R v Pridgeon
[2006] VSCA 250
•23 November 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 268 of 2006
| THE QUEEN |
| v. |
| MICHAEL ALAN PRIDGEON |
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JUDGES: | CALLAWAY, VINCENT and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 November 2006 | |
DATE OF JUDGMENT: | 23 November 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 250 | 1st Revision 29 November 2006 |
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Criminal law – Sentence – Six counts of indecent assault upon children under 16 – Offences committed in 1978 and 1991 – Total effective sentence of two years’ imprisonment with non-parole period of nine months – Applicant 71 years old – Multiple health problems – Whether a finding pertinent to the extent of risk of applicant re-offending was open – Whether judge bound to find that applicant posed a lesser risk of re-offending than was found in fact – Whether judge erred in finding that specific deterrence had some role to play in sentencing applicant – Sentencing discretion re-opened – Appeal allowed – Offender resentenced to a total effective sentence of 21 months’ imprisonment with the time not already served suspended for a period of two years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs M.M. Williams, S.C. | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr P.G. Priest, Q.C. with Mr K.G. McGowan | Campbell & Shaw |
CALLAWAY, J.A.:
I invite Ashley, J.A. to deliver the first judgment.
ASHLEY, J.A.:
On 30 August 2006 a County Court judge sentenced Michael Pridgeon, on six counts of indecent assault upon children under the age of 16 years, to a total effective sentence of two years’ imprisonment with a non-parole period of nine months. Her Honour made consequential orders to which I need not refer. Now Mr Pridgeon seeks leave to appeal against sentence. The grounds of appeal, so far as they were pursued, are as follows:
“The sentencing judge erred in the following respects, in that she failed to :
1. Give sufficient weight to the pleas of guilty.
2.(a) Take into account sufficiently or at all the prosecution’s attitude to sentence; and in particular, that a sentence of imprisonment wholly suspended was open in the circumstances.
(b)Give any reasons for rejecting the prosecution submission that a sentence of imprisonment wholly suspended was open in the circumstances.
3.Take into account sufficiently or at all the cumulative effect of the applicant’s multiple health problems and the manner in which they will affect the applicant in the service of actual imprisonment to be undergone.
...
5.Take into account sufficiently or at all the psychological evidence tendered by the applicant to the effect that he was not a paedophile and did not present a danger to the community.
6.Take into account sufficiently or at all that the applicant was not a proper vehicle for specific deterrence.”
The circumstances of the offences
The applicant was a school teacher between about 1953 and 1993. In 1978 he was a teacher at Coatesville Primary School. In the course of that calendar year, probably from about September onwards, he interfered with two girls who were students at the school.
Counts 1, 2 and 3 on the presentment alleged three offences in respect of one girl, and counts 4 and 5 alleged offences in respect of a second girl. In the case of the first complainant, count 1 was an incident in which the applicant touched the victim’s bare breasts. Count 2 was an occasion on which the applicant touched the complainant’s vagina from outside her clothing. Count 3 was an incident of digital penetration of the vagina.
Then, concerning the second complainant, count 4 was an incident in which the applicant touched the complainant’s breast, and count 5 an incident in which the applicant touched the complainant’s vagina, and her pubic hair, by putting his hand down her pants.
Count 6 related to a third complainant, another student at another school. It arose out of an incident which occurred in 1991, that is, some 13 years after the incidents giving rise to counts 1 to 5. The applicant touched the pre-pubescent complainant in the region of her breast, but outside her clothing.
Although, it appears, the complainants alleged that the incidents the subject of the discrete counts were not isolated, and although there was a suggestion that the applicant had interfered with two other girls in 1991, the matter proceeded in the County Court on the basis that the offences alleged were single, not representative, counts. Further, there was no suggestion that the applicant was to face any other charges.
The sentence
Each of the offences was, at the time of its commission, characterized as an indecent assault. The maximum penalty in each instance was five years’ imprisonment. The learned judge sentenced the applicant to nine months’ imprisonment on each of counts 1, 2, 4, 5 and 6, and to 12 months’ imprisonment on count 3. She cumulated six months of the sentences imposed on counts 5 and 6 on each other and on the sentence imposed on count 3. That yielded a total effective sentence of two years’ imprisonment. Concerning the non-parole period which she imposed, the judge said this:
“I also consider it important to impose a lengthy non-parole (sic) period. Whilst it is appropriate, in my view, and the only appropriate sentence, to impose a term of imprisonment and one which requires time to be immediately served, I do not consider that a long term of imprisonment is necessary in your circumstances. I do consider, because of my concerns about your limited insight and my concerns about rehabilitation, that I should impose a lengthy non-parole (sic) period so that you can, if considered suitable for parole, receive assessment and monitoring upon your return to the community.”
I should here mention that there is a problem with the sentence which the judge imposed. In respect of counts 3 to 6, the applicant fell to be sentenced as a “serious sexual offender” within the meaning given that term by s.6B of the Sentencing Act 1991. By s.6E of that Act, every term of imprisonment imposed for a serious sexual offence must be served cumulatively unless otherwise directed by the Court. In fact, the judge made the sentence on count 3 the base sentence. She then cumulated in respect of counts 5 and 6, but made no order or gave no direction in respect of count 4. Whatever could be said in support of the form of orders made in respect of counts 5 and 6, it cannot be said in support of the silence in respect of count 4. On the face of things, the total effective sentence which the judge imposed is not compatible with the sentences passed on the individual counts.
The applicant
It is now convenient to say something about the applicant. He is a man aged 71. All his adult life, he was a schoolteacher. He is, and has always been, single. For much of his life he lived with his parents – both of them until his father’s death in 1978, and thereafter with his mother until her death in June 2004. Not only has the applicant always been a single man, it appears that he has never had sexual intercourse nor engaged in any sexual contact with what has been called “an age appropriate male or female”. Evidently he had a close bond with his mother, the two of them living together for the last 26 years of her life.
Next, the applicant was sentenced as a man who, the instant offending apart, was otherwise of good character. He had no other criminal convictions, nor charges outstanding.
I should address the question of the applicant’s state of health. The material before the sentencing judge showed that he has a number of ongoing medical problems. He suffered a myocardial infarction in April 1969. Thereafter he has remained in atrial fibrillation. Diabetes was diagnosed in 1981. In October 2004 he suffered a left lacunar stroke, this leaving him with residual right sided weakness and incoordination. Next, it may be the case, the material is not quite clear, that he suffered a second cerebral episode in December 2004. Certainly, in February 2005, he suffered a second myocardial infarct. It was complicated by an acute bleed from the entry site in the femoral artery of the instrument used to perform an angiogram. The bleed caused a massive haematoma in his right leg. Then, in October 2005, he suffered a severe injury to his left lower leg, with a tear of major muscle and significant haemorrhage into the leg. Again, in January 2006 he was admitted to hospital following a serious gastro-intestinal haemorrhage. It was the consequence of anticoagulant therapy made necessary by his vascular disease. More recently, probably in about May this year, he underwent surgical repair of a left inguinal hernia. I note also counsel’s submission on the plea that the applicant suffers from arthritis, this making it difficult for him to walk.
As at August this year, the applicant was taking at least nine different medications each day. His situation was described as “stable”, which is not to convey that he was other than a man afflicted with substantial medical problems.
The plea
I should next make mention of the plea. Counsel for the applicant sought a wholly suspended sentence. He placed reliance upon eight factors:
· The pleas of guilty.
· Remorse.
· An absence of prior or subsequent convictions.
· Previous good character.
· Rehabilitation.
· Age and ill health.
· The applicant not posing a danger.
· The Crown’s attitude to sentence.
Concerning the last-mentioned matter, the position of the Crown, as stated to the judge, was that it would not be an appealable error if the applicant was sentenced to a period of imprisonment wholly suspended.
The sentencing remarks
It is convenient next to go to the structure of the judge’s sentencing remarks.
First, her Honour identified the nature of the offending, noting that the applicant had pleaded guilty to single counts, and not to a continuing course of conduct. In the course of describing the offending conduct, the judge referred to the fact that complaints had been made at the time by parents of the victims, but that their complaints had gone unsatisfied, the applicant particularly having denied any wrongdoing in 1991.
Second, the judge, noting that the applicant had made only equivocal admissions in relation to one of the complainants when interviewed by the police in 2003 and 2004, accepted that his denials – which had continued until he pleaded guilty at trial – were associated with his having lived in a “state of denial” for a long period of time, he having had a failure or inability to admit to himself what he had done to his victims. The judge observed that the plea of guilty was –
“ … a very powerful acknowledgement and admission that you finally did recognise that from the start you have done the wrong thing and known that what you had done was wrong.”
This acceptance of responsibility, according to the judge, had gone a long way to vindicate the victims, who until that time had not merely suffered the assaults but the added humiliation of being branded and made to feel liars or fantasisers.
Third, the judge referred to the applicant’s age, retired status, and health problems. Whilst she said that his health problems were not to be underestimated, she described them shortly and incompletely.
Fourth, the judge characterized the applicant’s offending as “paedophilic sexual assaults”. Evidence had been given that, although the applicant’s offending could properly be described as paedophilic, he did not satisfy the diagnostic criteria for a paedophile. The judge described the distinction as meaningless.
Fifth, the judge noted that the first five counts on the presentment spanned a period of up to a year. She concluded that the offence referred to in count 6, committed some 13 years later, was serious, although it had involved a touching on the outside of the clothing. Her Honour saw no basis for distinguishing it as a less serious offence. It had come after the applicant had been warned and confronted in 1978.
Sixth, her Honour addressed the submission, advanced for the applicant, that because of his age, his physical difficulties, the absence of offending between 1978 and 1991, and the elapse of time since 1991, the judge could be confident that the applicant was “at little or no risk” of further offending. That submission was founded, apart from its reliance upon the sequence of events and evidence as to the applicant’s physical condition, upon the opinion of Mr Jeffrey Cummins, psychologist, in a report dated 10 August 2006. Mr Cummins there described the likelihood of the applicant re-offending as “minimal”. I add that in viva voce evidence the witness opined that the applicant did not present a danger to any section of the community; and that he would put the applicant in ”the low risk category”.
The judge said that she did not consider the applicant’s “health issues” to be conclusive upon the risk of his re-offending, having regard to the nature of his offending behaviour. She then said this –
“I am not prepared to find, on the evidence, that you are not at risk of further offending. As Mr Cummins said, you have little, if any, insight into your offending behaviour or into the impoverished emotional life that you have led. Although I accept Mr Cummins’s assessment of the importance to you of the relationship with your mother and his view of the inappropriateness of that as being the closest relationship and the nature of it, I am also conscious that following her death you have lost your only real relationship and companionship. Therefore I consider that you are at risk because of the loss of that relationship of forming an inappropriate attachment to a child. It is of note that the only people apart from your mother with whom you have had some sort of emotional bond seems to have been the three girls, the victims of these six counts.”
Seventh, the judge dealt with the role of specific deterrence. She concluded that it had some role to play in sentencing the applicant because of the absence of him having any other appropriate relationship, his very limited insight, and the fact that he had re-offended in 1991 although he had been confronted in relation to the 1978 offending.
Eighth, the judge turned to rehabilitation. She concluded that the applicant had shown little or no evidence of rehabilitation. That was because of the applicant’s limited insight and his “psycho-social history”. For the same reason, the judge concluded that the applicant’s remorse was limited.
Ninth, the judge accepted the submission that imprisonment would be much more onerous for the applicant than for others because of his age, poor health, and previous non-involvement with the criminal justice system. She also accepted that the nature of the offences would make imprisonment more onerous because of the conditions in which it would have to be served.
Tenth, the judge said that the applicant was to be sentenced as a man who had been of good character up to 1978 – that is, the year in which the offending first occurred – but not thereafter.
Eleventh, the judge then concluded that no sentence other than imprisonment was appropriate. She noted that in respect of the third and subsequent counts the applicant was to be sentenced as a “serious sex offender”. She concluded that it was not necessary or appropriate to impose a disproportionate sentence under s.6D(b) of the Act.
The matters which I have catalogued led on to her Honour imposing the sentence which she did.
Resolution of the application and appeal
I turn to the grounds of appeal. It is convenient to consider ground five immediately, because in my opinion it has been made out – in substance, if not in form.
The submission that the applicant presented a minimal or very low risk of re-offending had significance for three purposes.
First, it was relevant to the sentences imposed on each of counts 3 to 6, because on those counts the applicant was being sentenced as a serious sexual offender. In that context, the court was required by s.6D(a) of the Sentencing Act to regard protection of the community from the offender as the principal purpose for which the sentence was imposed. That is so quite regardless whether the circumstances were considered such as to bring s.6D(b) into play. In determining what the “protection of the community from the offender” required, the extent of the risk that the person being sentenced would re-offend is evidently important.
Second, it bore upon the extent to which the applicant should be regarded as having been rehabilitated.
Third, it bore upon the role of specific deterrence as a sentencing consideration.
I accept that in some circumstances a judge may make a finding, whether favourable or adverse to an accused, by having regard to the judge’s own understanding of human conduct. But in this case the judge concluded, the applicant having lost his “only real relationship and companionship” by reason of the death of his mother in mid-2004, that he was “at risk because of the loss of that relationship of forming an inappropriate attachment to a child”. That was a conclusion which reached into the realms of psychiatry, psychology, or both. In my opinion, no evidence had been given as would support that conclusion.
On that footing alone, I consider that there was an error of a material character in the sentencing process. The finding upon which I have focused was critical to the judge’s rejection, in substance, of the submission that the applicant presented a minimal or very low risk of re-offending.
I should mention two other matters in connection with the particular finding.
First, it was reached against the background that the judge found that the distinction, drawn by Mr Cummins, between a man being a paedophile and a man who had engaged in paedophilic behaviour, was meaningless. But, with respect, the fact that there is a distinction is clear. The distinction – it was adverted to by each of the learned presiding judge and Vincent, J.A in argument - is between the character of a person and the acts of a person. It is a distinction of general application. As Callaway, J.A. observed, it was described at some length nearly 400 years ago by St Francis de Sales[1]. In the present case, the distinction is between the character of the offender and the fact of offending. It bears upon the extent of the risk of re-offending. At least ordinarily, the risk of a paedophile re-offending would be accounted greater than the risk posed by a person not so characterized who had in the past, on occasion, offended in such a way.
[1]The relevant passage, in the chapter dealing with detraction, is too long to quote in full, but it includes the following: “To be credited with a vice or virtue the action must be protracted and habitual. So it would be untrue to call a man bad-tempered or a thief because he was once angry or once guilty of stealing.” Introduction to the Devout Life (1619, trans. Michael Day 1962) at 169.
Second, the finding was expressed without her Honour paying any overt attention to the fact that the applicant’s only offending had been in a teacher/student context, a context now long past.
Another approach yields, in my opinion, the same conclusion - that is, that there was a significant error in the sentencing process. The applicant’s counsel had submitted that his client was “at little or no risk of further offending”. Whilst the judge initially said, in response to that submission, that she was “not prepared to find … that [the applicant] was not at risk of further offending”, she thereafter concluded that he was at risk of forming an inappropriate attachment to a child. At least implicitly, that was a rejection of the submission that the applicant was at little or no risk of further offending. In my opinion, upon the evidence placed before her, the judge was bound to find that the risk of re-offending was less than she found it to be. That was so because her contrary opinion was founded upon a conclusion that was not available on the evidence, because the extent of the applicant’s physical disabilities was considerable, and told in a practical way against the prospect of his re-offending, because her Honour appears not to have perceived the distinction between the character of an offender and the fact of offending, and because – although it was not binding on the judge – Mr Cummins’s opinion was unimpugned.
I should next refer to ground 6. It complains that the judge failed to take into account, sufficiently or at all, that the applicant was not a proper vehicle for specific deterrence. In my opinion, again, that ground has been made out in substance, if not in form. The judge identified three circumstances which led to her conclusion that specific deterrence had “some role to play” in sentencing the applicant. First, the fact that he did not have any other appropriate relationship. Second, his very limited insight into his offending behaviour. Third, the fact that he had offended in 1991 despite having been confronted by the 1978 complaints.
The first of those matters harks back to the finding that the applicant was at risk of forming an inappropriate attachment to a child because his mother’s death had stripped him of his “only real relationship and companionship.” For reasons which I have explained, that finding was not sustainable.
Second, whilst what I have just said sufficiently impugns her Honour’s conclusion, I doubt that the applicant’s lack of insight into his offending behaviour – taking that to be the situation – told in favour of specific deterrence having a part to play in the sentencing process. As it was explained by Mr Cummins, the applicant had always suffered from an extreme level of psycho-sexual immaturity. He had chronically repressed his sexuality. He explained his offending by saying that he felt close to a lot of his students and that he supposed his conduct was an extension of the affection which he had for them. There is, I think, a substantial question whether the applicant’s lack of insight could be accounted something over which he had control. If it was not – which I think was the overall burden of the judge’s conclusions - then whether it could tell in favour of specific deterrence being a sentencing consideration must at least be debatable.
Although it is strictly unnecessary to do so, I will refer briefly to grounds 1, 2 and 3. In my opinion none of them was made out.
As to ground 1, counsel submitted that although the learned judge said that the applicant would get considerable credit for his plea of guilty, the sentence did not reflect it. In particular, counsel submitted that the sentence imposed on count 6 did not sufficiently reflect the applicant’s plea of guilty upon a count in respect of which the supporting evidence was weak. Further, counsel submitted, the lateness of the plea had to be measured against the fact that the allegations raised at the committal hearing had been distilled into a relatively small number of counts at the trial.
Whilst, upon the sentencing discretion being re-opened for other reasons, I consider that a different sentence should be passed, I do not consider that the individual sentences which the judge imposed, or the total effective sentence, bespeak failure by her Honour to acknowledge the utility of the guilty plea. Further, I consider that the judge gave a tenable explanation why it was that she imposed the sentence that she did on count 6.
I go to ground 2, the complaint that the judge failed to take into account sufficiently or at all the Crown’s attitude to sentence; or to provide reasons why it was that she rejected the Crown’s position.
I have already said that counsel for the applicant submitted on the plea that the appropriate disposition was a sentence of imprisonment wholly suspended; and that counsel for the Crown took the position that such a disposition would not be appealable. It is true that the judge did not refer in her sentencing remarks, in terms, either to the submissions for the applicant or the position adopted by the Crown. But she did say that she considered it appropriate – indeed, that it was the only appropriate sentence - to impose a term of imprisonment which required time to be served immediately; and she gave some indication of the matters which had weighed in her coming to that conclusion. Further, she gave a reason why, in her opinion, there should be a longer than usual period of parole - that is, so that the applicant, if considered suitable for early release, could receive assessment and monitoring on his return to the community.
It is one thing to say that the reasons motivating the judge’s decision to impose a period of actual confinement, and then a parole period which was long in relative terms, were unsound. It is another thing altogether to say that the judge did not have regard to the submission for the applicant, supported to some extent by the Crown’s concession, that any sentence of imprisonment should be wholly suspended.
I turn to Ground 3. It complains that the judge failed to take into account sufficiently or at all the cumulative effect of the applicant’s multiple health problems and the manner in which they would affect him in serving the period of immediate custody. I have noted already that the judge did not fully describe the applicant’s multiple health problems. If I had been the sentencing judge, I should have accorded them greater weight in considering whether the applicant serve a period of immediate incarceration; for the problems were many and substantial. But that is not the test. It cannot be said that the judge failed to take the particular matters into account at all; and then one gets to weight, and there opinions may legitimately differ.
Re-sentencing the applicant
In my opinion the application should be granted, the appeal allowed and the applicant re-sentenced. I consider, for more than one reason, that the judge reached a conclusion with respect to the risk of the applicant re-offending which was impermissibly too unfavourable. The risk, in my opinion, should have been accounted extremely low. That was so because of the applicant’s age and multiple physical problems, the long period which had elapsed since his last offending, the isolated nature of that particular offence, the fact that all the offences had occurred in a particular setting which was now long-closed, and the fact that most of the offences had occurred at a time of particular stress for the applicant – that is, the period immediately preceding his father’s death. For the sake of completeness, I should mention also the circumstance that the applicant has not driven a motor vehicle since late 2004 – a matter which in a practical sense would seem to further limit the prospect of him getting into situations where offending might occur.
As I have explained, the extent of the risk of the applicant re-offending was relevant, inter alia, to what sentence was required in order to protect the community from the applicant – a matter relevant to sentence on each of counts 3 to 6, and in turn to the total effective sentence which was imposed.
I further consider that, in treating specific deterrence as a pertinent sentencing consideration, the judge relied upon one - perhaps two - reasons which were unsound. In my opinion, if specific deterrence had any part to play in the sentencing exercise, it was a very small part. That was so because of the very small risk of the applicant re-offending.
Upon a re-sentencing, the starting point is that a sentence of imprisonment should be imposed. The nature of the applicant’s offending as I have described it demands no less. The Court takes a very serious view of sexual offences committed against children, a fortiori when the offender stands in a position of trust vis a vis his victims. In considering the gravity of this applicant’s offending, I should add that I have studied the contents of the victim impact statements which were placed before the sentencing judge.
I turn to the individual sentences. I consider that there should be a degree of discrimination which was not reflected by the sentences imposed below. Specifically, I consider that the sentences imposed on counts 2 and 5 should be greater than the sentences imposed on counts 1, 4 and 6. The latter assaults were of a different kind, albeit that each of them invaded the particular victim’s person. I add that I consider it appropriate to impose the same sentence on count 6 as on counts 1 and 4 because of the circumstance, mentioned by the judge, that this was an offence committed despite the applicant having been put on notice after his offending in 1978.
The consequence of the individual sentences which I would impose, and the orders for concurrency that I would make, is that the total effective sentence which I would impose is 21 months. That is compatible with the risk to the community posed by the applicant being less significant than the judge assessed it.
There then arises the question whether a new non-parole period should be fixed; or whether, alternatively, part of the sentence should be suspended. Particularly having regard to my opinion, founded upon all the material before the Court, that the applicant presents a very low risk of re-offending, and to the consequences of that conclusion - first, that assessment and monitoring have no real
part to play in his future management in the criminal justice system; and second, that the applicant unassessed and unmonitored poses no greater threat to the community than the applicant assessed and monitored - I consider that the second course is the preferable one. In the event, I would order that so much of the period of 21 months’ imprisonment as the applicant has not served as at 23 November 2006 be suspended for a period of 2 years.
Upon the individual counts, I would re-sentence the applicant as follows –
• On count 1, six months’ imprisonment
• On count 2, nine months’ imprisonment.
• On count 3, 12 months’ imprisonment.
• On count 4, six months’ imprisonment.
• On count 5, nine months’ imprisonment.
• On count 6, six months’ imprisonment.
I would direct that 3 months of the sentences imposed on each of counts 5 and 6 and all of the sentence imposed on count 4 should be served concurrently with the sentence imposed on count 3, that yielding a total effective sentence of 21 months. Further, and repeating what I said a moment ago, I would order that the applicant be imprisoned for so much of the sentence as ends on 23 November 2006, and that the balance of the sentence be suspended for a period of two years.
CALLAWAY, J.A.:
I agree with Ashley, J.A., substantially for the reasons his Honour has given. I would place more emphasis on the second approach, that in all the circumstances the learned judge was bound to take a more favourable view of the applicant's prospects
of rehabilitation than she did, but the result is the same.
VINCENT, J.A.:
I agree, for the reasons advanced by the learned presiding judge and Ashley,
J.A., that this application should be granted and the applicant re-sentenced in the manner proposed.
CALLAWAY, J.A.:
Mr Pridgeon, Judge Hampel sentenced you to two years' imprisonment with a non-parole period of nine months. As you have heard, we shall reduce the sentence to 21 months and suspend the part of it that you have not already served. That is not because these were not serious crimes. They were. It is for the reasons that Justice Ashley has given, especially your age, your ill health and your prospects of not re-offending. The effect of the suspended sentence is this. The rest of the 21 months sentence will hang over your head for a period of two years. If, during that period, you commit another offence punishable by imprisonment, you will be brought back before a court. It does not matter whether you are in fact imprisoned for that offence or not. It does not matter whether it is committed in Victoria or elsewhere. If you commit another offence that could be punished by imprisonment, you will be brought back before a court. That court may punish you for breach of the suspended sentence that we are imposing, but, far more importantly, you will almost certainly be ordered to serve the rest of the 21 months in prison. You only get one last chance to stay out of prison. Do you understand that?
APPLICANT:
I do.
CALLAWAY, J.A.:
You may be seated while I pronounce the orders, which are lengthy.
The formal orders of the Court will be as follows:
The application for leave to appeal against sentence is granted.
The appeal is treated as instituted and heard instanter and is allowed.
The sentences of imprisonment imposed below are quashed. In lieu thereof, the Court passes the following sentences and makes the following orders:The appellant is sentenced to the following terms of imprisonment:
Count 1 - six months;
Count 2 - nine months;
Count 3 - twelve months;
Count 4 - six months;
Count 5 - nine months;
Count 6 - six months.
The Court orders that three months of the sentence imposed on each of counts 5 and 6 and all of the sentence imposed on count 4 be served concurrently with the sentence imposed on count 3, resulting in a total effective sentence of 21 months' imprisonment.
The Court further directs that all but 86 days of that sentence be suspended for an operational period of two years.
The sentence is deemed to have been imposed, and the operational period to have begun, on 30th August 2006.
The appellant is sentenced for the offences the subject of counts 3, 4, 5 and 6 as a serious sexual offender and it is ordered that that fact be entered in the records of the Court.
It is declared that the appellant must continue to comply with the reporting obligations imposed by Part 3 of the Sex Offenders Registration Act 2004 for the remainder of his life.
It is further declared that the period of 86 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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