R v P

R v P
[2003] SASC 428
Court of Criminal Appeal:
Coram: Perry, Mullighan and Besanko JJ

PERRY J. The appellant appeals by leave against the sentence imposed upon him following his plea of guilty in the District Court to four counts of unlawful sexual intercourse and two counts of indecent assault. The sentence under appeal is that the appellant be imprisoned for 9 years with a non-parole period of 3 years and 6 months, both commencing from the date upon which he was sentenced, that is, 10 June 2003.
Background circumstances
The appellant is aged 45 years. He migrated with his family from the United Kingdom in 1969 at the age of 10 years.
He married the victim’s mother in 1977. There were four children of the marriage: three daughters and a son.
The offences in question were committed upon two of the daughters, whom for convenience I will refer to as S and A.
The charges in question were representative of a course of conduct on the part of the appellant against both daughters while they were aged between 8 and 12 years.
In the case of S, the appellant pleaded guilty to one count of indecent assault, alleged to have been committed between 9 November 1990 and 8 November 1992. That count was representative of a course of conduct during which time the appellant touched S on and around the vagina, after inserting his hand beneath her pyjamas while she was in bed at night. It was alleged that this occurred as often as three to four times a week.
On a separate count (count 5), the appellant pleaded guilty to unlawful sexual intercourse with S by inserting his finger into her vagina. This occurred on one occasion only.
With respect to A, the appellant pleaded guilty to three counts of unlawful sexual intercourse and one count of indecent assault, all alleged to have occurred between 26 May 1988 and 25 May 1989. Again, these were representative counts. It appears that the appellant frequently inserted his finger into her vagina, sometimes but not always while she was in bed, and otherwise touched her in and around her vagina and breasts.
The sentencing judge in his remarks on sentence referred also to an act of fellatio involving A, but this was an error.
The appellant’s offending came to light in 1992 when S told a friend what had been happening to her, and the friend’s mother reported it to the appellant’s wife, who confronted the appellant.
The appellant admitted to his conduct, moved out of the house and consulted Crisis Care, who in turn referred him to an organisation which conducts counselling and therapy sessions for sexual offenders, known as the Sexual Offenders Treatment Program (“SOTAP”). The appellant embarked on a long series of counselling sessions with SOTAP. Between 1993 and 1997 he completed in excess of 200 sessions, and according to a report from a psychologist, Dr Jack White, which was before the sentencing judge, the SOTAP therapy records indicated “positive participation”.
While the appellant was participating in the SOTAP program he admitted his offending with respect to A, and also an indecent assault on his third daughter, whom I will call K.
The police became involved, and the appellant was interviewed sometime in 1994. According to the appellant’s counsel, Mr Cuthbertson, who appeared on the hearing of the appeal, at that time the appellant made a clean breast of his offending with respect to all three daughters. For some reason, as to which no satisfactory explanation has been given, he was at that time charged only with respect to the indecent assault involving K.
According to the appellant’s antecedent report, the date of the offending with respect to K is shown as 1 November 1992. On 10 October 1995, he was sentenced in the Christies Beach Magistrates Court for the offence against K. He was given a sentence of 6 weeks imprisonment, suspended on a bond to be of good behaviour for 2 years.
The appellant was not charged with respect to the offences now in question until 2002. As I have observed, the delay in bringing charges with respect to S and A is unexplained.
According to Mr Petraccaro, who appeared for the DPP on the hearing of the appeal, it was never the position of A and S that they did not wish the matter to go ahead. However, it may be that for some time contact between the authorities and A was lost, and S moved interstate.
Whatever the reason for the delay, it is common ground that the delay cannot be attributed to the appellant, at least after the offending came to light in 1992.
The appellant’s relationship with the mother of the victims came to an end soon after the offences were committed, and he has since established what appears to be a stable relationship with another woman. Over the intervening period he has remained in regular employment, and has made positive efforts towards his rehabilitation by undertaking the SOTAP program.
Much detail is given in Dr White’s report as to the personal circumstances and background of the appellant. His mother was violent towards him, and he had an unhappy childhood. He suffered sexual abuse and became sexually active at an unusually early age.
Even while in a steady relationship, he has had what the psychiatrist described as “multiple illicit affairs”. Dr White was of the view, however, that he did not represent a “typical paedophile profile” but rather was “an offender who was opportunistically promiscuous against both children and adults”.
Given that the appellant has completed four years of therapy with SOTAP, Dr White considered that he would not benefit greatly from further therapy, except perhaps from some short term follow up. He expressed the view that the appellant’s “risk of offending against children in the future is small”.
The approach of the sentencing judge
The sentencing judge correctly identified the maximum sentence applicable to the various counts. The three counts (1, 3 and 4) of unlawful sexual intercourse with A, being a person then under the age of 12, attracted a maximum penalty of life imprisonment.[1] The charge of unlawful sexual intercourse involving S (count 5) attracted a maximum penalty of 7 years imprisonment, as she was just over 12 years of age on the offence date alleged in this count.[2]
[1] Criminal Law Consolidation Act (CLCA) s 49(1).
[2] CLCA, s 49(3).
As for the two counts (2 and 6) of indecent assault, the offence involving A attracted a maximum penalty of 10 years, and as against S, 8 years.[3]
[3] CLCA, s 56.
In his remarks on sentence, the sentencing judge, after referring to the appellant’s antecedents, stated that he accepted that the appellant’s action in seeking treatment and undergoing a lengthy period of counselling demonstrated “a measure of remorse” and a desire on the part of the appellant to rehabilitate himself.
He went on to note that in 1998 the appellant entered into a new relationship, and observed “... your new partner and her family are aware of these matters but continue to support you”.
He proceeded to deal with the question of delay. As to this aspect of the matter, he made the following observations:
“It was put by your counsel that the delays which have occurred in the prosecution of these matters have not been of your making and that they should serve to mitigate your penalty, particularly in light of the steps you have taken over that time to rehabilitate yourself.
Your counsel referred to the case of R v Schwabegger[4] in that respect. In that matter, the court regarded as a mitigating factor the unexplained failure of the prosecuting authority to prosecute known revenue offences.
I cannot see that decision is of particular assistance.
True it is that you admitted your offending at an early stage and I accept you will have felt stressed over the uncertainty of further prosecution, but it is plain from what your daughters S and A say, that their own delays in approaching the police are, at least in part, attributable to the suffering and damage caused by your conduct.”
[4] [1998] 4 VR 649.
The case of Schwabegger referred to by the sentencing judge involved an abalone diver who failed to disclose in his income tax returns lodged for the five-year period between 1984 and 1988, his receipt of substantial cash payments. In 1991, following an investigation by the Australian Taxation Office he agreed to pay $280,323.95 in tax and $283,532.19 in penalties.
By the time he was charged, which was in January 1997, he had paid in full the tax and penalties as agreed. By the time he was sentenced later in 1997, he was approaching 60 years of age. He had no prior convictions.
The sentencing judge imposed a sentence of 2 years imprisonment, of which 4 months was to be served in custody.
The Court of Appeal of Victoria varied the sentence by directing that the appellant be released forthwith.
In the course of his judgment, Kenny JA, with whom Vincent AJA substantially agreed, observed:
“... The extraordinary delay between detecting the offences in 1990 (or interviewing the applicant in May 1991) and charging the applicant in 1997 was never satisfactorily explained. No real explanation was proffered to the sentencing judge. ....
In R v Miceli,[5] which was also an application for leave to appeal against sentence, Tadgell JA (with whom Winneke P and Charles JA agreed) considered the effect of a delay of about two years between the detection of and prosecution for an offence against s 29D of the Crimes Act 1914. At 591, his Honour said that:
‘There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced. The remarks of Sir Laurence Street in R v Todd[6] have not infrequently been adopted by this court upon the point. Again, the remarks to a similar effect of the Court of Criminal Appeal in R v Kane[7] have not infrequently been applied. Most particularly is the matter of delay between the commission of an offence and the imposition of a sentence ... to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life.’
This court has applied this principle on various occasions, including in R v Liang and Li.[8] Much the same approach has been adopted in other courts elsewhere in this country: see eg Duncan v R,[9] R v Winchester[10] and Kernich v Director of Public Prosecutions (Cth).[11]”
[5] [1998] 4 VR 588.
[6] [1982] 2 NSWLR 517 at 519 and 520.
[7] [1974] VR 759 at 767.
[8] (1995) 125 FLR 350; 82 A Crim R 39.
[9] (1983) 47 ALR 746; 9 A Crim R 354 (WA Court of Criminal Appeal).
[10] (1992) 58 A Crim R 345 (NSW Court of Criminal Appeal).
[11] (1997) 68 SASR 454. As to the effect of delay, see also Duncan v R (1983) 47 ALR 746, Lekaj (1997) 92 A Crim R 325, R v Todd (1982) 2 NSWLR 517, R v Suckling (1983) 33 SASR 133, V (1998) 99 A Crim R 297 and R v Liddy (No 2) (2002) 84 SASR 231.
In this case, although the sentencing judge referred to delays on the part of S and A in approaching the police, the offending, at least with respect to S, became public knowledge in 1992 when she spoke to her friend.
In one sense, it is to the appellant’s credit that when he volunteered a confession to the police when interviewed by them in 1994, he not only confessed to the offences concerning S, but also the offences concerning his other two daughters, in circumstances where none of the three girls had at that stage complained to the police.
As I have said, the delay in laying charges with respect to the offences concerning S and A between 1994 and 2002 is unexplained, and what is more, encompasses a period during which the appellant had reorganised his life, undertaken a sustained program of counselling and therapy and established another relationship.
Against that background, I think that there is substance in Mr Cuthbertson’s complaint that the sentencing judge failed to give to the question of delay appropriate weight.
After dealing with the question of delay, the sentencing judge went on to refer to decisions of the Court of Criminal Appeal dealing with the question of sentencing for offences of this kind. In particular, he referred to R v Lewis,[12] R v B,[13] R v D.[14]
[12] (1993) 60 SASR 582.
[13] (Unreported) [1999] SASC 403.
[14] (1997) 69 SASR 413.
He then commented:
“The aggravating features of your conduct are that you grossly abused your position as the father of your two victims and at times in their lives where they could have had no real understanding of what was happening or how to deal with it. Whilst there was only one act of sexual intercourse with S, there were numerous such acts with A, and the indecent touching of both of them was persistent and occurred over lengthy periods of time. Your offending destroyed the family unit and plainly has had lasting effects on both victims.”
He went on to observe that he was not “particularly helped” by the report of Dr White. However, he accepted and acted upon counsel’s assurance that the appellant had “participated in and successfully completed” the course of therapy with SOTAP.
The precise manner in which the sentencing judge went about constructing the sentence under appeal appears in the following passage from his reasons:
“I am mindful of the fact that in the case of D, the offence is one of persistent sexual abuse. Nevertheless, the facts of that case and the remarks of the Chief Justice carry some resonance in this matter. He commented:
‘Offences involving unlawful sexual intercourse with children under 12 years of age where there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment.’
There he was talking about a conviction under s 74(7) of the Criminal Law Consolidation Act and he went on to speak about mitigating factors, but the importance of the matter is that it reflects the very serious view taken by courts about offending of your kind.
As to counts 1, 3 and 4, I am not minded to distinguish between any of them and they are, in any event, representative accounts. For each such count, but for your plea, I would have imposed a sentence of three years’ imprisonment, but taking account of your plea, that sentence is reduced, in each case, to two years and three months. Each such sentence would have been cumulative, but I will have to deal with that question in a moment.
With respect to count 2, the offence involved the same victim and, but for your plea, the sentence would have been one of two years’ imprisonment, but I reduce that to 18 months on account of your plea, and it is cumulative upon counts 1, 3 and 4.
With respect to count 5, the relevant maximum is seven years. I would have sentenced you to two years’ imprisonment, but on account of your plea, that is reduced to 18 months. Count 6 is a representative charge and the sentence would have been 18 months, but I reduce it to 13 months for your plea. Counts 5 and 6 would also be accumulated in the ordinary circumstance, but I intend to impose in your case a single sentence of imprisonment to reflect what I have just spoken about appropriate sentences.
The total head sentence, therefore, would be one of 10 years and 10 months’ imprisonment, but on account of totality, that sentence is reduced to a single sentence, which I now impose to commence from today, of nine years.”
The sentencing judge proceeded to deal with the question of suspension of the sentence. He stated that he had considered and taken into account what had been put to him in that respect, but he concluded that “the requirements of general deterrence and punishment” outweighed those matters, and he declined to suspend the sentence.
However, he went on to say that the matters which had been agitated with respect to suspension of the sentence, including the course of treatment which the appellant had undertaken with SOTAP, led him to fix a non-parole period which he described as “shorter than usual”.
The argument on appeal
The appellant advanced the following grounds of appeal:
“1.The Learned Sentencing Judge failed to give any or any sufficient weight of (sic) the report of Dr White;
2.The Learned Sentencing Judge failed to give any or any sufficient weight to the delay in the prosecution;
3.The Learned Sentencing Judge failed to give any or any sufficient weight to the Appellant’s completion of the SOTAP programme;
4.The Learned Sentencing Judge erred in his approach to the calculation of the head sentence (page 4, sentencing remarks);
5.The sentence was manifestly excessive in all of its circumstances;
6.The Learned Sentencing Judge erred in having regard to ‘an act of fellatio’ (page 1, paragraph 3 of the sentencing remarks);
7.The Learned Sentencing Judge erred in failing to suspend the period of imprisonment.”
As for ground 1, although in his remarks on sentence the sentencing judge was somewhat dismissive of the report of Dr White, he clearly took it into account. Looking in isolation at his treatment of Dr White’s report, I do not think that one could conclude that he failed to give it “any or any sufficient weight”.
It is convenient to deal with grounds 2 and 3 together.
I have already expressed the view that it may well be the case that the sentencing judge failed to give sufficient weight to the delay in prosecution, which must be considered in association with the appellant’s completion of the SOTAP program in the intervening period, and the other efforts made by him during that period to rehabilitate himself.
As for ground 6, clearly the sentencing judge erred in referring to an act of fellatio, but I doubt whether this had any significant effect upon the sentencing process which he followed.
It is convenient to deal with grounds 4 and 5 together, that is, as to the sentencing judge’s approach to calculation of the head sentence, and whether in the result the sentence imposed was manifestly excessive.
Central to the argument presented by Mr Cuthbertson as to this aspect of the matter is his criticism of the sentencing judge’s perception, as it appears from his sentencing remarks, of the significance of the decision of the Court of Criminal Appeal in R v D (supra).
In R v D, the court was dealing with an appeal against the sentence imposed upon the appellant following his plea of guilty to a charge of persistent sexual abuse of a child, contrary to s 74(1) of the CLCA. The sentence under appeal in that case was 6 years imprisonment with a non-parole period of 4 years and 6 months.
The appellant complained that the sentence was manifestly excessive.
The victim was the appellant’s 13 year old step-daughter. The sexual abuse took place over a period of two months, almost on a daily basis. The offences included indecent assault, cunnilingus, fellatio, and digital penetration of the victim’s vagina.
The appellant pleaded guilty at the first opportunity, after he had voluntarily ceased abusing the victim. Subsequently, he participated in family counselling, in the knowledge that this was likely to bring his offending to light. He was found to be genuinely remorseful and previously of good character.
The first question to be addressed by the court was whether or not in sentencing for offences under s 74 a different approach is called for from that which would be appropriate in cases where discrete offences, albeit representative of a course of conduct, are charged.
The answer was that there should be no difference of approach. As it was put by Doyle CJ, after referring to the then current practice when dealing with distinct offences punished on the basis that they are part of a course of conduct: [15]
“... 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.”
[15] 69 SASR 420.

Doyle CJ, with whose judgment Bleby J agreed, then had regard to a series of authorities dealing with the sentence imposed in cases of multiple representative counts involving sexual abuse of children.
I will not repeat Doyle CJ’s summary of the circumstances of each of those cases, but they all involved a course of conduct over a period of time, and multiple offences, some against children under 12 years of age, and some against children over that age.
In one, R v Lewis,[16] the court increased the sentence to one of 8 years imprisonment with a non-parole period of 6 years. In all of the others, the court either upheld a head sentence of 6 years or reduced a sentence under appeal to 6 years.[17]
[16] (1993) 60 SASR 582.
[17] See R v Lane (1995) 88 A Crim R 208, R v Freer, (unreported) Court of Criminal Appeal, SA, No S6087, 20 March 1997, R v Benier (unreported) Court of Criminal Appeal, SA, No S6077, 13 March 1997 and R v Sangricoli (unreported) Court of Criminal Appeal, SA, No S6079, 18 March 1997.
Doyle CJ came to the conclusion that in R v D there were circumstances of mitigation not present in those cases, and reduced the head sentence to one of 5 years imprisonment with a non-parole period of 3 years and 6 months.
He then went on to deal with the question of sentencing standards.
As to that aspect of the matter, he took the view that henceforth a greater distinction should be drawn between offences of unlawful sexual intercourse with children under 12 years of age, for which the penalty is life imprisonment, and those where the child is over the age of 12 years, where the maximum is 7 years imprisonment. He concluded:[18]
“I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previously decided cases to which I have already referred.
In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.
When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment.” (emphasis added)
[18] Ibid 424.
Mr Cuthbertson argued that the sentencing standard appropriate in this case was the lower range, rather than the revised range referred to in R v D.
In support of that contention, Mr Cuthbertson referred to the fact that at the outset of that part of his judgment which appears under the heading “Sentencing Standards”, in the passage from his judgment which I first quoted, Doyle CJ expressed the view that “... the sentences imposed for cases like this should be increased for persons who commit such offences in the future” (emphasis added).[19] But I would have thought that the later, specific reference to cases where “a conviction is recorded hereafter or a plea of guilty is entered hereafter” in the second of the passages which I have quoted, makes it clear what the Chief Justice intended to convey. [20]
[19] Ibid 423.
[20] Ibid 424. Bleby J simply refers to “future cases”, as to which he “would endorse the approach suggested by the Chief Justice”.
Here, the convictions were recorded and pleas of guilty were entered after the decision in R v D, so that if the view which I have just expressed was to be correct, the new standard would be applicable.
However, in the particular circumstances of this case, I do not think it necessary to decide the point. It is best left to be decided where the difference is material to the outcome.
It will have been seen from the sentencing remarks of the sentencing judge that he adopted what might fairly be described as an arithmetical approach to sentencing, assigning an individual sentence to each count, which he then aggregated.
In my view, in approaching the matter in that way, he fell into error, and the final result of that approach, namely an accumulated head sentence of 10 years and 10 months reduced by reference to the principle of totality to 9 years, is disproportionate.
While that approach might be thought to be supported by the decision in Major,[21] subsequent decisions have made it clear that the process of aggregation of individual sentences which was approved in that case is not a “rigid formula” which must necessarily be followed in cases of multiple offending.
[21] (1998) 70 SASR 488.
The question of the correct approach to sentencing for multiple offences, as a matter of general principle, was recently discussed in Nylander.[22]
[22] (Unreported) Court of Criminal Appeal, SA, 17 June 2003, judgment No [2003] SASC 191, Prior, Bleby and Sulan JJ.
In that case, the appellant was sentenced following his conviction on four counts of armed robbery and two counts of shooting at with intent to do grievous bodily harm. The approach taken by the sentencing judge in that case, and the court’s view as to the appropriate approach which should have been taken, appear from the following passage in the judgment of Bleby J, with whom Prior and Sulan JJ agreed:
“77The trial Judge took as a starting point a sentence of 10 years imprisonment with respect to each of the armed robberies. He considered that those should be cumulative. He considered that a penalty of eight years imprisonment for each of the two shooting offences should be concurrent with each other but cumulative upon the armed robbery offences, making a notional starting point of 48 years by way of head sentence. By reference of the principle of totality the trial Judge reduced that to a head sentence of 32 years.
78The notional starting point for each of the offences cannot be criticised. For offences taken in isolation each of the notional penalties was well within the range appropriate for the circumstances of the offence and the antecedents of the appellant. There could be no discount for a plea of guilty. There was no sense of repentance or remorse.
79The trial Judge followed the process referred to by the majority of this Court in R v Major (1998) 70 SASR 488, where Doyle CJ said at 490:
‘I agree with Olsson J that if a single sentence is imposed, using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act), the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative. I agree that in the present case the starting point is that each sentence would be cumulative.
If the judge does not do this, there is a real danger that a single sentence imposed under s 18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.
In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed.’
See also Olsson J at 497.
80However, that is not always the appropriate approach. In R v Symonds [1999] SASC 217 the Chief Justice, with whom Prior and Mullighan JJ agreed, said at [21] – [22]:
‘In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s 18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s 18A were not available. The power conferred by s 18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.’
81There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person.
.........
83In my opinion, this is one of those cases where it was inappropriate to embark on the approach outlined in R v Major. The adherence to that approach seems to have induced a sentencing error.
84The total notional sentence arrived at by the Judge was, in the circumstances of the appellant, particularly of his age, an unreal starting point, and demonstrated the inappropriateness of this approach taken in R v Major. The use of that starting point with the application of a discount of a proportion of that total resulted in a head sentence which was manifestly excessive in all the circumstances.
85In determining an appropriate penalty in a case like this one can only do the best one can to make some overall assessment of the seriousness of the total offending and to strike a balance with the relevant personal circumstances of the defendant.”
Here, it seems to me that, consistently with the approach identified in Nylander, and with the approach which, even before the decision in Nylander, was routinely applied in cases involving multiple counts of sexual offending of this kind,[23] the most appropriate process is simply to commence with a global figure which seems appropriate to the overall offending, and then to reduce it by reference to mitigating circumstances, such as the plea of guilty, remorse, efforts at rehabilitation and the like. The new sentencing standard defined in R v D is predicated upon that approach.
[23] All of the cases of this kind referred to by the Chief Justice in R v D involved the imposition of a single, global penalty.
Insofar as the sentencing judge in this case approached the assessment of the penalty by an arithmetical addition of discrete sentences assigned to each offence, this was an inappropriate method of calculating the sentence, and ran the risk of a disproportionately high result.
I accept that it does not follow that the sentence was, for that reason, necessarily too severe. But in the circumstances, and bearing in mind also my view that the sentencing judge failed to give sufficient weight to the question of delay, this Court should reassess the penalty.
The case involved counts of unlawful sexual intercourse with persons above and below the age of 12 years.
Applying the global approach in this case, it seems to me that an appropriate starting point would be a sentence of imprisonment of 9 years. This is perhaps less than might otherwise be thought appropriate, but I have taken into account in fixing that starting point, the lengthy delay in bringing the charges.
I would reduce the starting point of 9 years to 6 years by reference to the appellant’s plea of guilty, his contrition, and his efforts to rehabilitate himself. The latter factor is significant in this case, and would support a larger than usual discount.
I agree with the sentencing judge that the circumstances of this case likewise justify the fixation of a non-parole period of a somewhat lower order than would commonly be the case. I would fix a non-parole period of 2 years and 6 calendar months.
The only remaining question is whether or not, in the circumstances, the sentence should be suspended.
As to that aspect of the matter “the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term”.[24]
[24] Dinsdale v R (2001) 175 ALR 315 per Kirby J at 336.
In particular, it is necessary again to have regard to the long delay between the offending and sentence, which is not attributable to the appellant, and the efforts which he has made towards his rehabilitation in the meantime.
But these were serious offences, the adverse effects of which upon the victims will probably persist for the remainder of their lives.
I take into account the victim impact statements furnished by both A and S. One speaks of ongoing “fears and insecurities”, of being unable to hold down employment, and of resort to drugs. The other speaks of the fact that the memories do not disappear, and that she is consumed by hatred of the appellant, whom she feels still has “hold” of her.
The case of R v D (supra) serves to emphasise the objective seriousness of offences of this kind, and the importance of general deterrence in the process of sentencing for these offences.
In all the circumstances, I have reached the view that it is not an appropriate case in which the sentence should be suspended.
Conclusion
I would allow the appeal and quash the sentence under appeal.
Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 I would substitute a single head sentence of 6 years imprisonment with a non-parole period of 2 years and 6 months, both to commence from 10 June 2003.
MULLIGHAN J.I have had the advantage of considering the reasons for judgment of Perry J. He has set out the relevant factual matters and the issues to be decided on this appeal. I agree that the sentencing discretion miscarried and that it should be exercised afresh.
Perry J has discussed the relevant authorities and I agree with his conclusions except as I shall mention.
The offence of persistent sexual abuse of a child was introduced by s 74(1) of the Criminal Law Consolidation Act 1935 by Act 23 of 1994, well after the appellant committed the offences for which he has now been sentenced. The sentencing standard in R v D (1997) 69 SASR 413 was not established until some three years later, also well after the appellant’s offending. In my view, the Court in D intended to establish that standard for offending, which occurred after the standard was established, and in the circumstances in which it is appropriate. Doyle CJ began his observations about establishing a sentencing standard by saying at 423:
“This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future. (my emphasis)”
And later:
“It is not necessary for the court to give a warning before increasing the range of penalties for a particular type of offending: Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108 at 113-114, per King CJ; R v Lewfatt (1993) 3 NTLR 41 at 43-44, per Angel J and (at 45-46) per Priestley J. Nevertheless, as the cases cited recognise, warnings do have a part to play in the sentencing process. I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previously decided cases to which I have already referred.”
Whilst, as Perry J has pointed out, Doyle CJ said that the heavier penalty should be imposed in cases “in which a conviction is recorded hereafter or a plea of guilty is entered hereafter”, I think the tenor of his observations is that the heavier standard should only be applied where the offence was committed after R v D was decided or at least part of the persistent offending occurred thereafter. The same must be said in relation to sentences for individual offences which are regarded as representative offences. That is the view I expressed in R v Liddy (No 2) 84 SASR 231 at 236-237. Williams J expressed the same view, at 270, as did Gray J at 282-283. In that case the conduct was so severe that there was no applicable sentencing standard.
If there is a sufficient number of offences and s 18a of the Criminal Law (Sentencing) Act 1988 is employed, the new standard laid down in R v D should not be applied unless most of the offences were committed after R v D was decided. At least, that is my interpretation of the decision in R v D. In R v Liddy, I said that it was not necessary in that case to consider whether a contemporary sentencing standard should be applied to an offender who offended many years ago, and that that matter should be considered by this Court when it arises for decision: 239. I think that it is wrong to apply the standard in R v D to offending which occurred before the standard was established and it should not have been applied in the present case.
Of course a sentencing standard may not be appropriate in some cases. As Doyle CJ observed in R v D, “......... the starting point might be higher or lower”.
I think the conduct of the appellant to the two girls was persistent sexual conduct of a very serious nature because of the type of conduct and the long period during which it occurred. I do not think a sentencing standard for such conduct had been established at the time of the offending. In view of the seriousness of the offending the starting point should be eight years, after making due allowance for the likely reason for the offending as discussed by Mr White in his report. It appears that the sexual abuse of the appellant during his childhood is a significant matter.
This is an unusual case. The appellant made a full disclosure to the police on an entirely voluntary basis and thereafter undertook necessary treatment, the nature and effect of which has been related by Perry J. That is a matter of considerable importance. Whilst I agree with Perry J that there should not be any substantial reduction in the sentence due to the long delay in commencing the prosecution because it is likely that the sexual conduct of the appellant to the girls contributed to the delay, some allowance must be made for the delay in the unusual circumstances of this case. The appellant had made his confession and nothing happened for about eight years. He had completed his course of treatment. The learned Trial Judge was informed that the treatment had been successful. He had been rehabilitated. He has remarried and had employment before he was sentenced. In some cases, such as Liddy, delay does not indicate rehabilitation because there has not been an acknowledgement of guilt. In the present case there has been acknowledgement of guilt, treatment and other strong indicators of successful rehabilitation.

I would impose one sentence pursuant to s 18a of the Criminal Law (Sentencing) Act. There should be a substantial reduction in the sentence for these matters which I would fix at two years. There must also be a substantial reduction of the sentence on account of the pleas of guilty and co-operation with the authorities which I fix at two years. The head sentence should therefore be reduced to four years. I would take the same approach as the learned Trial Judge and fix a low non-parole period. Given his successful rehabilitation and the other matters which I have mentioned I would fix one year and three months. The appellant should have the opportunity of resuming his life in the community before his rehabilitation has been compromised.
I have given anxious consideration to suspending the sentence, but I regard the crimes as too serious and having been committed over too long a period to suspend the sentence.
I would allow the appeal and set aside the sentence of imprisonment for nine years and the non-parole period. I would impose a single sentence of imprisonment for four years and fix a non-parole period of one year and three months. The sentence and the non-parole period should commence on 10^th June 2003 when the appellant was taken into custody.
BESANKO J.         I have had the advantage of reading the reasons for judgment of Perry J. I agree with those reasons and with the orders which his Honour proposes.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.    Criminal Law Consolidation Act (CLCA) s 49(1).
2.    CLCA, s 49(3).
3.    CLCA, s 56.
4. [1998] 4 VR 649.
5. [1998] 4 VR 588.
6. [1982] 2 NSWLR 517 at 519 and 520.
7. [1974] VR 759 at 767.
8. (1995) 125 FLR 350; 82 A Crim R 39.
9. (1983) 47 ALR 746; 9 A Crim R 354 (WA Court of Criminal Appeal).
10. (1992) 58 A Crim R 345 (NSW Court of Criminal Appeal).
11. (1997) 68 SASR 454. As to the effect of delay, see also Duncan v R (1983) 47 ALR 746, Lekaj (1997) 92 A Crim R 325, R v Todd (1982) 2 NSWLR 517, R v Suckling (1983) 33 SASR 133, V (1998) 99 A Crim R 297 and R v Liddy (No 2) (2002) 84 SASR 231.
12. (1993) 60 SASR 582.
13. (Unreported) [1999] SASC 403.
14. (1997) 69 SASR 413.
15. 69 SASR 420.
16. (1993) 60 SASR 582.
17.   See R v Lane (1995) 88 A Crim R 208, R v Freer, (unreported) Court of Criminal Appeal, SA, No S6087, 20 March 1997, R v Benier (unreported) Court of Criminal Appeal, SA, No S6077, 13 March 1997 and R v Sangricoli (unreported) Court of Criminal Appeal, SA, No S6079, 18 March 1997.
18.    Ibid 424.
19.    Ibid 423.
20.   Ibid 424. Bleby J simply refers to “future cases”, as to which he “would endorse the approach suggested by the Chief Justice”.
21. (1998) 70 SASR 488.
22. (Unreported) Court of Criminal Appeal, SA, 17 June 2003, judgment No [2003] SASC 191, Prior, Bleby and Sulan JJ.
23.    All of the cases of this kind referred to by the Chief Justice in R v D involved the imposition of a single, global penalty.
24.    Dinsdale v R (2001) 175 ALR 315 per Kirby J at 336.

[2003] SASC 428

23 December 2003