R v Leggett
[2000] WASCA 327
•3 NOVEMBER 2000
R -v- LEGGETT [2000] WASCA 327
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 327 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:115/2000 | 7 SEPTEMBER 2000 | |
| Coram: | PIDGEON J IPP J WHEELER J | 3/11/00 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Crown appeal against sentence allowed | ||
| PDF Version |
| Parties: | THE QUEEN ALLAN ANTHONY LEGGETT |
Catchwords: | Criminal law Sentence Crown appeal Carnal knowledge Indecent dealing Inciting indecent dealing Child under 13 years Whether total effective sentence manifestly inadequate Principle of general deterrence Mitigating and aggravating factors Whether delay between commission of offences and complaint to police is a mitigating factor Concurrent and cumulative terms |
Legislation: | Criminal Code 1913 (WA), s 185, s 189 as they applied in 1981-1983 |
Case References: | Brockman v The Queen unreported CCA SCt of WA Lib No 970044; 4 February 1997 Duncan v The Queen (1982) 9 A Crim R 354 Fraser v The Queen unreported CCA SCt of WA Lib No 8530; 10 October 1990 Lowndes v R (1999) 195 CLR 665 R v Clark [2000] WASCA 229 R v Podirsky (1989) 43 A Crim R 404 Roberts v The Queen [1999] WASCA 273 Steuart v The Queen, unreported CCA SCt of WA, Library 950486, 15 September 95 Stretton v R, unreported; CCA SCt of WA; Library No 950282; 1 June 1995 The Queen v Law [1995] QCA 444 Woods v The Queen (1995) 14 WAR 341 "F" v The Queen (1998) 101 A Crim R 578 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- LEGGETT [2000] WASCA 327 CORAM : PIDGEON J
- IPP J
WHEELER J
- Appellant
AND
ALLAN ANTHONY LEGGETT
Respondent
Catchwords:
Criminal law - Sentence - Crown appeal - Carnal knowledge - Indecent dealing - Inciting indecent dealing - Child under 13 years - Whether total effective sentence manifestly inadequate - Principle of general deterrence - Mitigating and aggravating factors - Whether delay between commission of offences and complaint to police is a mitigating factor - Concurrent and cumulative terms
Legislation:
Criminal Code 1913 (WA), s 185, s 189 as they applied in 1981-1983
Result:
Crown appeal against sentence allowed
(Page 2)
Representation:
Counsel:
Appellant : Mr R E Cock QC
Respondent : Mr M R Gunning
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Mark Gunning
Case(s) referred to in judgment(s):
Brockman v The Queen unreported CCA SCt of WA Lib No 970044; 4 February 1997
Duncan v The Queen (1982) 9 A Crim R 354
Fraser v The Queen unreported CCA SCt of WA Lib No 8530; 10 October 1990
Lowndes v R (1999) 195 CLR 665
R v Clark [2000] WASCA 229
R v Podirsky (1989) 43 A Crim R 404
Roberts v The Queen [1999] WASCA 273
Steuart v The Queen, unreported CCA SCt of WA, Library 950486, 15 September 95
Stretton v R, unreported; CCA SCt of WA; Library No 950282; 1 June 1995
The Queen v Law [1995] QCA 444
Woods v The Queen (1995) 14 WAR 341
Case(s) also cited:
"F" v The Queen (1998) 101 A Crim R 578
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1 PIDGEON J: I agree with the reasons of Wheeler J and with the orders proposed.
2 IPP J: I have read the reasons to be published by Wheeler J. I am in agreement with those reasons and have nothing further to add.
3 WHEELER J: This is a Crown appeal against sentences imposed upon the respondent who was sentenced on 5 May 2000 to an effective sentence of 4 years' imprisonment with eligibility for parole. The indictment on which he was sentenced contained ten offences as follows:
(i) Counts 1 2 & 3
3 counts of indecent dealing of a child under 13 years involving the Complainant touching the Respondent's penis (Criminal Code Section 189(2)), maximum penalty 7 years);
(ii) Count 4
1 count of indecent dealing of a child under 13 years involving cunnilingus by the Respondent upon the Complainant (Criminal Code Section 189(2), maximum penalty 7 years);
(iii) Counts 5 & 6
2 counts of indecent dealing involving incitement of the Complainant to suck or touch the Respondent's penis (Criminal Code Section 189(2), maximum penalty 7 years);
(iv) Counts 7 & 8
2 counts of unlawful carnal knowledge (Criminal Code Section 185, maximum penalty 20 years);
(v) Counts 9 & 10
2 counts of indecent dealing of a child under 13 years involving oral penetration of the Complainant by the Respondent's penis (Criminal Code Section 189(2), maximum penalty 7 years).
4 The sentence was structured by imposing 2 years' imprisonment on each of the offences carnal knowledge concurrent with each other, and 1 year on each of the indecent dealings, each concurrent with each other but with two of those being cumulative upon the carnal knowledge sentences.
(Page 4)
5 The principles relating to Crown appeals were recently restated in Lowndes v R (1999) 195 CLR 665 at [15]. I do not think it is necessary to restate them here.
Factual Background
6 The complainant, Amanda, was born on 23 August 1970. Her parents divorced when she was young and her mother remarried the respondent in 1977 when Amanda was 7 years of age. When she was 9 years of age, her mother and the respondent had a daughter. The marriage had its ups and downs and the couple split up a number of times during their marriage. During a three-year separation commencing in 1992, the respondent had sole care of the second child and his wife gave birth to her third daughter from another relationship. Amanda’s mother and the respondent later reunited.
7 The offences occurred in the family home in Belmont during the time when the complainant was between 11 and 12 years of age and can be categorised into four separate occasions of offending.
8 The first offences the subject of the indictment occurred when the complainant was 11 years old and had gone to the workshop of her home where the respondent was after school. She had had some sex education classes at school in which the word “masturbation” was used and, being too embarrassed to approach her teacher as to its meaning, she asked her stepfather after school. He explained the meaning of the word to her and then spoke to her in a way that indicated she had made him aroused. He took her hand and placed it on his erect penis, but she quickly withdrew her hand. The respondent assured her that it was all right for her to continue to touch his penis and told her to do it again. She did as she was told and again touched his penis over his clothing. He then took her hand and put it down the front of his clothing, under his underwear, and instructed the complainant to stroke his penis and kept his hand over hers while she did so.
9 The second group of offences occurred on another occasion during the year that the complainant was 11 years old. She was in her bedroom in the family home, her mother being out at that time. The complainant remembered that it was daytime because the respondent had counselled her to look out of the window to see if anyone was coming. The respondent told her to lie on her bed on her back, pushed her knees up, removed her underwear and he then performed cunnilingus upon her while touching her breasts. Soon after this he pulled her up off her back,
(Page 5)
- he lay on the bed and instructed her to suck his penis. She did this for a short time but stopped because the conduct made her gag and feel sick. He then instructed her to masturbate him, showed her how to do this and had her continue until he ejaculated.
10 With respect to the encounter giving rise to the third set of offences, the complainant was approximately 12 years old and in her bedroom when the respondent entered her room, lay on top of her and rubbed his erect penis against her vagina. He penetrated her vagina by using small pelvic pushes, causing the complainant pain and discomfort. She told him it was hurting her but notwithstanding this, the respondent continued to push his penis into her. She told him that it hurt again and by this time had tears in her eyes so that the respondent stopped and comforted her and apologised for causing her pain. He pulled his body away and lay on his side hugging her and kissed the complainant's neck, face and lips. A short time later he rolled the complainant onto her back, placed his penis against her vagina and again partially penetrated her. Again the complainant protested because of the pain that this act was causing her and the respondent stopped.
11 The final set of offences occurred in the family swimming pool when the complainant was about 12 years old. The complainant and the respondent were in the pool and he asked her to touch his penis. As the complainant went to do as she was told, he pushed her head under the water to his groin. The complainant put her mouth onto his penis and he pushed her up and down in the water while his penis was in her mouth. After a short while she came up for air. She took a breath and she was pushed down again and placed her mouth over his penis. While this occurred she was suddenly pushed away and when she surfaced she realised that her mother was walking out of the back door of the family home to the pool area and that that was the reason why the conduct was interrupted.
12 The statement of the complainant Amanda suggests that she was also required to perform oral sex on him on a number of other occasions and that he would ask her to touch his penis on a number of occasions, having asked her to meet him in the workshop for that purpose. For about a year however, they stayed at her grandparent's house, during which time there was no sexual contact between the respondent and Amanda. When she was about 16 years of age, he ran his hand up and down the side of her body and said words to the effect of "I missed the way we used to be together" and asked her whether she did too. She replied, "No" and walked away from him.
(Page 6)
13 In his videotaped record of interview, the respondent said that he did not recall the detail of events which had occurred between Amanda and himself. However he said he did not recall any oral sex performed by her. Otherwise, he agreed that there had been a number of occasions of what he called a "touchy-feely" nature.
14 His Honour, the learned sentencing Judge, made no express finding in this respect, but I think it is appropriate to take the view that the matters the subject of the indictment were not the only occasions of sexual contact between the respondent and Amanda, and the respondent's claim that he "desisted of his own volition" must be understood in the light of the lack of opportunity whilst staying at Amanda's grandparents (it would appear her mother's parents' house) and in the light of her rebuff to him when she was older.
15 Amanda disclosed the offences to her mother in mid-1999 when she was almost 29 years of age and the respondent left the family home almost immediately. Over some weeks he and his wife reunited and he returned to the family home. The complainant subsequently reported the offences to the police.
16 So far as the respondent's personal circumstances were concerned, he was at the time of sentencing 49 years of age and had been a social trainer. He married Amanda's mother in 1977 and there was one natural child of that relationship and two stepchildren. Amanda was the eldest stepchild and there was at the time of sentencing a young stepchild, approximately 7 years of age.
17 The principal factor which his Honour regarded as mitigating was that the respondent had entered a plea of guilty to the charges, thereby sparing the community the expense of a trial and the complainant the ordeal of one. His Honour also noted that the plea should be regarded as reflecting remorse, although his Honour expressed "disquiet" in relation to certain of the matters arising out of the videotaped record of interview. That disquiet was, in my view, very well founded. Repeatedly, the respondent insisted that there had been "willingness" on Amanda's side and denied that what had occurred had been "all bad". His attitude generally is reflected in passages such as the following:
"She [Amanda] wants me to be - well I suppose I am, but she wasn't a little child and she was a developing woman, she was as tall as me, and, as I say, it shouldn't have happened I know. I'm the older one. I should have had control, I guess, but she -
(Page 7)
- on a lot of occasions she was fairly - at least I'd say a partially willing participant. She was definitely curious to see what was going to happen, and at anytime she could have just walked away; anytime she could've - she could've just said, 'stop don't do it' and I would have, and she knew that …".
18 It is to be remembered that on the occasions referred to in these passages, the complainant was approximately 11 years of age. The videotaped record of interview reflects a total lack of insight into the harm caused to the victim of this conduct and into the wrongfulness of the conduct. There was before his Honour a report from a director of the Safe Care program suggesting that the respondent had made some "insightful connections" into his behaviour; this may be so, but the comment is to be understood against the background of the respondent's complete lack of insight at the outset. The writer of that report suggested that the respondent was not at high risk of reoffending, based upon the fact that his offence was a number of years ago and had not been repeated. His Honour accepted, again with reservations, the proposition in relation to the low risk of reoffending. Those reservations were also, in my view, well founded, given that there was no evidence that in the intervening years the respondent had had prolonged unsupervised access to a child similar in age to Amanda's age at the time of the offences and who was not, as Amanda was not, his natural daughter. It is to be noted that the respondent appears in his record of interview to distinguish between Amanda and his natural daughter and in part to explain his behaviour towards Amanda by the fact that she is not his natural daughter.
19 The learned sentencing Judge had before him and took into account a number of character references, including a reference from the respondent's aged parents, who were significantly dependant upon him, and references from the complainant's mother and from his natural daughter to the effect that they were horrified by the revelations but that he had always been a good carer and of good character in other senses.
Sentencing Principles - Sexual Offences
20 The starting proposition is that there is no tariff in relation to sexual offences. However a single act of sexual assault, which involves penetration of the vagina by the penis, will commonly attract a sentence of about 6 years' imprisonment. Such an offence accompanied by a circumstance of aggravation, where the complainant is under 16 years, will generally attract a sentence of 8 years: R v Podirsky (1989) 43 A Crim R 404; R v Clark [2000] WASCA 229. A starting sentence of
(Page 8)
- 6 years has been regarded as being at the lower end of the scale for offences involving penile penetration, 6 years being the sentence which often is imposed after taking into account mitigating factors: Brockman v The Queen unreported CCA SCt of WA Lib No 970044; 4 February 1997, per Malcolm CJ at 9. A sentence of 7 years for offending of a related character is not excessive: Fraser v The Queenunreported CCA SCt of WA Lib No 8530; 10 October 1990.
21 Further, the court has often noted that cases of intra-familial sexual abuse are of a kind which should typically attract significant sentences of imprisonment: Woods v The Queen(1995) 14 WAR 341 at 354 per Anderson J. Offences involving penetration of a young child are of the utmost seriousness and less weight should be given to mitigating factors where there is an abuse of trust. Penile penetration is regarded as being a very bad example of sexual abuse: see Steuart v The Queen, unreported CCA SCt of WA, Library 950486, 15 September 95.
22 It must of course be recalled that the offences for which the respondent fell to be sentenced bore maximum penalties different from those which the legislature has now prescribed. Further, the counts of indecent dealing which involved cunnilingus by the respondent upon the complainant and requiring the complainant to suck the respondent's penis, would now be characterised as sexual assault, so as to attract a significantly greater maximum penalty. While the appropriate penalty will be one which reflects the maximum imposed by the legislature at the relevant time , it is also the case that the seriousness of the conduct constituting the offence falls to be evaluated (to the extent that there may be a difference in attitude over time) by reference to contemporary standards of seriousness: Roberts v The Queen [1999] WASCA 273.
The Sentences in this Case
23 The learned sentencing Judge indicated that for the offences of unlawful carnal knowledge he had taken as his starting point a sentence of 3 years and reduced it to 2 years for factors in mitigation, a reduction of one third. With respect to the offences for indecent dealing and inciting indecent dealing the learned sentencing Judge did not indicate his starting point. Recognising that the sentence imposed for the unlawful carnal knowledge was two thirds of the learned sentencing Judge's starting point, it might be assumed that in respect of the indecent dealings and inciting to indecently deal that the starting point was 18 months: Stretton v R, unreported; CCA SCt of WA; Library No 950282; 1 June 1995 per Malcolm CJ at 5.
(Page 9)
24 As I have said, even in the absence of a circumstance of aggravation, a starting point of 6 years has been regarded as being at the lower end of the scale for offences involving penile penetration. Six years is often the sentence which is imposed after taking into account mitigating factors. In the present case there were two acts involving penile penetration of the complainant: Brockman v R, per Malcolm CJ at 9.
25 Having regard to these factors, a starting point of 3 years' imprisonment for unlawful carnal knowledge does appear to be so low as to suggest error on its face. The respondent submits that these offences fall "towards the lower end of the scale". That assertion is based upon at least two propositions. It was the respondent's submission that at no stage did he intend to "fully penetrate" the complainant, but that rubbing against the vagina "could have" partially penetrated the labia majora. Part of the difficulty with this proposition is that it is based upon a memory of the events which the respondent has repeatedly asserted in his record of interview to be extremely sketchy. It may be accepted that that is the respondent's recollection of the incidents. However, there is nothing put before the court by the respondent to suggest that the complainant's statement to the effect that the penetration caused her pain, that she repeatedly requested the respondent to desist, that she had tears in her eyes and that it nevertheless took him some little time to desist and that he shortly thereafter recommenced his penetration of her, is incorrect. Indeed, on a number of occasions in his record of interview, the respondent concedes that the complainant's recollection of the relevant incidents is substantially better than his own. Any distinction between "full" and "partial" penetration in those circumstances is therefore, in my view, of very limited significance.
26 The second reason it is suggested that these offences are towards the lower end of the scale appears to be that it is said that the respondent desisted of his own volition from further offending. That is, as I have noted, to be understood against the background which I have described suggesting that there was some other sexual contact and that a stage was reached where further offending would have been more difficult for the respondent. Further, his desisting afterwards cannot alter the inherent seriousness of the offences themselves at the time of their commission.
27 So far as the indecent dealings are concerned, the seriousness with which they are to be regarded can be seen from the fact that they are now included in law in the class of sexual penetration offences. Further, in relation to count 4, it is to be noted that the complainant's statement is to the effect that this was a very lengthy episode of cunnilingus; both her
(Page 10)
- statement and the respondent's record of interview suggest that part of the respondent's intention at the time was to sexually arouse the complainant and to cause some form of sexual response in her and that he achieved a degree of success in this enterprise. What was intended was the corruption of the complainant so that she would be a willing sexual partner of the respondent. That cannot be regarded as other than a very serious offence of its kind, having regard to the age of the complainant and the relationship between the complainant and the respondent. In respect of that count, a starting point of approximately 18 months would appear to manifest error, having regard to the maximum available of 7 years' imprisonment. In my view, a more appropriate starting point, even having regard to the maximum penalty available at the time, would have been of the order of 4 years.
28 Having regard to the sentencing principles to which I have referred, and to the circumstances of the offence, the sentences imposed in respect of count 4 (indecent dealing by cunnilingus) and the unlawful carnal knowledge counts 7 and 8 are each so low as to manifest error and, having regard to the totality of the conduct involved in the counts on the indictment, a total effective sentence of 4 years' imprisonment would appear to be so inadequate as to manifest a failure to give sufficient weight to the principle of general deterrence. These comments are subject to any particular matters of mitigation, however, and I now turn to matters of mitigation.
29 It may be accepted that the respondent is otherwise of good character but, as has been noted on many occasions, limited weight can be given to that circumstance, having regard to the seriousness of the offences and to the circumstance that it is often the fact that an offender is otherwise of good character which enables him to escape detection at the time at which offences of this kind occur. The respondent also refers by way of mitigation to the fact that he has lost his employment, having voluntarily resigned as a social trainer on the basis that it would be inappropriate for him to have the charge of vulnerable people. However, loss of employment is a common feature of offences of this seriousness, particularly where a sentence of imprisonment is imposed. He points to the fact that he has not offended against his natural daughter or his other stepdaughter. I do not think any particular weight can be given to these matters, having regard to the fact that he appears to distinguish sharply between his natural daughter and a step-daughter as an appropriate subject for sexual advances, in the one case, and having regard to the fact that the other step-daughter is at present but 7 years of age.
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30 There remains the fact that these offences were committed a considerable period of time ago and that the delay between offending and sentencing was not caused by the respondent. I think this issue is of sufficient significance to require separate examination.
Delay in Sentencing
31 The facts relevant to delay are as follows. The offences occurred in 1981 to 1983, some 19 years ago. The complainant rebuffed the respondent’s advances when she was 16, approximately 14 years ago. The next event of note is relevantly summarised in the pre-sentence report:
"[The respondent] recalled [the complainant] (then aged twenty-one), approaching him when his natural daughter was around the same age as the victim when the offences occurred. She asked if the child would be safe from his advances and he assured her she would and no further mention of the matter was made until mid-1999".
32 The complainant was almost 29 when she disclosed the offences to her mother and it was in December 1999 when formal complaints were made.
33 The "delay" between commission and reporting can be examined in terms of the following periods, each bearing on the issue of whether delay can be characterised as mitigatory:
1 The commission of the offences 1981-1983 to the time that the complainant was propositioned by the respondent when she was sixteen years of age (about four years);
2 The time of the propositioning of the respondent to the time that the complainant confronted the respondent (approximately five years);
3 The time of the confrontation to the complainant’s disclosure to her mother, (about eight years);
4 Finally, the time of disclosing the offences to her mother to the time of the police complaint (about six months).
34 The Queensland Court of Criminal Appeal had occasion to visit this issue in the case of The Queen v Law [1995] QCA 444. In that case the relevant offences occurred between 1962 and 1968 and at the time the respondent in that case was between 35 and 41 years of age. The complainant at the time was between 7 and 13 years of age. The
(Page 12)
- complainant apparently made no complaint until 1983 after which he advised the respondent that he had done so. However, inexplicably, his complaints were not pursued by the police. The respondent relied on these matters as mitigating factors, and the sentencing judge accepted the submission and took delay into account, as well as the delay caused by the failure of the complainant to make any complaint before 1983, in the sentence he imposed. The Court was of the view that:
"It is difficult to see why lapse of time between the commission of an offence and sentence should be a mitigating factor in sentence unless that delay has resulted in some unfairness to the offender. There are two obvious cases where this will be so and in which, consequently, it has been said that that unfairness should mitigate the sentence which should otherwise be imposed.
The first is where there is delay between the date of apprehension of the offender, or first indication to him by someone in authority that he is likely to be prosecuted, and the date of the sentence, in consequence of which the offender may have had his liberty curtailed or his reputation called into question or, at least, left in a state of uncertainty caused by a failure to prosecute his case more quickly: Duncan (1982) 9 A Crim R 354 is an example of that ... So too are Crawley (1981) 5 A Crim R 451 at 458, Jones and Harris (1989) 41 A Crim R 1 at 19 and Kane [1974] VR 750 at 767. The rationale for mitigation in these cases is analogous to that for which, in jurisdictions where a right to a speedy trial is constitutionally or legislatively guaranteed, proceedings may be stayed because of such delay. See for example Barker v Wing 407 US 514; US v Marion 404 US 307; Mills v R (1986) 26 CCC (3d) 481. See also Jago v District Court (NSW) (1989) 168 CLR 23. R v Braham (1994) 73 A Crim R 353, by contrast, is an example of a case in which the offender, because initially a nolle prosequi had been entered against him, probably thought during the subsequent period of delay until his further arrest, that 'he had escaped the clutches of the law' and in which in consequence, it was held that the delay should not mitigate the sentence: at 365-6. See also R v Glennon [1993] 1 VR 97.
The second is where the time between the commission of the offence and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation
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- process had made good progress. That factor was referred to by Street CJ in Todd [1982] 2 NSWLR 517 at 519, 520 in a passage cited with approval by the High Court in Mill (1988) 166 CLR 59 at 64. See also Bell (1981) 5 A Crim R 347 at 351; Quinlivan (Crt of Crim.App.Vic. No. 291 of 1994). Duncan is also an example of this."
35 I would respectfully agree with that analysis. Applying it to the present case, this is not a case where there was a delay in the police prosecuting the respondent. Far from having had his liberty curtailed, or reputation called into question during the period of delay, cases of this kind may well be seen as those in which the offender has unjustifiably enjoyed liberty and good reputation during a period when, had his offences been disclosed, he would not have done so.
36 Nor is the present a case where there has been significant rehabilitation. The most that can be said is that, in circumstances where there was very limited opportunity for offending of the same type, the respondent has not offended. The lack of insight and remorse to which I have referred tend to indicate that this is not a case in which there has been any positive decision by the offender to desist from offending and to take steps towards his rehabilitation. The respondent cannot say that he has turned his life around since the offences (cf Duncan v The Queen (1982) 9 A Crim R 354). This is not to say that his lack of offending and contribution to society during the intervening years are to be given no weight. His conduct both before these offences and since he ceased offending against the complainant, are the reason that he is to be regarded as a person "otherwise of good character". That factor was recognised by his Honour, and I take account of it in arriving at the sentences which I would substitute in respect of some of these offences (recognising also, however, that as I have noted, otherwise good character is generally of limited weight in respect of offences such as these).
37 Finally, turning to a question of overall unfairness, there are no circumstances in this case which suggest that the delay might in any way have operated unfairly upon the respondent. Even after being confronted by the complainant and later when the offences were brought to the attention of his wife, the only effect was a brief separation from his wife. The fact that the offences remained undetected enabled him to continue his work with disabled persons and he suffered no financial consequences until the offences were formally reported. It is therefore my view that nothing in the delay between offending and sentencing should lead to any further sentencing discount.
(Page 14)
Conclusion
38 As I have indicated, it appears to me that his Honour's starting point in respect of counts 4, 7 and 8 was so low as to manifest error and that the starting point in respect of each of those offences should have been of the order of 4 years. Discounting a sentence of 4 years' imprisonment by one-third, as his Honour did, in order to make allowance for the fast-track plea of guilty and for other mitigating factors, gives a sentence of 2 years and 8 months' imprisonment. Notwithstanding that it appears to me that the other sentences imposed by his Honour are at the lower end of an appropriate range, they do not appear to me to be so low as to require correction, having regard to the principles governing appeals against sentence and particularly having regard to the principles which govern Crown appeals.
39 I would not alter the general effect of the orders his Honour made as to whether sentences should be served cumulatively or concurrently. There were in effect four separate incidents, those involving the cunnilingus and the penetration of the complainant's vagina by the respondent's penis being in my view the most serious. It is appropriate that sentences in respect of those incidents be cumulative both upon each other and upon the other sentences. Having regard to the fact that the penetration by the respondent's penis, although the subject of two counts, was effectively one prolonged incident involving penetration interrupted by a short period of contrition, it would be appropriate that the two counts be concurrent with each other. Having regard to the separation in time and the different nature of the offending, it might well be thought that the conduct the subject of counts 9 and 10, and the conduct the subject of counts 1 to 3 inclusive, should also be the subject of sentences which are cumulative upon each other and upon those other sentences, but, again having regard to the principles governing Crown appeals, I would not take issue with his Honour's apparent conclusion that the proper reflection of the totality of the respondent's criminality would not require those sentences to be cumulative upon each other.
40 The result of the substitutions which I would propose, would lead to an effective sentence of 6 years and 4 months' imprisonment, with an order for eligibility for parole. For the sake of clarity I have set out the new sentence structure as follows.
Counts 7 & 8 2 years and 8 months' imprisonment concurrent with each other.
(Page 15)
Count 4 2 years and 8 months' imprisonment cumulative upon counts 7 and 8
Counts 1 & 3 1 year's imprisonment in each case, concurrent with each other and concurrent with count 4
Counts 2, 5, 6, 9 & 10 Sentences of 1 year's imprisonment each concurrent with each other but cumulative upon the other terms imposed.
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