down your offending by making out that you desisted with your indecent assault when you realised [R] was but a child, then it was also wrong because you did not desist, rather you proceed to penetrate [R]’s vagina with your finger.
What is particularly disturbing to me about your behaviour as a sentencing Judge is your statement to Ms Lechner:
‘The idea was thrilling but actually doing it didn’t match the thrill.’
That you could conceive in your mind of a thrill out of breaking into someone's home and indecently assaulting a women of any age is, I think, an important factor to be taken into consideration in arriving at an appropriate disposition of you.[5]
[5]Ibid [20]–[23].
These comments are the subject of a separate ground of appeal, which I deal with below.
Mitigating factors
In what the judge described as ‘a powerful plea’ on behalf of the appellant, defence counsel relied on a number of factors in mitigation. The first was that the appellant had pleaded guilty at the earliest possible opportunity. As to this, the judge said:
In sentencing you for these offences I have imposed a sentence less severe than I would have otherwise imposed had you pleaded not guilty and fell to be sentenced after conviction by a jury at trial for these offences. In your case, your pleas of guilty have saved [R] and her family from the indignity and embarrassment that would doubtless be afforded to each of them were they compelled to give evidence against you and be cross-examined by your counsel and thereby having to relive your sordid behaviour towards them.[6]
[6]Ibid [12].
His Honour then dealt with the other mitigating factors in these terms:
Secondly, you appear before me as a man aged 32 years without prior conviction. I have had regard to that fact.
Thirdly, whilst in custody on remand you have availed yourself of counselling with the prison chaplains. In consequence, it is said you have developed insight into your problems and empathy with the effects your offending has had upon your victims at an early stage. In this regard, I received into evidence a letter from Jenny Hayes … and from Mr Ross Forber-Minney [both Uniting Church Prison Chaplains]. The letters also reflect deep regret and remorse by you for your offending. I have had regard to these matters.
Fourthly, the fact that you have not made application for bail. [Counsel] argued that this reflected the fact that you are indeed remorseful and are prepared to take the consequences of your offending and have been so prepared from the time of your arrest. I have had regard to this factor.
Fifthly, [Counsel] argued that despite the seriousness of your offending there are sound prospects of rehabilitation. I agree that you have taken appropriate steps to turn things around but until such time as you receive proper counselling and treatment for your depression and drug use, I think that the best that can be said about your rehabilitation is that you have taken the right steps so far but as to whether you will be fully rehabilitated at this time cannot be properly stated with certainty.
The final paragraph of the Lechner report I think says as much where it provides:
‘Mr Maurice’s offending is most serious. Fortunately he has insight as to how serious and inappropriate his actions were. His reported history does not fulfil the criteria for paedophilia per se. He denies being sexually aroused by his actions, claiming that the reality did not match the fantasy. It is concerning however that his actions were linked with feelings of anger and a desire for control. Mr Maurice recognises that he needs help with his sexual behaviour and is willing to engage with the Sexual Offenders Course and clearly these issues need to be further explored with him. He has appropriate victim empathy and wants to be held accountable for his actions. His insight and desire for help are good prognostic indicators. Mr Maurice may benefit from a lengthy parole period that provides him with ongoing support upon his release into the community. He also needs ongoing medical and psychological assistance with his depressive illness.’
As to rehabilitation, I have taken Mr Gwynn’s argument into account. In doing so I have noted, a desire by you to undertake the sex offenders program whilst in prison.
Sixthly, [Counsel] asked me to take into account your family background and antecedents, et cetera, especially the fact that your natural father died when you were an infant and that your education was interrupted by constant movements consequent upon your step-father's employment in the navy. I have done so.
Seventhly, it was argued that your offending should be seen as having occurred in a background of depression, the treatment of which has now commenced in terms of seeing a psychiatrist and taking medication, and I should take this into account in terms of assessing the likelihood of your reoffending. There is also the fact that your background has had periods where you have struggled with drug and alcohol abuse. You told Ms Lechner that you had been abusing amphetamines a couple of weeks before the offending. This is a matter which you will also need treatment for. I have taken these matters into consideration in arriving at my sentence.
Eighthly, the fact that you have separated from your wife and the effect that this has had upon your depression and the fact that whilst in prison you have not and will not see your daughter.
Ninthly, [Counsel] asked me to keep in mind that you have been kept in protection whilst on remand and will require protection in any sentence served. I have given consideration to this aspect also.[7]
[7]Ibid [26]–[34].
As to the ‘background of depression’, it was argued in the appeal submission that the appellant’s depression ‘appeared to be causally linked to the offending’. No such submission was advanced on the plea, when only passing reference was made to this Court’s decision in R v Verdins.[8] This is not surprising, as there was no evidence of a causal link between the depression and this offending.[9]
[8](2007) 16 VR 269.
[9]See Carroll v The Queen [2011] VSCA 150, [20].
The grounds of appeal
Of the five grounds of appeal, four were directed at establishing that the various components of the sentence, and the total effective sentence, are manifestly excessive. Only one ground alleged specific error. I deal with that first.
Under ground 3, it was contended that the judge had erred
in his findings as to the significance of the applicant’s statement to a forensic psychologist that ‘the idea was thrilling but actually doing it did not match the thrill’.
The submission for the appellant was that the judge had overstated the importance of this statement, which appeared
to have been treated as being an aggravating factor of the offence, as well as being of great relevance to the assessment of the applicant’s prospects of rehabilitation and the need for specific deterrence.
Far from counting against the appellant, it was said, this statement should be seen as showing him in a positive light. According to the written submission:
His Honour has failed to appreciate that almost anyone who carries out an offence such as the present one would have expected to receive some pleasure or gratification – or thrill – from it. If an offender did not expect it to be ‘thrilling’ he would not do it. That being the case, what really sets the applicant apart is his honesty and self awareness. Rather than being seen as aggravating, the statement should have been seen as evidence that the applicant had devoted some time to self analysis, and was prepared to be honest about his motivations. This should operate to enhance his prospects of rehabilitation. That is particularly so given that the applicant reported that despite his expectation he did not in fact find the offence thrilling at all.
In my opinion, there is nothing in this ground. The sentencing judge was entitled to treat the appellant’s motivation – to obtain a sexual ‘thrill’ – as highly relevant to sentencing. The pursuit of sexual gratification by such means would always be viewed very seriously, and it was clearly relevant to an assessment of the nature and gravity of the offending and of the need for specific deterrence and protection of the community.
That other offenders, committing similar offences, might be similarly motivated does not make the appellant’s admission of his sexual motivation any the less disturbing, or any the less important in the sentencing judge’s assessment of the appropriate disposition. As appears from what the appellant told Ms Lechner, he had planned to do what he did; he ‘felt in control’ when he was doing it; and he acknowledged a connection between this offending and an ‘exciting fantasy’ which he associated with an earlier sexual encounter.
Insufficient weight given to rehabilitation
The judge made the following findings about the appellant’s prospects of rehabilitation:
You are now 32 years old. Your potential for lasting rehabilitation is I think uncertain at this time. You have barely commenced down the right path and to your credit you have expressed remorse for your conduct. You have not sought to evade responsibility for [your] actions and you have expressed empathy with the feelings of your victims. They are all good aspects of your makeup which point perhaps to eventual rehabilitation. Time will tell.[10]
[10]Reasons, [44].
Ground 2 contended that the judge had erred ‘in giving insufficient weight to rehabilitation in the sentencing process’. The submission for the appellant was that
the sentence gave very little importance to the applicant’s rehabilitation. This was partly as a result of [the judge’s] gloomy assessment of those prospects, but may also have been a result of the judge saying that rehabilitation was outweighed by the needs of general deterrence and community protection. The judge has allowed the important sentencing purpose of rehabilitation to be swamped by other considerations. In doing so, he has overlooked the fact that community protection is best promoted by an offender’s reformation.
As this Court has previously stated, a complaint about the weight given to a particular sentencing factor can only be considered by reference to the sentence actually imposed. In Director of Public Prosecutions v Terrick,[11] the Court said:
The proposition that too much – or too little – weight was given to a particular sentencing factor is almost always untestable. This is so because quantitative significance is not to be assigned to individual considerations. The question to be addressed when the ground of manifest inadequacy – or, in a prisoner’s appeal, manifest excess – is advanced is whether the sentence arrived at was within the range reasonably open to the sentencing judge in the circumstances, taking proper account of all relevant sentencing considerations (whether aggravating, or mitigating, or both). If the conclusion is that the sentence was outside the available range, then it may be inferred that too much or too little weight was given to one or other consideration. But rarely, if ever, will it be possible – or necessary – for the appeal court to reach a conclusion on that question.
[11](2009) 24 VR 457, [5].
The conclusions arrived at by the judge as to the appellant’s prospects of rehabilitation were findings of fact. It was not suggested for the appellant that these findings were not reasonably open. That being so, the contention that insufficient weight was given to rehabilitation can only be approached as a particular of the manifest excess ground, to which I now turn.
Manifest excess
Ground 1 contended that the individual sentences, the total effective term and the minimum term were all manifestly excessive. Ground 4 contended that the minimum term was too great a proportion of the head sentence, while ground 5 contended that there was an excessive degree of cumulation between the sentences.
The appellant submitted, and the respondent conceded, that the individual sentences were among the highest ever imposed for these offences. Although the maximum penalty for aggravated burglary is 25 years’ imprisonment (increased from 15 years in 1997, as the sentencing judge noted), the Sentencing Snapshot published by the Sentencing Advisory Council for this offence shows that for the period 2004-5 to 2008-9 a sentence of imprisonment was imposed in 309 cases but only three of those resulted in a sentence of 7 years or more.
Counsel for the appellant drew attention to two decisions of this Court which, he submitted, demonstrated that this sentence was outside the range. The first was Director of Public Prosecutions v Youlton.[12] In that case the offender had been sentenced on multiple counts of rape, indecent assault and aggravated burglary. Of the five counts of aggravated burglary, two resulted in sentences of 7 years’ imprisonment. In each instance, the aggravated burglary count was one of a number of counts relating to the same incident. In each case, the victim was an elderly woman whose premises the offender had entered with the intention of committing sexual assault. On both occasions, he was armed with a knife.
[12][2009] VSCA 62 (‘Youlton’).
The offending on the first occasion involved two counts of rape, for which the offender received 7 years and 8 years’ imprisonment respectively. The second occasion involved a single count of rape, for which he received 7 years’ imprisonment. In addition, on both occasions, there were multiple counts of indecent assault. The appeal by the Director challenged as inadequate the sentences on the rape counts. In dismissing the appeal, the Court inferred from the judge’s sentencing remarks that there had been ‘some moderation of the individual sentences and the orders for cumulation made in order to effect what her Honour perceived as an adequate synthesis’.[13]
[13]Ibid [15].
This statement confirms what I would otherwise have assumed, namely that, because there were multiple counts arising from the same episode, there had been some moderation of the sentences on the individual counts, in order to ensure that the sentence imposed was proportionate to the total criminality involved in the particular episode. It follows that, if there had not been other, equally serious, offences committed on the same occasion, the sentence imposed on the aggravated burglary count might well have been higher than 7 years.
Counsel for the appellant submitted that the present case would be ‘close to the worst case’ of aggravated burglary but for the fact that the offender was not armed. The use of a knife made Youlton much worse than the present case, he submitted. I do not agree. In my opinion, the fact that the present appellant did not use a knife (or other weapon) does little to alter the gravity of the offending. As Weinberg JA pointed out in the course of argument, to break into a bedroom where children are sleeping, with the intention of indecently assaulting one of them, is very grave indeed. The fact that the victim would be asleep meant, of course, that no weapon was necessary. The victim was in no position to object or resist. In the circumstances, I would regard the sentences imposed in Youlton as tending to confirm, rather than negate, the appropriateness of the sentences imposed in this case.[14]
[14]See also R v Tarr [1999] VSCA 61, where this Court upheld a sentence of 10 years for aggravated burglary.
The other decision referred to was that of Tiburcy v The Queen.[15] There, the offender had entered his ex-partner’s home after she had left for work, with intent to assault her 16-year-old daughter indecently. He pleaded guilty to one count of aggravated burglary and two counts of rape. He was sentenced to 3 years’ imprisonment on the aggravated burglary count, and 4 years’ imprisonment on each of the rape counts. The total effective sentence was 7 and a half years, with a non-parole period of 6 years.
[15][2010] VSCA 307.
On appeal by the offender, the Crown conceded that the non-parole period was manifestly excessive. As the Court’s reasons record, however, this was an exceptional case. The Crown accepted that there was ‘a constellation of powerful features’[16] which had called for a lower non-parole period, the most significant being the efforts which the offender had made towards his own rehabilitation. Moreover, the prosecutor submitted on the appeal that the offender had ‘done all that he can do to right the wrong’.[17] It was doubtless these features which had prompted the sentencing judge to impose what was, on any view, a very lenient sentence for the aggravated burglary. There is nothing in that decision which would suggest that the sentence presently under consideration was outside the range.
[16]Ibid [7].
[17]Ibid [8].
It was further submitted for the appellant that the sentence of 5 years’ imprisonment for sexual penetration, being 50 per cent of the maximum penalty, suggested that the appellant might have been doubly punished. Counsel accepted that the offence of sexual penetration was made much the worse by reason of its having been committed at night, by an intruder. The risk, however, was that aspects of the criminality properly associated with the aggravated burglary – that is, the entry with intent to commit the sexual assault – had led, impermissibly, to a higher sentence for the sexual offence itself.
I am not persuaded by this submission. There is, of course, a factual connection between the entry with intent to commit sexual assault, and the act of sexual penetration which effectuated that intention. But, as the judge pointed out during argument on the plea, they were properly viewed as separate criminal acts, each of a high degree of seriousness. To say that both the aggravated burglary and the sexual penetration are the more serious because they occurred in the dead of night is, in no sense, to create a risk of double punishment. This was a very serious instance of sexual penetration of a child who had barely turned 10. The sentence of 5 years was within range, in my view.
General deterrence was appropriately treated as a matter of particular importance. The sentencing judge described the offending as ‘offensive, repugnant and intolerable’ and he referred to the ‘profound and lasting’ effects on the victim and on her family as a whole. His Honour noted the repeated statements of appellate courts in all jurisdictions that
crimes against children are to be regarded as abhorrent and that the courts have a duty to the children themselves and to the community generally to protect children from people such as yourself who might be minded to take advantage of them for personal sexual gratification.[18]
[18]Reasons, [39].
Aggravated burglary is likewise viewed as an extremely serious offence, and the community expects the courts to impose sentences accordingly. It is a crime which undermines the sense of security that people – and children in particular – are entitled to feel in their homes.[19]
[19]DPP v El Hajje [2009] VSCA 160, [34]–[35].
Nor, in my view, can there be any complaint about the direction for cumulation. As counsel for the respondent submitted, this
was not a fleeting sexual assault on a young child, but rather a determined attack which culminated in digital penetration … At the time of the attack the victim had awoken – she must have been truly terrified by the appellant’s presence and his conduct in the bedroom. The conduct in question added significantly to the criminality involved in the actual home invasion.
Finally, there is the question of the non-parole period. Ground 3 contended that, at 78 per cent of the head sentence, the minimum term was manifestly excessive. According to the written submission:
As a contrite and insightful first offender with good prospects of rehabilitation, the applicant should have received a non-parole period towards the lower end of the normal range: around two thirds of the head sentence. Even if his prospects of rehabilitation were not judged to be good, they were not such as to require a relatively high minimum term.
There is no ‘usual’ non-parole period. Nor is the question whether a non-parole period of 7 years was ‘required’. Rather, as the Court pointed out in R v Merritt:[20]
The issue to be considered is whether in all the circumstances of the case, and of the offender, the non-parole period is capable of reasonable explanation or not. Obviously in circumstances where a sentencing judge has fixed a very long period between the non-parole period and the head sentence, or had fixed a very short non-parole period an appeal court will be much assisted for reasons given by the sentencing judge for fixing the non-parole period in question. However as is clear from the authorities, the failure to give such reasons does not speak of error. The question to be determined is whether in all of the circumstances it was reasonably open to the sentencing judge to fix such a non-parole period.
[20](2008) 191 A Crim R 272, 277–8 [24].
In my opinion, it was reasonably open to the sentencing judge to conclude that a non-parole period of 7 years was the minimum which justice required to be served, having regard to the seriousness of the offending, the age of the victim, the profound long-term impact on her and her family, and the importance of general deterrence. The sentencing reasons contain a very full account of why those were such significant sentencing considerations. Another sentencing judge may have fixed a shorter non-parole period, but the manifest excess ground could only have succeeded if the appellant had established that the present judge was bound to do so. For the reasons I have given, that has not been established.
BUCHANAN JA:
I agree with the President.
WEINBERG JA:
I have had the benefit of reading in draft the judgment of Maxwell P. I agree with his Honour’s conclusion and his reasons for it.
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