R v Moon

[2000] NSWCCA 534

Reported Decision: 117 A Crim R 497

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Moon [2000] NSWCCA 534
FILE NUMBER(S):	CCA 60710/99
HEARING DATE(S):	01/12/00
JUDGMENT DATE:	14 December 2000
PARTIES :	Regina v Leonard Raymond Moon
JUDGMENT OF:	Fitzgerald JA at 1; Whealy J at 6; Howie J at 24

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/41/0212
LOWER COURT JUDICIAL OFFICER :	J. B. Phelan DCJ

COUNSEL :	H. Dhanji - Applicant T. L. Buddin SC - Crown
SOLICITORS:	D. J. Humphreys - Applicant S. E. O'Connor - DDP
LEGISLATION CITED:	Crimes Act 1900 Sentencing Act 1989 Interpretation Act 1987 NSW Crimes (Amendment) Act 1984 Sentencing (Criminal Procedure Act)
CASES CITED:	R v Shore (1992) 66 A Crim R 37 at 42 R v Watson (1999 NSWCCA 227 (unreported) 12 August 1999) R v Maclay (1990) 19 NSWLR 112 Radenkovic v The Queen (1990) 170 CLR 623 R v T (1990) 47 A Crim R 29 R v Theobald (unreported NSWCCA 22 July 1994) R v Bo Too (unreported NSWCCA 16 July 1992) R v Combo (1971) 1 NSWLR 703 R v Moffitt (1990) 49 A Crim R 20 at 38 House v The King (1936) 55 CLR 499 at 505 Dinsdale v The Queen (2000) HCA 54 at paras (3-6) Lowndes v The Queen (1999) 195 CLR 665 at 671-672 R v JCW [2000] NSWCCA 209 at paras 30-38 Sha (1988) 38 A Crim R 334 at 335 R v Peel [1971] 1 NSWLR 247 Oliver (1980) 7 A Crim R 174 Veen v The Queen (No 2) (1988) 164 CLR 465 at 478 Ibbs v The Queen (1987) 163 CLR 447 at 451 Gilson v The Queen (1991) 172 CLR 353 at 364 Baumer v The Queen (1988) 166 CLR 51 at 57 Dodd (1991) 57 A Crim R 549 Veen v The Queen (1979) 143 CLR 458
DECISION:	By majority - grant leave to appeal and allow the appeal. The sentences imposed upon the applicant should be quashed. In respect of each offence the applicant should be sentenced to 18 months imprisonment with a non parole period of 13 months 10 days. The sentence is to commence on 5 November 1999 and the non parole period is to expire on 14 December 2000 the date upon which the applicant is to be released to parole.

IN THE COURT

OF CRIMINAL APPEAL

60710/99



FITZGERALD JA
WHEALY J
HOWIE J


THURSDAY 14 December 2000


REGINA v Leonard Raymond MOON


JUDGMENT

1    FITZGERALD JA: The judgments of the other members of the Court make it unnecessary for me to do more than state my conclusions. 2    On 11 November 1999, the applicant was sentenced for four offences of indecent assault which he had committed between 1966 and 1971. The applicant had earlier pleaded guilty to the offences. He was sentenced for each offence to a minimum term of 2 years imprisonment to commence on 4 November 1999 and to expire on 3 November 2001. An additional term of 8 months was imposed to expire on 3 July 2002. All sentences are being served concurrently.
3    The sentencing judge accepted that the applicant has no prior convictions and was rehabilitated when he was sentenced. The most recent of the offences had occurred about 18 years earlier. No reference was made to the maximum penalty which applied when the offences were committed and, so far as his sentencing remarks indicated, his Honour gave no consideration to a finding of special circumstances and a consequent variation of the usual proportion between the minimum and additional terms. When those omissions are taken in conjunction with the other circumstances favourable to the applicant which are mentioned by Howie J and the severity of the sentences which were imposed on the applicant, I am satisfied that the sentencing discretion miscarried. 4    That being so, it is necessary for this Court to re-sentence the applicant. I agree with the sentences proposed by Howie J and with his Honour’s reasons. 5    I agree with the orders proposed by Howie J. 6    WHEALY J: On 12 April 1999 the applicant was indicted on four charges of indecent assault on the one complainant. He pleaded guilty to each of those charges. The applicant was sentenced by his Honour Judge J. B. Phelan DCJ on 11 November 1999. 7    With respect to each matter, the applicant was sentenced to a minimum term of two years imprisonment to commence on 4 November 1999 and to expire on 3 November 2001. An additional term of eight months was imposed to expire on 3 July 2002. All sentences were to be served concurrently. 8    The events which were the subject of the charge took place between 1966 and 1971. The victim was aged between nine and about fifteen. The applicant would have been somewhere between 26 and 31 years of age. The complainant and the applicant lived next door to each other. The first offence occurred in circumstances where the applicant invited the complainant to come and play with a train set in his house. On this occasion the complainant was enticed to masturbate the prisoner. The second offence took place on a boating trip to Rabbit Island just off Port Kembla. Again the applicant enticed two children including the victim to masturbate him. The third charge relates to the prisoner parking his car at Cowper Street and forcing the victim to masturbate him. The final charge relates to a camping incident at the Blue Lagoon in the Gosford area. On this occasion the applicant removed his pants and placed his penis between the child’s buttocks in a backward and forward motion until he ejaculated. 9    The applicant had no prior criminal record. His history, as it appeared in the pre-sentence report, showed that he had grown up in Port Kembla. He had a stable upbringing and regular schooling. He completed a trade course as a boilermaker and also obtained a Greenkeeping Certificate. He worked as a golf course greenkeeper between 1961 and 1967 and thereafter as a Boilermaker with BHP for 30 years until his retirement. The applicant married at age 36 and had a daughter. 10    In evidence given before the sentencing judge, the applicant had said that he had no sex education when he was younger and he did not know that his actions towards the complainant were wrong. His Honour did not accept the prisoner’s claim to complete ignorance of what sexual intercourse was; nor did he accept his claim that he did not know that his actions were unlawful. The sentencing judge noted that the applicant had been to normal school, had done an apprenticeship in the workplace, he had been connected with the Surf Club for some time, and he had led a life which could be described as outgoing in which he mixed regularly with other people. In those circumstances, the sentencing Judge said he was unable to accept the applicant’s assertions to their full extent. His Honour took into account and paid considerable attention to the report of Dr Strum, a forensic psychiatrist. 11    Objectively, these were serious offences committed in a position of semi-trust. The applicant regarded the complainant as a little brother. The complainant was quite young. The four offences occurred over a lengthy period of time; and it was accepted they were not isolated offences during this time. His Honour however, took the view that he should apply a significant discount for the guilty plea which had been made in relation to the charges. Secondly, his Honour accepted that the applicant was a person who was “rehabilitated”. He also took into account that the applicant was remorseful and, despite his misgivings, he accepted that the applicant was, in part, ignorant of the wrongfulness of his actions towards the victim. He made no finding of special circumstances. He proceeded to impose the sentences I have set out above, indicating that they should be served concurrently. His Honour back dated the commencement of the sentence to the time the applicant went into custody on 4 November 1999. 12    There are six grounds of appeal. I will deal with each separately.

Ground 1 - The Sentencing Judge erred in sentencing the applicant on the basis that the events took place between 1966 and 1971.

13    The sentencing Judge had stated that “the events took place between 1966 and 1971 when the victim was aged between nine and about fifteen”. This range of years represents, it was argued, the outer extremity of the offending period, that is a period of five years. It was submitted that, given the range of dates involved in each count, the period during which the offences occurred could not be established beyond reasonable doubt to be much more than the minimum period established by the charges, that is, a period of about three years. Equally, the youth of the complainant was an aggravating factor. While it was conceded the victim would have been fourteen at the time of the last count, and not fifteen as stated by the sentencing Judge, it was argued that it could not be established beyond reasonable doubt that the victim was as young as nine when the first offence occurred. Consequently, the applicant was entitled to be sentenced on the basis that the offences occurred when the victim was between the age of at least eleven and fourteen. 14    In my opinion, there is no substance to this ground. The statement made by the sentencing Judge was correct. It accorded with the counts in the indictment to which the applicant pleaded guilty. It accorded also with the statements in the agreed facts. His Honour sought and received a specific assurance about the facts in the agreed statement. A fair reading of his Honour’s decision shows that he did not say the complainant was aged nine at the time of the first offence. Moreover, I am not satisfied that it is possible to discern that the sentence would have been any different, in terms of its assessment of the applicant’s criminality, had the trial Judge been required to determine an appropriate sentence for four individual offences as part of a pattern of behaviour over three years rather than five years.

Ground 2 - The applicant was not given sufficient credit for his plea.

15    The sentencing judge said this at p 8: -

“The prisoner has pleaded guilty to these serious charges. The plea must attract a significant discount and I say that for very good reason that these Courts are only too familiar with men charged with sexual offences against children, often pleading not guilty, thereby exposing the allegations of the child to claims of invention, exposing them to the ordeal of cross-examination and often exposing them to the humiliation of a verdict of acquittal in circumstances where the jury is faced with the difficulty of having the word of an adult against that of the word of a child. So that the Courts are keen to stress to people such as the prisoner that they will attract significant discounts in the face of a plea of guilty. It also tends to indicate some degree of remorse and recognition of wrongness.”

16    In the light of these remarks, it is, in my opinion, impossible for the applicant to maintain that due recognition had not been given to the utilitarian value of the plea. His Honour made specific reference to the situation encountered in child abuse cases where pleas of not guilty are made. He referred to the ordeal of cross-examination perpetuated on children required to give evidence, including claims of invention. He referred to the prospect of exposure to the humiliation of a verdict of acquittal. His Honour’s remarks plainly show that he was conscious of the value of a plea on utilitarian grounds and that he intended to give a significant discount in the light of the plea of guilty for that reason. His Honour’s additional reference to a degree of remorse and recognition of the wrongness involved on the part of the applicant shows that he was drawing a clear distinction between matters of that kind and the utilitarian value of the plea. 17    As to the argument that the applicant had made admissions in the ERISP, it is necessary to make this observation: although the applicant admitted in general terms that he engaged in mutual masturbation with the complainant, he did not, in the interview, make admissions in respect of the allegations contained in the various counts in the indictment. Indeed, he specifically denied, in a number of instances that those incidents had occurred. The sentencing judge mentioned his disquiet arising out of the disparity between the statements made in the ERISP and the necessary admissions constituted by the plea of guilty. At the sentence hearing the applicant, through his counsel, indicated there was now no dispute about the statement of facts. His Honour noted that the applicant had been at pains to “read down the effect of what he had done” and he noted also that “the prisoner has remained ambivalent and has failed to face up to the reality of his problem”. 18    There is no substance to ground 2.

Ground 3 - The Sentencing Judge failed to take into account the fact that the sentence was likely to be served on protection

19    This ground must also fail. His Honour was an experienced Judge of the District Court. It could not be suggested that he would have been unaware of the fact that, having regard to the particular offences to which the applicant had pleaded guilty, there would be a high likelihood of his having to serve his time in protective custody. It may well have been that a submission was made on the applicant’s behalf that he should be classified as a protected prisoner. Unfortunately, the submissions on penalty are not transcribed. Be that as it may, his Honour made a specific recommendation that the prisoner be classified as a protected prisoner. 20    It is simply not open to the applicant to argue in this appeal that his Honour has not taken the likelihood of protective custody into account in determining the length of the sentence.

Ground 4 - The applicant was sentenced in accordance with current sentencing attitudes and principles rather than those at the time of sentence

21 The submission as originally framed under this ground was a simple one. It was to this effect: sentencing statistics provided by the Judicial Commission reveal that the sentences imposed on the applicant are consistent, so it was said, with later sentencing practices for offences under s 61E(1) of the Crimes Act 1900 (which was enacted in 1981) and s 61M(1) of the Crimes Act (which was enacted in 1991). Maximum penalties were increased by these changes to the legislation to six and seven years respectively. 22    In support of this submission it was argued that the increases in penalty for the type of behaviour the applicant was charged with have been followed by a corresponding strengthening of judicial attitudes, reflected in the statistics. Reliance was placed upon the principle stated in Regina v Shore (1992) 66 A Crim R 37 at 42. This principle requires that an offender be sentenced in accordance with the range of sentences imposed at the time when the offence was committed (see also Regina v Watson (1999 NSWCCA 227 (unreported) 12 August 1999). 23    Although the principle stated in Shore is clear, its application in any particular appeal is often a difficult matter. First, there is a need to have a clear picture as to the range of penalties imposed at the earlier point of time. In Shore’s case for example, there was an extensive analysis of over twenty cases of importation of drugs (see Schedule, Shore p 49). Secondly, the perceived difference between the range of sentences disclosed at the earlier point of time and the sentence imposed by the sentencing judge may reveal a discrepancy. Nevertheless it may be one of not so high a kind that the appellate court should interfere (Shore p 43). 24    Watson was a case where the sentences were manifestly and plainly excessive. In that case, the sentencing judge had accumulated the sentences in relation to a number of counts in a manner which resulted in an effective head sentence of six years with an additional term of two years. The maximum penalty for the offence was six years (s 76 of the Crimes Act). 25    There is however, an evidentiary gap in the applicant’s submission. No material has been placed before this Court to establish a pattern of sentencing during the periods when the subject offences occurred. It is impossible to detect the asserted error on a statistical basis in the absence of such material. There is simply no reliable material to indicate that, had he been sentenced at the time the offences were committed, he would have been treated more favourably than he was. 26    The applicant, however, filed further written submissions which raised other matters under this ground. 27    Firstly, the applicant argues that the sentencing Judge should have selected the sentence that would have been imposed under the previous sentencing system, that is the system in force in the 1970’s, and then deduct from that sentence the remissions the offender might have been expected to earn. Secondly, as an alternative, this Court should, in applying the principle that the applicant was entitled to be sentenced in accordance with sentencing practices at the time, take account of the fact that sentences at the time were, in the ordinary course of events, affected by remissions. The essence of the applicant’s submission is that the applicant ought not to have been prejudiced as a result of the thirty year delay in his matter coming before the sentencing Court. Had he been sentenced in the 1971, the Court would have taken into account not only the then prevailing maximum penalty for the offence but also the existing system of remissions. In effect, it is submitted that Phelan DCJ should have done the same. 28    In order to assess the strength of these submissions, it is necessary to re-state a number of well established general principles.

1. In Regina v Maclay (1990) 19 NSWLR 112 this Court definitively established the duty of a sentencing Judge fixing a minimum term under the then newly introduced Sentencing Act 1989 . The Court stated the duty in the following terms: -

“Giving appropriate weight to well established principles of sentencing, including those which require him to pay due regard to the maximum penalty provided by statute for the offence in question, the gravity of the objective features of the case, and all relevant subjective considerations relating to the offender, he is to determine what is an appropriate term during which the offender is to remain in custody before being eligible to be released on parole.”


2. The Court pointed out in specific terms that the primary task of sentencing Judges is to apply the new sentencing system according to the terms of the statute, paying due difference to established general principles of sentencing. The Court gave a cautionary reminder that the primary function of sentencing Judges under the new system is not to replicate what would have been done under the old system (126B).

3. The Court specifically rejected the general argument urged upon it that offenders who had committed offences prior to the commencement of the Sentencing Act 1989 , but who came to be sentenced after that date, were entitled to ask the sentencing Court to take into account the remission system on the basis of fairness to the offender. This argument had focused on the transitional provisions of the 1989 Act. Clause 4 of Schedule 2 of the Saving and Transitional Provisions effected a re-determination of a non-parole period or non probation period within the meaning of the former Act. The re-determination took into account any existing remissions to which the prisoner was entitled and any future remissions that the prisoner might have become entitled to, had the provisions enforce immediately before the repeal continued enforce.

4. The Court rejected this argument as a general proposition based on fairness. At 127 line C the Court said: -

“The first difficulty with the argument is that it appears to create, between the general run of cases which will fall to be dealt with under the new legislation, and the particular cases covered by the transitional provisions of that legislation, an intermediatory category of indeterminate extent. The legislature has defined the cases to which the transitional provisions apply. The present is not such a case. Furthermore, it is extremely difficult to give practical content to the consideration of “fairness” called in aid in support of the argument.”


5. The Court did not rule out the possibility that, in a particular case, there might arise the need for a result of the kind for which the appellant had contended in Maclay . Their Honours gave but one example, namely, the situation where a person’s co-offender had been sentenced under the old legislation. This might constitute an example, the Court said, where well established principles of sentencing, having their origin in considerations of fairness, could produce a result along the lines of the argument which they rejected as being of general application.

6. In Radenkovic v The Queen (1990) 170 CLR 623 the High Court of Australia approved the approach taken by this Court in Regina v T (1990) 47 A Crim R 29. This approach had been applied by this Court in a number of later decisions. The joint judgment of Mason CJ and McHugh J noted that the “ T ” approach had been adopted by the Court of Criminal Appeal in a long line of cases; that the approach applied the Sentencing Act 1989 in a manner favourable to convicted persons; that it gave effect to a sensible and commonsense approach yielding administrative and practical advantages; and it was, their Honours said, “a legitimate, indeed, the only legitimate interpretation that can be applied to the transitional provisions which appear, when viewed in their entirety, not to address this specific question, thereby creating an ambiguity”. The “ T ” approach may be stated in the following terms: when a Court of Criminal Appeal is called upon to re-sentence an offender, in circumstances where it has quashed the sentence initially imposed, the convicted person is entitled to be re-sentenced according to the laws as they stood at the time when he was initially sentenced. As the convicted person had an entitlement, when he was sentenced by the sentencing Judge, to a sentence imposed in conformity with the requirements of the law as it then stood, he should not be denied that entitlement, when he became the subject of a re-sentence, simply because the sentencing Judge had made a mistake, whether that mistake resulted in a sentence that was too harsh or too lenient.

Their Honours found support for this approach in considerations of justice and equity; in the plain content of the legislation as a whole, and in ss 30(1)(b) and (c) and s 55 of the Interpretation Act 1987 NSW .

Application of the Principles

29    When these principles are applied to the present application, I am not satisfied that the applicant has demonstrated any error on the part of the sentencing Judge. This is so for three reasons. 30    First, the clear intention of the Sentencing Act 1989 and its transitional provisions was that it, and not the previous legislation (which included the remission system) was to apply and, subject to general principles of sentencing, determine the sentencing process where an offender came before a court for the first time after September 1989. The Court of Criminal Appeal’s practice of re-sentencing an offender who had been sentenced before September 1989 had no application to the present applicant’s situation. 31    As a consequence, the applicant fell to be sentenced before Phelan DCJ under a statutory regime which had intentionally brought the remissions system to an end. The duty of the sentencing Judge was, giving appropriate weight to well established sentencing principles, to determine, if he were of the view that a custodial sentence should be imposed, an appropriate term during which the applicant should remain in custody before being eligible to be released on parole. This was the precise task attended to by his Honour in the present case. 32    Secondly, Maclay did not establish, as a matter of principle, a class of cases which might be regarded as an exception to the proposition for which it stood as an authority. At p 127 line B the Court said: -

“For reasons which will appear below we would not entirely rule out the possibility that an argument to like effect might, depending upon the facts and circumstances of an individual case, be one which should prevail. We are, however, unable to accept the argument either in its generality or in its application to the facts and circumstances of this particular case.”

33    Later, at p 127 line D the Court addressed the matter as follows: -

“There may be particular cases, of which the position of a person whose co-offender had been sentenced under the old legislation might constitute an example, where well established principles of sentencing which have their origins in consideration of fairness could produce a result along the lines of that for which the appellant contends in the present case.”

34    These guarded observations did not enshrine a category of exception. They did not entirely close the gate against an exceptional case that might arise in particular circumstances where considerations of fairness, enshrined in well established principles of sentencing, required an adjusted result. The one example given in Maclay was a parity situation where a co-offender had been sentenced under the old legislation. The argument advanced in the present application, based as it is on the sole fact that the offences occurred many years ago, would, if accepted, negate the general proposition established by Maclay and frustrate the general legislative intention of the Sentencing Act 1989 and its transitional provisions. 35    Thirdly, the present case is one where the delay arose out of the failure on the part of the sexually abused complainant to bring the matters to the attention of the police for a period of many years. It is not uncommon where a very young or vulnerable person is abused by an older person that the complaint does not emerge until many years later. It is the very nature of the relationship that, in many cases, leads to this repression and inhibition. No doubt, the present applicant hoped the complainant’s story would never emerge out of the past. The applicant himself never took any steps to bring to the attention of the police the sorry tale of indecent assault he had visited on his young victim. There is absolutely no merit in any suggestion that the applicant is entitled to call in aid an argument based on delay to warrant leniency in the circumstances of the present appeal. 36    Finally, the applicant called in aid Regina v Theobald (Unreported, NSWCCA 22 July 1994). This decision was that of a two member Court of Criminal Appeal and did not establish any new matter of general principle. Moreover, the wholly unusual set of circumstances in that case bears no relation to the present situation. In that case, the applicant had sought to be dealt with prior to the introduction of the Sentencing Act 1989 and, through no fault of his own, but because of a series of administrative and forensic mishaps, had been prevented from succeeding in this endeavour. There is no similarity between the applicant’s situation in the present case and the circumstances described in Theobald. 37    This ground must fail.

Ground 5 - The sentencing judge erred in failing to find special circumstances

38    The applicant has submitted that there were a number of features which justified a finding of special circumstances and a consequent variation of the usual proportion between the minimum and additional terms. They were the age of the applicant, the fact that it was his first time in prison, the fact that the sentences were likely to be served in protective custody and the need for rehabilitation. It was pointed out that no reasons were given for the failure to find special circumstances. 39    The applicant’s counsel placed reliance on Regina v Bo Too (unreported, NSWCCA 16 July 1992) where Hunt CJ at CL said at 3.1: -

“Where the evidence discloses the existence of material which (if accepted) could amount to special circumstances within the meaning of s 5(2), but the sentencing judge does not vary the one third proportion required by that sub-section, he or she would usually be expected to explain why. The absence of such an explanation may lead to the conclusion that no consideration was in fact given to whether that proportion should be varied.”

40    In Bo Too, however, the trial judge did not advert to the question of “special circumstances” at all. By way of contrast, the sentencing Judge in the present case said, in terms, that he did not find that there were special circumstances. At the foot of p 8 his Honour said: -

“The prisoner comes before the Court as a person with no prior convictions and, in the absence of any evidence of any other offences, it must be accepted by the Court that he is now rehabilitated.”

41    Fairly read, this statement, admittedly brief, provides the basis on which his Honour made the finding that there were no special circumstances. As I read his decision, it seems to me quite clear that his Honour would have been aware that the applicant faced prison for the first time; his Honour was plainly aware that the sentence would be served, in all likelihood, in protective custody. His Honour had, after all, recommended that the prisoner be classified in that way. On the other hand, his Honour found that the prisoner was “rehabilitated”. It seems to me, reading his reasons fairly, that he balanced these considerations in the finding he made regarding “special circumstances”. The principal factor was the rehabilitation of the prisoner which had already been achieved. The pre-sentence report made it clear, as did Dr Strum’s report, that neither supervision of this applicant nor an attendance centre were warranted. Consequently, there was no need whatsoever to extend the period during which the applicant would be at liberty on parole. 42    A secondary argument in relation to this ground was raised in the supplementary submissions dated 7 November 2000. This submission was to the effect that his Honour erred in not sentencing in accordance with judicial attitudes at the time of the offence. Those attitudes, so the argument ran, required, in the ordinary case, a variation in the relationship between the non-parole period and the total sentence. Therefore, the sentencing judge in the instant case was in error in not finding special circumstances. (R v Combo (1971) 1 NSWLR 703; R v Moffitt (1990) 49 A Crim R 20 at 38). 43 The answer to this submission is the matter already discussed in relation to Ground 4. The introduction of the Sentencing Act 1989 required the sentencing Judge, after allowing for and giving weight to well established principles of sentencing, to determine an appropriate term during which the offender was to remain in custody before being eligible to be released on parole (Maclay (supra) at p 123A). Secondly, the Judge was required to set an additional term during which the offender might be released to parole. The statute itself required that the additional term must not exceed one third of the minimum term, unless the Court decided there were special circumstances. For the reasons already outlined, these statutory obligations applied to the statutory exercise undertaken by Phelan DCJ in relation to these offences, notwithstanding the offences had been committed many years earlier. 44    Thus ground is not established.

Ground 6 - Failure to have regard to the maximum penalty

45 This is a new ground raised for the first time in the submissions of 7 November 2000. 46 Section 81 of the Crimes Act 1900 was repealed by the Crimes (Amendment) Act 1984. Its repeal commenced on 8 June 1984. Prior to its repeal, it was in the following terms: -

“81. Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.”

47 It is correct that his Honour did not mention the maximum penalty in the reasons for sentence. In my opinion, it is inconceivable however, that his Honour would not have been aware of the maximum penalty at the time he sentenced the applicant. The indictment and the fact sheet each contained a reference to s 81 of the Crimes Act. I have already mentioned, in a different context, the fact that the penalty submissions were not transcribed. It is highly likely that a reference to the maximum penalty would have been made in the course of these submissions. This matter appears to have been raised as a new ground of appeal only after discussion with her Honour Justice Simpson, when the matter was before a two member bench on 6 October 2000. That the point arose in this way is a recognition of how little substance the ground has. 48    The failure to mention the maximum penalty, although a normally desirable feature in reasons for sentence, does not constitute an error of law. 49    This ground must also fail.

The Sentence was Manifestly Excessive

50    It was put to counsel for the applicant during the course of argument that, despite the varied ways in which the grounds of appeal had been expressed, the applicant’s strongest argument might reside in a submission, simply stated, that the sentence was excessive. Despite the force with which all the other arguments were put, counsel for the applicant ultimately embraced the suggestion put to him and made such a submission. For my part, I have had considerable reservation in accepting that the sentence was manifestly excessive. There are a number of reasons for this reservation. First, it is important to recall that a submission that a sentence is excessive or inadequate derives from the third kind of error identified in House v The King (1936) 55 CLR 499 at 505. For an error of this kind to occur it must appear, upon the facts, that the discretionary exercise is unreasonable or plainly unjust so as to lead an appellate court to infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. The basis of the review of the discretion is the ground that a substantial wrong has in fact occurred. 51 The joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) HCA 54 at paras (3-6) is a reminder that this is the basis on which an appellate court may interfere both in Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness. 52 Secondly, it is always important for an appellate court dealing with an appeal of the present kind to bear in mind that the court should not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. As has been said, “the discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice”: Lowndes v The Queen (1999) 195 CLR 665 at 671-672. 53 In the present case, argument that the sentence is manifestly excessive may be approached in one of two ways. The first is that, making due allowance for the seriousness of the offences, the personal circumstances of the applicant including his age and acknowledged rehabilitation, and the period which has elapsed since the offences were committed, the sentence should have been at the middle or lower end of the scale. The second approach is that the sentence might be regarded as excessive because his Honour did not, in express terms, categorise the status of the applicant’s sexual activities in the hierarchy of delinquent sexual activity circumscribed by s 81 of the Crimes Act, nor did he analyse expressly his perception as to where these offences stood in that hierarchy, having regard to the maximum penalty then available. In other words, it might be concluded that the sentence was unreasonably at the higher end of the range because of the absence of a reasoned analysis of the nature of the sexual offences which occurred as against the range of other sexual activity prohibited by the section. 54 It will be seen that the first approach allows for a conclusion that the sentence should have been at the middle or lower end of the range. The second approach allows for a conclusion that the sentence might be, unreasonably, at the higher end of the range. Where then does the sentence stand in the range? 55 In my opinion, three points may be made. First, the statistical material for sentences imposed in the years 1993 to 1999 for s 81 offenders enables it to be said that the present sentence stands towards the higher end of sentences imposed for this offence in that period. Secondly, there are no statistics available to show the range of sentences which were imposed for similar offences in the period between 1966 and 1976. Thirdly, in percentage terms, the term of the present sentences represents a sentence which is a little over 50% of the maximum penalty. 56 It was not suggested by counsel for the applicant, as part of any argument presented during the appeal, that this was a case where anything other than a full time custodial sentence was required. The ultimate question then focuses on whether the sentence imposed, admittedly one at the higher end of the range, is so high as to be manifestly excessive. 57 The problem with the first approach, in my opinion, is that it is one largely based on intuition; and it is, moreover, one which does not, in my opinion, give sufficient weight to the regard the sentencing Judge was entitled to, and did take, to the facts of the matter before him. The problem with the second approach is that, whilst it quite accurately concludes that his Honour did not analyse the offences in the suggested manner, it also does not make sufficient allowance for the approach which his Honour did take, and in my opinion was entitled to take, to the facts before him. As I have already explained, there could be no doubt that his Honour was aware of the maximum penalty applicable to s 81 offences; nor could it be suggested that his Honour was unaware of the broad range of prohibited sexual activity covered by the section. 58 His Honour found, in terms, that these were “serious” offences. The four offences charged were conceded to be representative offences for a period of time that had as its outer limits the years 1966 and 1971. The description of the relationship between the young boy and the older man and the nature of the indecency, described as it was by the complainant in his statement to the police on 10 July 1997, demonstrated that these were not isolated incidents and that indeed, they occurred on a very regular basis. The applicant treated the complainant as his vehicle, in effect, for “masturbation on demand”. The applicant was not entitled to leniency in that regard (R v JCW [2000] NSWCCA 209 at paras 30-38). The last offence which occurred when the complainant was fourteen or fifteen years of age was a particularly serious indecent assault. 59 These days the community has come to learn through the Courts, and the wider dissemination of information through the media, that thirty years ago and longer, quite disgraceful instances of sexual misconduct were not infrequently perpetrated by older men on young children and teenagers. The nature and extent of these types of sexual behaviour have become much more apparent over the last decade. It is important, in my opinion, that Courts, dealing with these types of older offences, do not become desensitised to descriptions of serious sexual abuse merely because, serious though they are, they are not as serious as sexual abuse of a much worse kind now known to have occurred. The irony of the submission in this case is that the applicant wishes this Court to accept an argument that Phelan DCJ fell into error by not applying sentencing standards of the 1970’s. As the presiding Judge pointed out in argument, a Judge in the early 1970’s would, more likely than not, have refused to accept that the particular offences which occurred in this case were offences at the lower end of the range or were offences which should attract a minimum penalty. Sentencing attitudes in those years would have plainly regarded the applicant’s conduct as a serious departure from acceptable community standards. 60 The sentence imposed by Phelan DCJ reflected this recognition of the appellant’s criminality. As I read his Honour’s decision, this was the reason the sentence was chosen at the level it was. I am unable to agree that the “labelling” of offences is necessarily a satisfactory method of assessing culpability in cases of this kind. It is no doubt relevant to note that such conduct might extend to “fellatio” and “digital penetration” and be classified accordingly. The assessment of culpability, however, will require, as it did here, a broader approach which takes into account all the circumstances. The assessment of the subjective features was, in the same way, a matter to be considered by the sentencing Judge and given appropriate weight. I am unable to say that the ultimate sentencing discretion made by the sentencing Judge did not give appropriate weight to those circumstances. The sentence reflected the objective gravity of the offences, as his Honour saw them. I am unable to say that his Honour’s assessment demonstrated appellable error. Had I been the sentencing Judge, I would, perhaps, have concluded that a total sentence in the order of two years would have been sufficient. This difference between my possible approach and that that of the sentencing Judge reflects, in my opinion, no more than the individual reaction of different Judges to a sentencing discretion involving the same factual situation. Such differences should not lead to the re-adjustment of sentences where no error of principle has been shown to exist. 61 In the end I have come to the conclusion that the sentences imposed by his Honour, although at the higher end of the scale, were not manifestly excessive. For the reasons I have explained, the sentences were not unreasonable or plainly unjust so as to satisfy me that a substantial wrong has occurred. 62 I would grant leave to appeal but dismiss the appeal. 63 HOWIE J: have had the benefit of reading in draft form the judgment of Whealy J. I adopt his statement of the facts and material before the sentencing judge and the basis upon which this Court has been asked to intervene. I agree that there is no merit in the particular grounds advanced on behalf of the applicant. However, I have reached a different view in respect of the general complaint that the sentence is manifestly excessive and, therefore, the disposition of the appeal. However, before dealing with that matter I wish to say something about the fourth ground of appeal. 64 It was submitted that the applicant was sentenced in accordance with current sentencing attitudes and principles rather than those applicable at the time of sentence. As Whealy J points out, there was no material presented to the Court to substantiate the claim that there was a difference between the way offences under s 81 were dealt with by the courts in the 1970s and how they are dealt with at the present time. Nor was there any material to substantiate the argument that courts generally now take a more severe attitude in sentencing child sexual assault offences than did courts at the time when the offender was committing the offences for which he was sentenced by Judge Phelan. 65 It may be the case that crimes similar to those committed by the applicant are now dealt with more harshly than they were at the time when the applicant committed his offences. If so, this would probably be a reflection of a change in the legislature’s attitude to such conduct evidenced by a change in the nature of the offence proscribing that conduct and an increase in the maximum penalty applicable to such an offence; Sha (1988) 38 A Crim R 334 at 335. 66 Where there has been a change in the policy of the legislature to a particular type of criminal conduct, judicial attitudes to that conduct must respect the change of policy and reflect it in the sentences imposed on those who commit offences under the new statutory regime; R v Peel [1971] 1 NSWLR 247. But, notwithstanding changes in the structure and nature of offences over time, the fundamental approach adopted by the courts in determining the appropriate sentence that will reflect the legislature’s policy remains the same. 67 Firstly, the court must have regard to the maximum penalty for the offence at the time when the crime was committed. This will indicate the policy of the legislature at the time the offence was committed: Oliver (1980) 7 A Crim R 174. It will prescribe the limit of the court’s discretion, as the maximum penalty is intended for cases falling within the worst category of cases for which the penalty is prescribed: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; Ibbs v The Queen (1987) 163 CLR 447 at 451. Prima facie the maximum penalty indicates the seriousness of the offence: Gilson v The Queen (1991) 172 CLR 353 at 364. 68 Secondly, the court must consider where in the range of the conduct covered by the statutory offence, the particular criminal conduct committed by the offender falls: Baumer v The Queen (1988) 166 CLR 51 at 57; Ibbs, above, at 452. This will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie. 69 A pattern of sentencing, if available, will also indicate the range of appropriate sentence for the type of conduct under consideration. But this pattern will reflect “the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature” : Oliver , above, at 177 70    The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. 71 When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time. 72 In the present case the sentencing judge neither referred to the maximum penalty current at the time of the offences or the nature of the conduct which came within the scope of the offence with which the applicant was charged. Those two omissions would not normally indicate error on the part of the sentencing judge. But in a case such as this, where the statutory offence and the applicable maximum penalty relevant to the type of criminal conduct in which the offender engaged, had changed significantly since the date of offending, I believe that the sentencing judge should make reference to these two matters which were fundamental to a proper exercise of his sentencing discretion. 73 I believe that the failure of the sentencing judge to mention these two factors in this case is indicative of error, even if it were not itself an error sufficient to permit this court to interfere in the sentence imposed. This brings me to a consideration of whether the sentence was manifestly excessive. I acknowledge the force of Whealy J’s comments on the limitation of this court’s power to intervene in the exercise of a sentencing judge’s discretion. But I am firmly of the view that his Honour’s sentencing discretion must have miscarried in light of the sentence imposed upon the applicant. 74 At the time the applicant committed these offences the maximum penalty prescribed was 5 years penal servitude. As Whealy J points out, the maximum penalty for offences which would now apply to the type of conduct in which the applicant engaged is 7 years. Further, the range of conduct embraced by s 81 was wider than that covered by offences dealing with acts of indecency of the nature committed by the applicant under more recent statutory regimes. In my view the conduct committed by the applicant falls far short of the most serious type of conduct covered by s 81. 75 The available statistical material confirms my immediate impression that the overall sentence imposed upon the applicant is too high having regard to the nature of the conduct and the period of time which had elapsed since the commission of the offences. The sentence imposed falls in the upper range of sentences for offences under s 81 notwithstanding that I would expect sentences in this range to involve more serious conduct than that committed by the applicant. For example, offences including some form of penetration or offences by persons in positions of trust. On the statistical material provided to the court there was only one case in which an offender, who pleaded guilty, was sentenced to a longer minimum term than that which was imposed upon the applicant. 76 Further, the statistical information in relation to sentences imposed for offences contrary to s 61M(1) of the Crimes Act and which would now embrace conduct of a similar nature to that committed by the applicant, shows that again the sentence imposed upon the applicant is in the upper range. However, the maximum penalty prescribed under that section is 7 years and it should be expected that higher penalties would be imposed for offences involving the same type of conduct as that committed by the applicant when sentenced under that section. 77 Notwithstanding the young age of the complainant when the conduct first commenced, the period over which the offences occurred, and the fact that the applicant stood to be sentenced on the basis that the matters before the court were representative counts, the sentence imposed was in my view manifestly excessive having regard to the pleas of guilty and the delay between the commission of the offences and sentencing. 78 Although less significance is normally given to the impact of extensive delay in sentencing for child sexual assault offences, each case has to be considered according to its own facts and circumstances. There was a very gross delay in raising complaint. This was not a case where the delay can be attributed to the relationship between the applicant and the complainant, such as is the situation with members of the family or perhaps even teachers and pupils. The complainant was apparently significantly affected by seeing the applicant with young boys, and determined to have counselling and to report the matter to police. However, in the period of time between the commission of the offences and the complaint the applicant had married, brought up a child of his own, and worked until retirement. There was no further offending and the judge accepted that he was rehabilitated. 79 The sentencing judge spent much of his remarks dealing with the attitude of the applicant to the offences he had committed and which was disclosed both in his evidence in the sentencing proceedings and in a pre-sentence report. It can be acknowledged that there was a significant attempt by the applicant to excuse or minimise his criminal conduct. His Honour was rightly unimpressed by the applicant’s assertion that he did not understand the wrongfulness of what he did. But in light of the pleas of guilty and his Honour’s finding that the applicant was rehabilitated, this equivocation on the part of the applicant about his responsibility for his criminal conduct had less importance than might have been the case if the court had been concerned about the applicant’s prospects of rehabilitation. In any event his Honour found that the applicant was remorseful. 80 I am not unmindful of the effects of the applicant’s crimes upon the victim and the anguish that he must have suffered which caused him so long after the offences to seek counselling and to report the matter to police. But the applicant is principally to be punished for what he did and having due regard to the fact that, for whatever reason, the applicant chose not to complain about the matter for over 25 years. 81 In my opinion the appeal should be allowed and the sentence quashed. In a case such as this where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the court. 82 For the reasons given by Whealy J, the sentencing judge was right to find that there no special circumstances in this case. The applicant has now served a period of over twelve months in custody on protection. I believe that this is a sufficient period of imprisonment in the all the circumstances of this particular case and a sentence should be imposed which would bring about his immediate release. The sentence I propose is roughly in accordance with the proportions required by the Sentencing (Criminal Procedure Act) in the absence of special circumstances. 83 I would grant leave to appeal and allow the appeal. The sentences imposed upon the applicant should be quashed. In respect of each offence the applicant should be sentenced to 18 months imprisonment with a non parole period of 13 months 10 days. The sentence is to commence on 5 November 1999 and the non parole period is to expire on 14 December 2000 the date upon which the applicant is to be released to parole.

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