R v Fitzgerald

[2004] NSWCCA 5

Reported Decision: 59 NSWLR 493
144 A Crim R 316

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Brett James Fitzgerald [2004] NSWCCA 5
HEARING DATE(S):	12 December 2003
JUDGMENT DATE:	6 February 2004
JUDGMENT OF:	Sully J at 1; Barr J at 23; Newman AJ at 24
DECISION:	Crown appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes Legislation Amendment (Child Sexual Offences) Act 1998 (NSW) Criminal Law Consolidation Act 1935 (SA)
CASES CITED:	R v D (1997) 69 SASR 413 S v The Queen (1989) 168 CLR 266
PARTIES :	Regina Brett James Fitzgerald
FILE NUMBER(S):	CCA 60244/03
COUNSEL:	P. Miller - Crown A. P. Cook - Respondent
SOLICITORS:	C. K. Smith - Crown S. E. O'Connor - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0308
LOWER COURT JUDICIAL OFFICER :	Walmsley DCJ

60244/03

SULLY J
BARR J
NEWMAN AJ

6 February 2004

REGINA v BRETT JAMES FITZGERALD

Judgment

1 SULLY J: This is a Crown appeal against the asserted inadequacy of a sentence of imprisonment passed upon the respondent, Mr. Fitzgerald, by his Honour Judge Walmsley SC on 20 May 2003. The appeal raises various issues in connection with section 66EA of the Crimes Act 1900 (NSW). Section 66EA was inserted into the Crimes Act by the Crimes Legislation Amendment (Child Sexual Offences) Act 1998 (NSW). At the date of the respondent’s sentencing, the section provided relevantly:

“ 66EA (1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years.
(2) It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.
(3) It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales.
(4) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.
(5) A charge of an offence against this section:
(a) must specify with reasonable particularity the period during which the offence against this section occurred, and
(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.
(6) In order for the accused to be convicted of an offence against this section:
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge, and
(b) the jury must be so satisfied about the material facts of the 3 such occasions, although the jury need not be so satisfied about the dates or the order of those occasions, and
(c) if more than 3 such occasions are relied on as evidence of the commission of an offence against this section, all the members of the jury must be so satisfied about the same 3 occasions, and
(d) the jury must be satisfied that the 3 such occasions relied on as evidence of the commission of an offence against this section occurred after the commencement of this section.
(7) In proceedings for an offence against this section, the judge must inform the jury of the requirements of subsection (6).
(8) A person who has been convicted or acquitted of an offence against this section may not be convicted of a sexual offence in relation to the same child that is alleged to have been committed in the period during which the accused was alleged to have committed an offence against this section. This subsection does not prevent an alternative verdict under subsection (10).
(9) A person who has been convicted or acquitted of a sexual offence may not be convicted of an offence against this section in relation to the same child if any of the occasions relied on as evidence of the commission of the offence against this section includes the occasion of that sexual offence.
(10) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence against this section, committed a sexual offence, the jury may acquit the person of the offence charged and find the person guilty of that sexual offence. The person is liable to punishment accordingly.
(11) Proceedings for an offence against this section may only be instituted by or with the approval of the Director of Public Prosecutions.
(12) In this section:
child means a person under the age of 18 years;
sexual offence means any of the following:
(a) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A
(b) an offence of attempting to commit an offence referred to in paragraph (a),
(c) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b).”

2 The indictment which was presented against the respondent charged that between 24 November 2001 and 18 June 2002, at Ermington in this State, and on three or more separate occasions occurring on separate days during that period, he had engaged, in relation to a named child, in conduct that constituted a sexual offence. The offending conduct was particularised in the indictment as having been constituted by:

· An act of indecent assault; and

· Six acts of sexual intercourse without the victim’s consent; with knowledge that the victim was not consenting; and in circumstances of aggravation, namely that the victim was under the age of 16 years.

3 The respondent pleaded guilty to the section 66EA offence thus charged against him. He stood for sentence on 20 May 2003, and was sentenced to imprisonment for 6 years and 9 months, with a non-parole period of 3 years and 6 months, both the head sentence and the non-parole period being dated so as to commence on 23 June 2002.

4 The material facts were, and are, essentially undisputed. It is convenient to adopt the following summary made by the learned sentencing Judge:

“The offender was in a relationship with the victim’s mother for ten years and stayed at her home on a regular basis. During that time he assumed the role of step-father to the victim. Between 25 November 2001 when the victim was aged fourteen years and nine months and 17 June 2002 by which time she was fifteen years and four months, the offender is said to have committed on her seven sexual offences. The first involved an indecent assault whilst they were both at the victim’s home. He told her to remove her clothes, he did the same and rubbed his penis on the outside of her vagina. The event occurred on the victim’s mother’s bed. About three weeks later, in December 2001, on the same bed the offender penetrated her vagina with his penis, masturbated and ejaculated on her stomach. At about the same time the third incident occurred. On this occasion the offender put tape over the victim’s mouth, penetrated her vagina with his penis, withdrew it and ejaculated on her stomach. This event occurred on the kitchen floor of the victim’s house. Between December 2001 and June 2002, again on her mother’s bed, he again penetrated her, withdrew his penis and ejaculated on her stomach. This incident he video taped. He told her if he video taped the incident he would see he was “sick so he would not do this again”.
Also, between December 2001 and June 2002 the offender took the victim to a park in his vehicle and had sexual intercourse with her on the back seat. Again he withdrew his penis and ejaculated on her stomach. Between April 2002 and June 2002 in her mother’s bedroom the offender had sexual intercourse with her again, on this occasion using a lubricant on his penis and telling her that this “won’t hurt as much”. Again he withdrew and ejaculated on her stomach.
Finally, on 17 June 2002 at about 2 a.m. he woke the victim and took her to the kitchen. The victim had by then notified the police of the earlier incidents. She told the offender this, and he said “I want to do it one more time”. He had intercourse with her on the kitchen floor and again withdrew and ejaculated on her stomach.
During interviews with the victim and with the offender each gave the police differing numbers of times when sexual assaults had occurred. The Crown submitted that there were a number of aggravating factors, first, the offender was in a position of trust as her de facto step-father and in a position to exercise authority over her. Secondly, when the third sexual offence occurred, namely, that in December 2001 on the kitchen floor of the home, the offender put tape over the victim’s mouth so she would not scream. Thirdly, during the fourth offence the offender had a video camera near-by switched on recording the event. Fourthly, on the occasion in June 2002 the offender told the victim if her mother woke up he would kill her mother and kidnap the victim. Fifthly, the final offence occurred at a time when the offender knew the victim had made a complaint about him. Sixthly, the offences occurred relatively frequently over the period of time set out above.
The evidence was somewhat uncertain about frequency and regularity. The victim told police that before he put his penis in her vagina there had been five, maybe, occasions when he had rubbed his penis on the outside of her vagina and that there were five times when he had vaginal intercourse with her in his car. The offender agreed rubbing incidents had occurred but not as often. He put it at once a week over a three week period. As to vaginal intercourse the offender said this had occurred three to four times. He later, although this is unclear, (it may be he was referring to all incidents of sexual contact), gave the police an estimate of “around twelve times maximum or fifteen”.
There is, essentially, no dispute about these matters. The offender was taken to them by police in a record of interview and he admitted putting tape on the victim’s mouth, though he said it was taken off before sex occurred. He admitted using a video camera on one occasion and that he made a threat to kidnap the victim, though not to kill her mother. He did not admit he knew the victim had gone to the police when he last assaulted her, but it is clear from the record of interview that he was vague about some matters of detail. Before me, the accused made no effort to dispute these matters.”

5 The gravamen of the Crown appeal, although it is not the only point made by the Crown in support of the appeal, is that the learned sentencing Judge erred in law in his Honour’s basic approach to the task of sentencing an offender for a section 66EA offence.

6 His Honour was referred in argument to a South Australian decision: R v D (1997) 69 SASR 413. He followed the approach that was there approved by the Court of Criminal Appeal of South Australia. His Honour said:

“The Crown drew my attention, however, to the equivalent South Australian provision, namely, s. 74 of the Criminal Law Consolidation Act (1935). That provision carries a maximum penalty of life imprisonment, though it carries the sentencing principle that the term of imprisonment be proportionate to the seriousness of the offender’s conduct (See s. 74 subs. 7)
In the only decision I was taken to on a section equivalent to s. 66EA, namely, The Queen v D (1997) 69 SASR 413, the Court of Criminal Appeal of South Australia, consisting of chief Justice Doyle and Justices Millhouse and Bleby JJ, after a not dissimilar set of circumstances, imposed a head sentence of five years with a non-parole period of three years and six months.
Dealing with the question of what sentencing approach ought to be taken, Doyle CJ, with whom Bleby J agreed, said at page 9,
“It is not necessary to identify the number of offences committed with any precision although if that can be done readily there is no reason why it should not be done. An approach which requires one to identify the number of offences with precision would simply re-introduce the very problem at which s. 74 is aimed. It is sufficient to make an assessment in a general way of the frequency of the offending. In my opinion one should then consider the likely sentence if the offender fell to be sentenced under the provision that creates the relevant offence or offences as distinct from under s. 74. And on that basis that the offender is sentenced in respect of a number of representative offences, those offences being treated as offences which are part of a course of conduct involving similar conduct. In this way the Court will still have regard to the duration of the offending, the seriousness of the offences involved and the frequency of the offending, but the Court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima.”
I am satisfied the offender offended approximately monthly over a seven month period. Were he to be dealt with in respect of a number of representative offences as part of a course of conduct involving similar conduct and were he to be sentenced under s. 61J and s. 61M of the Crimes Act he would face a term of imprisonment of between seven and ten years.”

7 The Crown submits:

“It is submitted that the proper approach is not that adopted in South Australia. The proper approach, it is submitted, is to sentence an offender for the whole of the relevant conduct proved subject to the maximum penalty of 25 years imprisonment. It is the nature and gravity of the conduct involved and the frequency and duration of it which will determine where on the scale of seriousness a particular offence sits. It may be useful to look at the sentences imposed in respect of the underlying offences as well as the nature of those offences themselves for assistance in gauging the seriousness of the conduct but those sentences would not be determinative of the sentence to be imposed under Section 66EA.”

8 The substance of the respondent’s submission is:

“11. It is submitted that a like approach should be adopted to s.66EA. It is not the aggregate criminality revealed by the seven sub-offences which is the primary consideration for sentence. Rather, it is the maintaining of the sexual relationship, defined as it was by the seven relevant sexual offences, over the time period that it prevailed that sets the objective parameters of the criminality.
13. As a general proposition it is submitted that an offender who faces one count under s.25A should fare no worse than if he faced multiple counts of what might be described as simple or single offences. There is no reason to assume that Parliament intended that the same sexual misconduct if charged under s.66EA should result in a higher penalty than if charged under the substantive alternative individual sections.”

9 When the insertion of section 66EA into the Crimes Act was proposed to Parliament, the Attorney-General explained as follows the reason for the proposal:

“The offence of persistent sexual abuse of a child will enable the prosecution of offenders who were previously not able to be prosecuted due to a technicality. That technicality arose from the 1989 decision of S. v The Queen . In that case, the High Court of Australia decided that particularity was required in trials of child sexual assault to the same degree as in trials of other offences.
Honourable members will appreciate that children are often unable to give precise details of offences, particularly where the alleged sexual assaults took place over many years, involved numerous occasions of abuse, and the accused was in a position of trust or authority. The effect of the High Court’s decision is that, if the prosecution is unable to prove particulars of the time, date and place of an allegation of child sexual abuse, then the accused cannot be prosecuted. As a result of the High Court’s decision, every Australian jurisdiction, except our own, created a new offence along the lines of persistent sexual abuse of a child. The Government is of the firm view that the time has come to introduce legislation to better protect children. This bill accomplishes that purpose. By creating the offence of persistent sexual abuse of a child, we recognise the reality of continuing or prolonged child sexual abuse.”

10 The decision of the High Court of Australia in S v The Queen to which the Attorney-General refers, concerned facts which are summarised sufficiently for present purposes in the headnote to the report:

“An indictment charged a father with three counts of carnal knowledge of his daughter. Each count charged one act of carnal knowledge on a date unknown within a specified period of twelve months, namely 1 January 1980 to 31 December 1980, 1 January 1981 to 31 December 1981 and 8 November 1981 to 8 November 1982. The trial judge rejected the accused’s application for an adjournment pending the supply of particulars and his further application that the prosecutor nominate or identify the acts the subject of the counts. The complainant gave evidence of two specific acts of intercourse, but there was no evidence to link either with any one of the specified periods. She also gave evidence of numerous further acts over a period of two years until she left home in November 1982. She could not remember details or frequency other than that it occurred “every couple of months for a year”. The accused was convicted on each count.”

11 Of the five Justices who sat to hear the particular appeal, four were of the opinion that there had been a clear miscarriage of justice. That outcome did not turn upon a mere technicality, the gist of which was, in the Attorney-General’s words, “that particularity was required in trials of child sexual assault to the same degree as in trials of other offences”. The outcome turned, rather, upon substantial failures by the prosecution and by the trial Judge to accord procedural fairness to S in connection with his trial. It will suffice, once again, to take from the headnote the substance of the relevant propositions that the majority Justices endorsed:

“(1) In the absence of any act or acts being identified as the subject of an offence charged in an indictment, the Crown cannot lead evidence that is equally capable of referring to a number of occasions, any one of which might constitute an offence the legal nature of which is described in the charge, and invite the jury to convict on any one of them.
(2) Even if such act or acts are identified, serious questions of admissibility arise; the jury must be instructed as to the proper use to be made of such evidence, if admitted.”

12 Leaving aside for the moment any relevant curial authority, it seems to me that the enactment of section 66EA, if it really is intended to make fair by statute what the High Court held to be unfair in the absence of some such provision, entails these propositions:

[1] Proof beyond reasonable doubt that a person has sexually abused a child on three or more occasions will constitute, without more, a contravention of section 66EA.

[2] In particular, it is unnecessary to prove beyond reasonable doubt:

(a) When, precisely, each foundational act of abuse occurred; but it must be proved beyond reasonable doubt that the dating and timing of each such act lies somewhere within a temporal span, the terminal dates of which have been laid with reasonable precision in the indictment.

(b) “The exact circumstances” of each such foundational act of abuse; but it must be proved beyond reasonable doubt that the nature of the alleged foundational act answers a description which is itself stated with reasonable precision in the indictment.

13 If those propositions be sound, then in my opinion the following additional propositions are valid.

[1] In a case of the present kind the Crown must make a practical decision. Either it will prosecute upon the basis that the particular complainant can be expected to give evidence which, if accepted, demonstrates the occurrence of some offence(s) of child sexual abuse, the relevant particulars of which are sufficiently precise to avoid the S problem; or it will prosecute upon the basis that it cannot expect reasonably to make out so precisely drawn a case, but can expect reasonably to produce evidence which, if accepted, will establish beyond reasonable doubt a generalised pattern of abuse on at least three occasions such as will fall within the ambit of the new statutory offence created by section 66EA.

[2] I can see no reason why the terms of section 66EA would prevent the Crown’s charging such an offender as the present respondent with seven individual counts, should it happen that there is, in the judgment of the Crown Prosecutor who presents the indictment, prospective reliable evidence sufficient to establish those seven charges with the precision required by S ; but charging additionally, and in the alternative, a section 66EA offence. This proposition contemplates, of course, what is legally permissible, rather than what is forensically viable. The latter point needs no present particular examination.

[3] If the Crown elects to prosecute only for a section 66EA offence and secures a conviction; or if the Crown elects to charge a section 66EA offence as an alternative charge, and secures a conviction on that alternative charge; then what has been established is not a miscellany of substantive offences contravening such statutory provisions as sections 61J, 61M and 61N of the Crimes Act . What has been established is, rather, one offence contravening section 66EA.

[4] When that position has been reached, and when the particular offender stands for sentence accordingly, the ultimate question for the sentencing Judge is where a sentence that is just according to proper sentencing principles should stand on a statutory scale, the highest point of which is a sentence of imprisonment for 25 years.

[5] It does not seem to me to be logical to answer that question by considering what sentence(s) might or might not, or could or could not, or should or should not, have been passed had the offender been convicted of precisely particularised contraventions of such sections as section 61J, 61M or 61N, those contraventions having been charged as isolated offences.

[6] Is it any more logical to consider what might have been the sentencing outcome had the offender been convicted of such precisely particularised contraventions, those conventions having been charged and proved as representative offences rather than as isolated offences?

The Court of Criminal Appeal of South Australia in D answered that question in the affirmative. The legislation with which that Court was dealing was section 74 of the Criminal Law Consolidation Act 1935 (SA) . In particular, the Court was concerned with sub-section (7) which provided:

“A person convicted of persistent sexual abuse of a child is liable to a term of imprisonment proportionate to the seriousness of the offender’s conduct which may, in the most serious of cases, be imprisonment for life.”

Doyle CJ explained the relevant reasoning thus:

“On the other hand, counsel for the appellant argued that s 74(7) did not authorise or require the court to depart from the approach that it takes when sentencing a person for what are often called representative counts. The term is well known, and is to be found in a number of decisions. However, as is equally well known, the term is a convenient if somewhat inaccurate term. As applied these days it refers to the approach to which I referred when making reference to R v Reiner . That is, the court sentences an offender in respect of a relatively small number of offences, but does so on the basis that those offences were not isolated offences, but part of a course of conduct involving similar behaviour. On that basis, the scope for extending leniency is reduced. The uncharged offences that are part of the course of conduct cannot be used to increase the potential maximum punishment, which maximum remains the accumulation of the maxima attracted by the charged offences. The only way in which the uncharged offences can be used is to rely upon them to refuse to extend the leniency that might be extended if the offences for which the offender is convicted were isolated offences. As Bray CJ said in R v Reiner (at 105), the distinction may seem metaphysical, but as he also said it is “a recognised and time honoured distinction for all that”.
The process of sentencing for a limited number of offences, on the basis that they are part of a wider course of conduct, has been regarded by this Court in the past as enabling the court adequately to take account of the seriousness of a course of conduct as a whole. The practice is well established.
Does s 74(7) have the effect that the sentence imposed under that provision would normally be heavier than it would be under the existing practice, because, as with sentences actually taken into account, the available maximum has increased?
In my opinion the terns of s 74 suggest that it is a provision concerned with certain procedural difficulties presented by cases involving multiple sexual offences against children. In such cases it is often difficult to identify the separate offences with sufficient particularity, in terms of time and circumstance, to meet the usual requirement of the law that adequate particulars be given. Subsection (4) is directed at that very problem. Subsections (8) and (9) provide the protection necessary to a person who is convicted on the basis of a charge laid under s 74.
There is nothing in the terms of s 74, apart from subs (7), to suggest that Parliament intended that the courts should change the approach that they have taken when sentencing in respect of a course of conduct. The terms of subs (7), and the reference to life imprisonment in particular, are explicable on the basis that some of the sexual offences with which s 74 deals attracts life imprisonment.
Of course, the words of s 74(7) remain. As counsel for the Director pointed out, a person convicted under s 74 is convicted on a charge which “subsumes all sexual offences committed by the same person against the same child during the period of the alleged sexual abuse”: s 74(8). There is an obvious analogy to the process of taking uncharged offences into account.
Nevertheless, for the reasons that I have indicated, I have come to the conclusion that the reference in subs (7) to the “seriousness of the offender’s conduct” should be taken as a reference to the seriousness of that conduct as it would have been assessed by the court, in accordance with current practice, when dealing with distinct offences that are punished on the basis that they are part of a course of conduct involving like offences. In short, I do not consider that s 74 has brought about a change in the approach to the sentencing of offenders in such cases.
In my opinion, the approach to be taken under s 74, in a case like the present one, is this. The court should identify the different offences involved and the maximum punishment that they attract. In the present case the offences are unlawful sexual intercourse with a child above the age of 12 years, that attracts a maximum punishment of seven years imprisonment, and indecent assault on a child above the age of 12 years, that attracts a maximum punishment of eight years imprisonment. It is not necessary to identify the number of offences committed with any precision, although if that can be done readily, there is no reason why it should not be done. An approach which requires one to identify the number of offences with precision, would simply reintroduce the very problem at which s 74 is aimed. It is sufficient to make an assessment in a general way of the frequency of the offending. In my opinion one should then consider the likely sentence if the offender fell to be sentenced under the provision that creates the relevant offence or offences, as distinct from under s 74, and on the basis that the offender is sentenced in respect of a number of representative offences, those offences being treated as offences which are part of a course of conduct involving similar conduct.
In this way the court will still have regard to the duration of the offending, the seriousness of the offences involved, and the frequency of the offending. But the court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima.” (at 419,420)

I respectfully agree with this reasoning and with the sentencing approach which it approves. In my opinion, there is nothing in the New South Wales section 66EA, just as there is nothing in the South Australian section 74, to suggest that Parliament intended that the sentencing for a course of conduct which has crystallised into a section 66EA conviction, should be more harsh in outcome than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences.

14 It follows, therefore, that in my opinion the learned sentencing Judge did not err in law in adopting the approach approved by the decision in D.

15 If that sentencing approach be applied to the given facts of the respondent’s case, then the picture which emerges as to the objective criminality of the section 66EA offence, is to the following effect:

· A pattern of sexual abuse extending over a 7 month period.

· A component of that pattern in the form of seven identified instances of such abuse, each of those instances being serious but not in the worst case category.

· A complementary component of the pattern in the form of other instances of abuse which could not be precisely identified or particularised.

· Aggravating circumstances, some of which were admitted and others of which were not admitted.

· An awareness on the part of the offender that what he was doing was wrong; coupled with reactions of revulsion which had led him to make an attempt on his own life.

16 The learned sentencing Judge concluded that the section 66EA offence for which sentence was to be passed was “serious but not the most serious category of crime under this section”. I see no proper basis for this Court’s taking any more adverse view.

17 The relevant subjective considerations are examined in appropriate detail at pages 7 through 12 of the Remarks on Sentence. The respondent’s personal background and history were sad and troubling; and his Honour in examining them accepted, as he was plainly entitled to do, the evidence of Dr. John Baron, a clinical psychologist who had submitted a pre-sentence report, and who gave oral evidence which his Honour found “most impressive”. That evidence justified, in my opinion, his Honour’s conclusions as to the respondent’s prospects of rehabilitation. It is, I think unnecessary to go in any extended further detail to the other matters that are canvassed at pages 7 through 12 of the remarks on sentence. The remarks are extensive; they are clear; and I see no error in what they say.

18 I do advert, however, to one particular matter.

19 The respondent’s current imprisonment is his first experience of full-time custody. In that connection he gave the following evidence which his Honour accepted:

“Q. And you went into custody as I understand on 23 June last year, is that correct?
A. That is correct.
Q. And you have remained in custody since, is that right?
A. Yes.
Q. Initially you were taken to which gaol?
A. Silverwater.
Q. And whilst you were in Silverwater you were in strict protection or just protection?
A. Non association.
Q. You were in protection is that correct?
A. Correct.
Q. And the category of protection you were in was non association protection?
A. Yes, that is correct.
Q. Can you tell his Honour what that means.
A. Twenty-three and a half hours in a cell and let out half an hour for a phone call or to go out in the sun for just half an hour.
Q. And how long were you in that form of protection?
A. Until 17 August.
Q. And what happened on 17 August?
A. I was transferred to Parklea.
Q. And what is your current category in Parklea?
A. Strict protection.
Q. And what restrictions are placed on you at Parklea?
A. We are locked up, I think it is 19 hours a day. We have a little bit more freedom, we can get out, I think three hours in the morning and two and a half hours in the afternoon.
Q. And is it fair to say that there are no work opportunities where you are held in custody now?
A. That is correct.
Q. And were there any work opportunities whilst you were in custody at Silverwater?
A. No.
Q. In respect of your access to education whilst you were in Silverwater there was no access to education, is that correct?
A. That is correct.
Q. You handed to me today a Certificate of Adult Education that you achieved whilst in custody at Parklea, is that correct?
A. That is correct.”

20 It could not be said sensibly that incarceration of such a character is other than harsh in the highest degree. This is a matter, although not itself determinative, bearing heavily upon the respondent’s subjective features; upon the factor of special circumstances; and upon this Court’s relevant discretions.

21 The learned sentencing Judge settled upon a head sentence of 9 years’ imprisonment which his Honour then discounted by 25 per cent for the ramifications of the plea of guilty. I do not accept the Crown submission that this starting point was manifestly inadequate upon a fair balancing out of the relevant objective and subjective considerations. The 25 per cent discount was well within the compass of sound sentencing. So was the conclusion as to special circumstances.

22 I would dismiss the Crown appeal

23 BARR J: I agree with Sully J

24 NEWMAN AJ: I agree with Sully J.

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Last Modified: 02/12/2004