R v F, AB

[2011] SASCFC 73

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v F, AB

[2011] SASCFC 73

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Kourakis)

29 July 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Prosecution application for permission to appeal against sentence - respondent pleaded guilty to two counts of unlawful sexual intercourse with a person under the age of 14 years - sentenced to 10 years imprisonment, with a non-parole period of four years - where circumstances of offending serious - where protection and deterrence are of primary importance in sentencing - whether judge erred in applying sentencing principles - whether non-parole period of four years was manifestly inadequate - discussion of prosecution appeals against sentence.

Held:  permission to appeal granted - appeal allowed - non-parole period was manifestly inadequate - the Judge erred in applying sentencing principles - the Court imposes a term of imprisonment of 10 years, with a non-parole period of six years.

Criminal Law (Sentencing) Act 1988 (SA) s 10(4), s 29D, s 32; Correctional Services Act 1982 (SA) s 66(1), s 67, s 68, s 69, s 74, s 74AA, s 76, s 77, referred to.
R v Major (1998) 70 SASR 488; R v Power [2003] SASC 288, discussed.
Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v Siozios (2004) 236 LSJS 88; The Queen v Shrestha (1991) 173 CLR 48, considered.

R v F, AB
[2011] SASCFC 73

Court of Criminal Appeal:  Sulan, Vanstone and Kourakis JJ

1. SULAN J: I would grant permission to appeal and allow the appeal.  I agree with the reasons of Kourakis J and the orders he proposes.

2. VANSTONE J:     I agree with the orders proposed by Kourakis J and with his reasons.

3. KOURAKIS J:  This is an application by the Director of Public Prosecutions (the Director) for permission to appeal against sentence.  The respondent was charged on information in the District Court with one count of persistent sexual exploitation of a child, an alternative count of unlawful sexual intercourse with a person under the age of 14 years, and a further count of unlawful sexual intercourse against the same child.  The hearing of the information was listed for trial on 15 November 2010.  On 4 November 2010, a nolle prosequi was entered on the first count and the respondent pleaded guilty to the two remaining counts of unlawful sexual intercourse with a person under the age of 14 years.  Both counts comprised an act of fellatio which, on the second occasion, ended with ejaculation into the child’s mouth.  The offences occurred between 18 August 2007 and 1 January 2010.  The sentencing Judge proceeded on the basis that the incidents were not isolated but “occurred against a lengthy background of similar offending”.  The respondent was sentenced to 10 years imprisonment with a non-parole period of four years.  The only ground on which the Director seeks permission to appeal is the manifest inadequacy of the non-parole period.

4. I would grant permission to appeal, allow the appeal and increase the non-parole period to six years. I would do so on two grounds. First, the non-parole period is so manifestly inadequate that it is necessary for this Court to intervene to maintain proper sentencing standards for offences of this type. Second, the reasons disclose a failure to apply s 10(4) and s 29D of the Criminal Law (Sentencing) Act 1988 (CLSA) in fixing the non-parole period.  These provisions contain the Parliament’s, and hence the community’s, instruction to sentencing courts to give primacy to child protection and deterrence in the exercise of the sentencing discretion with which they continue to be entrusted.  It is the responsibility of this Court to ensure that those provisions are applied.

5. The elaboration of my reasons follows.

   Protection of Children Paramount

6. Section 10(4) of the CLSA provides:

   10—Matters to be considered by sentencing court

   (4) A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.

7. Section 10(4) of the CLSA must be applied in fixing the length of both the head sentence and the non-parole period. In cases to which s 10(4)of the CLSA does not apply, the relative importance of protection and deterrence in comparison to other sentencing considerations will vary between offences, and from case to case, depending on such questions as the nature of the offence, prevalence, community harm and concern and the likelihood of recidivism or rehabilitation.  However, in the case of offences involving the sexual exploitation of children, the balance has been weighted towards protection and deterrence. 

8. Section 10(4) of the CLSA does not preclude a court from fixing a sentence which also promotes the rehabilitation of an offender. However, the primacy and paramountcy of protection and deterrence mandated by s 10(4) means that, in sentencing for such offences, the factual circumstances supporting a rehabilitation option will need to be relatively stronger than in other cases.

9. Section 29D of the CLSA provides:

   29D—Sentencing standards for offences involving paedophilia

   (1)     The Parliament declares that—

   (a)     the 1997 amendment of sentencing standards reflected an emerging recognition by the judiciary and the community generally of the inherent seriousness of offences involving paedophilia; and

   (b)     the reformed standards should be applied to offences involving paedophilia committed before or after the enunciation of the 1997 amendment of sentencing standards (or committed in part before, and in part after, the enunciation of the 1997 amendment of sentencing standards).

   (2)     In this section—

   1997 amendment of sentencing standards means the change to sentencing standards enunciated in R v D (1997) 69 SASR 413;

   offences involving paedophilia means all offences to which the 1997 amendment of sentencing standards is applicable (whether individual sentences for the offences have been, or are to be, imposed or a global sentence covering a series of offences or a course of conduct involving a number of criminal incidents).

   reformed standards means sentencing standards as changed by the 1997 amendment of sentencing standards.

10. The main purpose of s 29D is to apply the standards enunciated in R v D[1] retrospectively, but it also reinforces the relative importance of protection and deterrence in sentencing for all offences of paedophilia.

    [1]    R v D (1997) 69 SASR 413.

    The Offending

11. The victim of the offences, to whom I will refer as V, was aged between 10 and 13 years during the course of the offending.  The respondent was in a de facto relationship with V’s mother.  They lived in the same home for 9 years from when V was four years of age.  V referred to the respondent as “Dad”.  V’s mother gave birth to three other children, fathered by the respondent, in that period of time.  The respondent was, therefore, both in a position of trust and in a position to exercise considerable power over V.  Indeed, he threatened to withdraw privileges from V if she did not perform fellatio as and when directed by him.  The respondent’s humiliation of V extended beyond the sexual assaults themselves.  He exposed her to pornographic magazines during the offending and on occasion directed her to remove her clothes.

    The Respondent’s Antecedents

12. The respondent was 29 years of age when he was sentenced on 22 March 2011; the offending commenced when he was 25 years of age. 

13. The respondent left school at age 17.  His employment was limited and interrupted.  He started drinking alcohol at age 14 and has indulged in weekly binge-drinking since then.  He started to use cannabis at about age 15 and amphetamine, intravenously, at age 20.  However, he managed to extricate himself from the latter addiction in 2008.  The respondent has many prior convictions.  He has served substantial periods of imprisonment for robbery offences.  In April 2008 he was placed on a supervised bond upon a conviction for ill-treating an animal.  He has convictions for driving in contravention of orders of disqualification.

14. A forensic psychologist assessed the respondent in the course of a two-hour clinical interview shortly before the sentencing hearing.  His report was received without objection, or comment, from the counsel for the Director.  The psychologist identified in the respondent certain criminogenic risk factors: conduct disorder as an adolescent, difficulties relating to authority figures, a history of juvenile and adult offending and drug use.  The psychologist also diagnosed a pervasive anger management disorder and a generalised impairment of impulse control.  The respondent’s criminogenic profile was rated as moderate.  Nonetheless, the psychologist prognosticated that there were fair prospects that the respondent would not reoffend, and that he would respond to a community rehabilitation programme, because:

    ·his paedophilia was not entrenched and was secondary to his sexual preference for adult women and he was therefore amenable to therapy;

    ·he had acknowledged that his actions were wrong and had showed some victim empathy;

    ·his antisocial personality disorder was only moderate;

    ·he had moderated his drug abuse and had, by showing an interest in becoming a stonemason, improved his work ethic.

15. The psychologist expressed the view that a “totally crushing prison sentence” might cause the respondent to fall back into an antisocial lifestyle.  The psychologist, in reaching his prognosis, also relied on the respondent’s claim that in recent years he had made significant progress in overcoming his core criminogenic risk factors and that “with the exception of this current behaviour he has been largely offence free since 2008.”  It is difficult to see how much weight could be given to his asserted progress in overcoming his drug dependence or, at least, to the significance of that achievement, given his extremely serious offending against V in that same period of time.  Furthermore, it seems to me to be particularly meaningless to rely on the circumstance that he has not committed an offence, other than the offences against V, as a reason for expressing any confidence about his prognosis.  It will often be the case that the only known offending will be the offending for which the convicted person must be sentenced.

16. I make it clear that I do not in any way rely on the criticisms I have just expressed in reaching my conclusion that permission to appeal should be given.  However, on this appeal, the Court must make its own assessment of whether the non-parole period is manifestly inadequate and it is not bound by the weight that the sentencing Judge chose to give that report.  The sentencing Judge enjoyed no special advantage over this Court in the assessment of that report.

17. Reports of psychologists and psychiatrists can substantially assist sentencing judges.  The identification of psychiatric illnesses and psychological disorders and conditions will obviously bear on the subjective culpability of the offender and on the prospects for rehabilitation.  Assessments of the level of intellectual and social functioning of an accused are also important in fashioning an appropriate sentence.  However, as trite as it is, it is worth repeating that sentencing judges are not bound to accept opinions expressed in expert reports about the motivation for the offending or the offender’s prognosis.  Assessing an offender’s prognosis is necessarily speculative, but no expert is in a better position than the sentencing Judge to assess criminal behaviour and an offender’s likely response to a sentence.  In any event, considerations personal to the offender are only some of the many considerations which determine the ultimate sentence.

18. In my view, the report of the psychologist in this case does not reveal any condition or antecedents which engender any special confidence in the respondent’s prospects of rehabilitation over other offenders.  Indeed, the psychologist’s own assessment, “fair prospects”, is appropriately guarded.

19. The term “crushing sentence” has a different meaning in psychological discourse to the one it has in sentencing principle.  A crushing sentence for the purpose of the law is one which leaves no practical opportunity for rehabilitation when an alternative sentencing order could facilitate rehabilitation consistently with the need to protect the community.  Alternatively, a crushing sentence is one which, in effect, destroys any rehabilitative desire that the offender may have had when a lesser sentence, again consistently with the need to protect the community, might properly have been imposed.  It is, in effect, one of the considerations which might show that a sentence is manifestly excessive.

20. The respondent was 29 years of age at the time of sentencing.  It is difficult to see how any non-parole period fixed for a head sentence of 10 years could be described as crushing in the legal sense.  Even a non-parole period which is a relatively high proportion of the head sentence of 10 years would have the respondent out of prison and in the community when he is about 35 years of age.  A non-parole period of around six or seven years imprisonment, which would allow a period of three or four years for rehabilitation in the community on parole, could not be described as crushing in the legal sense.

21. I acknowledge that the psychologist’s reference to a crushing sentence reflects his professional judgment on the subjective effect of a substantial term of imprisonment on the respondent.  There is some force in that view.  However, I suspect that the personal deterrent effect of a non-parole period of the order to which I have just referred might still be effective in the respondent’s case.  Be that as it may, that is but one of many considerations which must determine the sentence.

    Prosecution Appeals

22. Permission to appeal against the inadequacy of a sentence will only be granted in rare and exceptional circumstances.[2] 

    [2]    Everett v The Queen (1994) 181 CLR 295.

23. In R v Osenkowski King CJ explained the function of this Court on a prosecution appeal in these terms:

    The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[3]

    [3]    R v Osenkowski (1982) 30 SASR 212 at 213.

24. It has also been said that this Court will correct a sentence which “would shake the public confidence in the administration of justice”.[4]  I do not understand the conjuration of the public conscience in those statements to be meant literally.  This Court is not in a position to know the public’s reaction to a particular sentence.  In my view, those expressions refer to the apprehended result if this Court were to fail to intervene to correct a disproportionate sentence where it is necessary to do so to maintain proper sentencing standards generally.  Mere error or inadequacy does not require correction to discharge the supervisory responsibility of this Court.  Egregious errors, which one hopes will be rare and exceptional if proper attention has been paid to the factual and legal context against which the sentence must be fixed, may demand correction.  Reasons for penalty which disclose an error of sentencing principle resulting in a manifestly inadequate sentence may also attract a grant of leave.  Critically, permission will be granted where the appellate court perceives that correction of an error or errors of the kind I have mentioned is necessary to properly supervise and guide sentencing courts.[5]

    [4]    R v Nemer (2003) 87 SASR 168 at [24]; R v Siozios (2004) 236 LSJS 88 at 89.

    [5]    Everett v The Queen (1994) 181 CLR 295 at 300.

    Non-Parole Periods

25. In considering the adequacy of the non-parole period, I am prepared to proceed on the basis that the head sentence of 10 years is appropriate.  The Director did not submit otherwise.  However, it should not be thought that the manifest inadequacy of a non-parole period can only be demonstrated by reference to the head sentence for which it has been fixed.  In a proper case, the inadequacy may be demonstrated both by the relatively low proportion the non-parole period bears to the head sentence and by the relative leniency of the head sentence itself.  It would be proper to have regard to the leniency of the head sentence to demonstrate egregious error in fixing the non-parole period, even though the head sentence itself is not so low as to warrant a grant of leave to appeal.  Where a non-parole period is grossly inadequate, because errors in setting the head sentence have compounded errors in fixing the non-parole period, it would be paradoxical to immunise the non-parole period from challenge because it does not appear as inadequate relative to an erroneously low head sentence.

26. The purpose of fixing a non-parole period pursuant to s 32 of the CLSA is to allow for the release of a prisoner on parole pursuant to the Correctional Services Act 1982.  A prisoner who is liable to serve a period of imprisonment of less than five years must be released no later than 30 days after the day on which the non-parole period expires.[6]  Prisoners serving longer periods of imprisonment (other than a sentence of life imprisonment) must be released from prison on parole on a day specified by order of the Parole Board if the Parole Board, in its discretion, orders release on parole.[7]  Parolees must comply with extensive and intrusive conditions[8] which are enforced by the Parole Board.[9]  A parolee remains on parole until the expiry of the term unless the release is cancelled or suspended before the expiry of the term.[10]

    [6]    Correctional Services Act 1982 s 66(1).

    [7]    Correctional Services Act 1982 s 67.

    [8]    Correctional Services Act 1982 s 68.

    [9]    Correctional Services Act 1982 s 74, s 74AA, s 76 and s 77.

    [10]   Correctional Services Act 1982 s 69.

27. The manifest purpose of parole is to promote the rehabilitation of an offender by allowing him or her to serve a part of his or her head sentence on parole in the community.  Courts are given a discretion to fix that non-parole period because it is recognised that “considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody”.[11]

    [11]   The Queen v Shrestha (1991) 173 CLR 48 at 67 per Deane, Dawson and Toohey JJ.

28. In R v Abdulla,[12] Vanstone J summarised the principles and authorities governing the fixing of a non-parole period in these terms:

    [12]   R v Abdulla (2011) 109 SASR 258 at [52].

    It is without controversy that all factors bearing on the sentencing process are relevant at each stage of that process.  In R v Shrestha (1991) 173 CLR 48, Deane, Dawson and Toohey JJ made this point (at 68-69):

    All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time.

    In their separate, dissenting, judgment, Brennan and McHugh JJ (at 60), made a similar observation.  In R v Stewart (1984) 35 SASR 477, King CJ, in fixing a non-parole period in relation to a person who had pleaded guilty to murder, approached the task on the basis that the relevant question was as follows. What is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventive purposes of punishment? Of course there is more scope, in setting a non-parole period, to emphasise matters related to the prospects of rehabilitation of the offender. But the processes of setting a head sentence and setting a non-parole period are integrally linked. The non-parole period is fixed in relation to the head sentence and it must reflect the punitive, preventive and deterrent purposes of punishment, just as does the head sentence. As King CJ (with whom Cox and Olsson JJ agreed) said in R v Creed (1985) 37 SASR 566:

    The non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard both to the offence and the offender, and it must reflect the community’s sense of justice, what in some of the cases is called “the moral sense of the community”.  For that reason alone the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.

    These observations remain particularly apposite in cases where the court retains an unencumbered discretion in respect of setting the non-parole period.  Where the mandatory minimum non-parole period is provided by statute, proportionality is achieved by application of the legislation.  It is for these reasons that a non-parole period set within the proper parameters should always demonstrate an appropriate relationship to the head sentence.

1. In R v Creed,[13] King CJ warned against the unthinking application of a “norm” or standard proportion of the head sentence in these terms:

   Counsel for the respondent mentioned, in the course of his submissions, what I gathered from him was regarded as something of a norm, namely that the non-parole period should represent two-thirds, in an ordinary case, of the head sentence.  The members of this bench know of no such practice and speaking for myself, and I think the other two members of this Court, I would wish to say that the Court does not regard a non-parole period of two-thirds, nor indeed any other proportion, of the head sentence as being the norm.  Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case.  In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part.  Nothing in the nature of a norm can be acceptable.[14]

   [13]   R v Creed (1985) 37 SASR 566.

   [14]   R v Creed (1985) 37 SASR 566 at 569.

2. In my respectful opinion, that passage does not mean that many or even most non-parole periods will not fall within a limited range.  The very factors referred to by King CJ in the passage from Creed cited by Vanstone J in Abdulla, will have the result that non-parole periods will often fall within a limited range.  Indeed in R v Major,[15] Doyle CJ said:

   In the present case, it is appropriate to fix a lower than usual proportion of the head sentence as the non-parole period. But the period fixed must still reflect the gravity of the crime.

   I am prepared to agree to a non-parole period of 10 years, as proposed by Olsson J.  Nevertheless, I regard that as being at the lower end of the range that is required to reflect the gravity of the crimes in the present case.  Such a low non-parole period for such serious offending is appropriate only because of the unusually powerful mitigating circumstances of this case.[16] (Emphasis added)

   [15]   R v Major (1998) 70 SASR 488.

   [16]   R v Major (1998) 70 SASR 488 at 492. In R v Power [2003] SASC 288 at [29], Sulan J explained the factors which may vary a non-parole period relative to others in this way: There are circumstances where a court may see little prospect that a person will respond to parole in a positive and useful way. In those circumstances, the court may well set a non-parole period which is a high percentage of the head sentence. On the other hand, there are circumstances in which the court may set a lesser non-parole period, particularly in the case of a lengthy sentence, so that an assessment can be made by the Parole Board after a reasonable period to determine whether the prisoner has progressed sufficiently on the path to rehabilitation to be entitled to be released. Nevertheless, the non-parole period must also reflect the requirement of punishment and general and personal deterrence.

3. The very proposition that the non-parole period must, “no less than the head sentence”,[17] reflect the need for punishment, deterrence and prevention necessarily entails a proportionate relationship between the non-parole period and the head sentence.  Considerations of deterrence, prevention and punishment will militate towards a relatively higher non-parole period.  The legislative policy of promoting rehabilitation through a supervised release into the community will work to lower the non-parole period.  It is not surprising then that sentencing judges and appeal courts often consider the proper proportion the non-parole period should bear to the head sentence by reference to the nature of the particular offence and in terms of whether the offender’s prospects of rehabilitation are significantly better or worse than the generality of offending of that type.  It is the balancing of these factors which will determine the “appropriate relationship to the head sentence” referred to by Vanstone J in Abdulla.

   [17]   Rv Creed (1985) 37 SASR 566 at 568 per King CJ.

4. In the case of sexual offences against children, the statutory commands in s 10(4) and s 29D of the CLSA must also significantly affect the proportion which a non-parole period bears to the head sentence.  Because those provisions apply only to sexual offences against children it would be wrong to balance the competing considerations to which I have referred in the preceding paragraph in the same way as they are when sentencing for other offences.  In the case of sexual offences against children the balance is weighted towards deterrence.  Those sections do not, of course, require the prospects for rehabilitation to be ignored, nor do they preclude the imposition of largely rehabilitative sentences in those cases where the material before the court sufficiently supports that option.

   Intervention is Necessary

5. In my view, the non-parole period of four years is not at all commensurate with the requirements of punishment and deterrence for these offences. The relatively low proportion it bears to the head sentence, even if I were to ignore for the moment s 10(4) and s 29D of the CLSA, could only be justified if the respondent’s antecedents demanded substantial credit for past good character and if the prognosis for rehabilitation was good.  In fact, the respondent’s circumstances are the converse of that paradigm.

6. Turning now to s 10(4) and s 29D of the CLSA, I cannot identify anything in the respondent’s circumstances which is capable of so outweighing the primary importance which protection and deterrence must have in offences of this type as to result in a non-parole period of just two-fifths of the head sentence.  The non-parole period is manifestly inadequate.  A period of no less than six years was necessary to reflect those considerations. 

7. The essential reasons of the sentencing Judge for fixing the sentence she did appear in the following passages:

   I have been assisted by a psychological report of Mr Richard Balfour and the helpful submissions made by your counsel.  Mr Balfour does not consider that you suffer any mental illness but does suggest that you are a man of low average intelligence with a history of learning problems and an antisocial personality disorder.  He says your current behaviour is consistent with paedophilia but you do not have an entrenched form of the disorder.  He considers that your condition would respond to treatment and says you are motivated to participate in rehabilitation for your problem.

   …

   I turn to the question of the non-parole period.  You have some insight into your behaviour.  You have expressed some contrition and remorse.  You are still a relatively young man.  Mr Balfour has expressed concern about your being given a totally crushing prison sentence causing you to lose all hope of leading a lawful and productive life in the community and I share that concern.  I consider it is important that you be given the opportunity to undergo rigorous, supervised and structured rehabilitation as recommended by Mr Balfour whilst you are in gaol in order to avoid you becoming a serious criminal recidivist.  You also require supervision in the community.

   In those circumstances I think it is appropriate to give you a shorter non-parole period than I would otherwise do in order to give you the opportunity to rehabilitate yourself and to do something useful in your life.  I fix a non-parole period of four years.

8. The passages disclose several possible reasons for the Judge fixing what I have found was a manifestly inadequate non-parole period. First, the Judge’s concern that the sentence might be crushing was misplaced. The primary determinants of a non-parole period will be the objective circumstances to which I have referred. Prognostications about how an offender will respond to the length of the non-parole period may affect that balance but are not an alternative to it. Secondly, the evaluation of the prospects for rehabilitation must be realistic. In the case of an offender with poor antecedents and strong criminogenic traits, there will ordinarily need to be something more concrete than expressions of regret and a desire to do better to justify an extended period on parole. Finally, the Judge did not expressly advert to s 10(4) and s 29D CLSA. 

   Should permission to appeal be granted?

9. In my view, both the manifestly inadequate non-parole period and the reasoning which led to it reveal errors of sentencing principle which require correction. 

10. First, the non-parole period of four years, in itself, is so grossly disproportionate to the seriousness of the offending that it must be corrected to maintain sentencing standards for offences of this type.

11. Secondly, in the case of sexual offences against children, s 10(4) and s 29D CLSA must not be ignored.  These provisions had been expressly drawn to the Judge’s attention by the prosecutor but were not referred to in the sentencing remarks.  The strong statutory direction in those provisions must be actively applied and placed in the scales in fixing the head sentence and non-parole period in matters such as these.

12. The errors of approach I have identified require correction in order to ensure that adequate standards are maintained in fixing non-parole periods for sexual offending against children.  This is an appeal which calls for the exercise of this Court’s supervisory jurisdiction.  I would give permission to appeal. 

13. I would allow the appeal. I would set aside the non-parole period. The non-parole period I am about to fix reflects the respondent’s “fair” prospects of rehabilitation. It will allow a substantial amount of time in the community for the respondent to work towards that goal. It recognises, however, that the respondent’s antecedents and prospects for rehabilitation are not, comparatively, illustrious. The non-parole period will also more closely accord with the dictates of s 10(4) and s 29D CLSA.

14. I fix a non-parole period of six years.