R v R, AW

The Director of Public Prosecutions applied for permission to appeal against a sentence imposed on the respondent, R, who had pleaded guilty to persistent sexual exploitation of his daughter. The offending occurred between 1993 and 1996, when the victim was between five and eight years old. The initial complaint was made in 2003, but no prosecution followed; instead, the respondent agreed to undertake treatment at a sexual offenders program and leave the family home. Following his return home after 14 months and a subsequent separation from his wife in 2010, the victim reopened her complaint, leading to the respondent's charge and guilty plea. In 2012, the respondent was sentenced to six years imprisonment with a one-year non-parole period, taking into account his early guilty plea, contrition, and established rehabilitation, as well as a significant delay in the proceedings. The appeal concerned whether the sentence was manifestly inadequate, particularly the non-parole period.

The court was required to determine whether permission to appeal should be granted and, if so, whether the sentence imposed was manifestly inadequate, with a specific focus on whether the non-parole period was erroneously low. This involved considering the principles applicable to prosecution appeals against sentence and the sentencing policies for sexual offenders. The court also had to assess the relevant factors for setting both the head sentence and the non-parole period, distinguishing between predictive rehabilitation and established rehabilitation, and considering the impact of changes to the parole system, including discretionary and non-discretionary release mechanisms.

The court reasoned that while the six-year head sentence was at the lower end of the acceptable range, the one-year non-parole period was too low given the gravity of the offending and its profound impact on the victim. The court acknowledged the respondent's early guilty plea, contrition, and the delay in prosecution, which had facilitated his rehabilitation. However, it found that these factors did not justify such a short non-parole period. The court considered that, despite the mitigating circumstances, the non-parole period should reflect community abhorrence for such offences and the need for adequate punishment.

Consequently, the court granted permission to appeal, allowed the appeal, and set aside the original sentence. The court reimposed the head sentence of six years imprisonment but increased the non-parole period to three years and six months, deeming the original sentence, even with the revised non-parole period, to be merciful.