Williams (a pseudonym) v The Queen
[2021] VSCA 35
•1 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0208
| VICTOR WILLIAMS (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.
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| JUDGES: | PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 February 2021 |
| DATE OF JUDGMENT: | 1 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 35 |
| JUDGMENT APPEALED FROM: | DPP v Williams (a pseudonym) [2019] VCC 1599 (Judge Lacava) |
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CRIMINAL LAW — Appeal — Sentence — Sexual penetration and attempted penetration of a child under 16 — Total effective sentence of 12 years’ imprisonment with non-parole period of 8 years — Whether manifestly excessive — Whether insufficient weight given to guilty plea, totality, age and previous good character — Leave to appeal granted — Appeal allowed — Resentenced to 9 years’ imprisonment with non-parole period of 6 years — DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428 and DPP v Zhuang (2015) 250 A Crim R 282 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N Goodfellow | Tyler Tipping & Woods |
| For the Respondent | Mr JCJ McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA:
Introduction
On 20 September 2019, the applicant pleaded guilty before a judge in the County Court to sexual penetration of a child under 16[2] (four charges — charges 1, 3, 4 and 5) and attempted sexual penetration of a child under 16[3] (one charge — charge 2).
[2]Crimes Act 1958, s 45(1). By virtue of s 45(2)(a), the maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, ss 45(1) and 321M. By virtue of s 321P(1)(a), the maximum penalty is 20 years’ imprisonment.
Following a plea, on 25 September 2019 the judge sentenced the applicant to a total effective sentence of 12 years’ imprisonment, with a non-parole period of eight years, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Sexual penetration of a child under 16 [digital-vaginal penetration] 7 years Base 2 Attempted sexual penetration of a child under 16 5 years 1 year 3 Sexual penetration of a child under 16 [digital-vaginal penetration][4] 5 years Nil 4 Sexual penetration of a child under 16 [lingual-vaginal penetration] 5 years 2 years 5 Sexual penetration of a child under 16 [penile-oral penetration] 5 years 2 years Total effective sentence: 12 years Non-parole period: 8 years Pre-sentence detention: 5 days Other orders: Sex offender registration (life); forensic sample order [4]Pursuant to Part 2A (ss 6A to 6F) of the Sentencing Act 1991, the applicant was sentenced as a serious sexual offender on charges 3, 4 and 5.
The applicant seeks leave to appeal against his sentence on a single ground formulated as follows:
The individual sentences, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars
(a) The learned sentencing judge gave manifestly insufficient weight to the applicant’s pleas of guilty and the principle of totality.
(b) The sentences imposed are more severe than that which were necessary to achieve the purposes for which the sentences were imposed.
(c) The learned sentencing judge gave manifestly insufficient weight to the applicant’s age and life expectancy.
(d) The learned sentencing judge gave manifestly insufficient weight to the applicant’s lack of prior convictions and prior good character.
In our view, leave to appeal should be granted; the appeal allowed; and the applicant be resentenced in the manner set out below.[5] Our reasons follow.
[5]At [27].
The applicant’s offending
It was accepted for the purposes of the plea that the applicant’s offending was accurately described in the Summary of Prosecution Opening Upon Plea in the following terms:[6]
[6]Footnotes omitted.
Background
1. The complainant, [‘MS’] … was between 8 and 10 years of age at the time of the offending. She, together with her mother and siblings, moved into an address in [an eastern Melbourne suburb] towards the end of September 2011. The [applicant], who was 62 at the time, lived a few doors up in the same street.
2. In approximately March 2012 the [applicant] became friendly with the complainant’s mother, [‘ES’]. The contact started with general chit-chat out the front of the house, and grew into a friendly relationship where the [applicant] would bring food over becoming quite close with [ES] and her children. The [applicant] had a computer set up and the complainant would often attend his house to use the computer for her homework with the consent of her mother. She was often alone.
Circumstances of the offending
Incident 1
3. The first sexual incident occurred whilst the complainant had attended and had finished writing a story on the [applicant]’s computer. She went into the lounge room where the [applicant] was. He told her that she was pretty and that she needed to experience ‘this’ at a young age ‘to see what if feels like’. The complainant did not know what the [applicant] was referring to but complied with his request to sit next to him on the couch.
4. The [applicant] pulled down the complainant’s pants and underwear to her knees before pulling off his own pants to expose his erect penis. He then asked ‘Can you please touch my cock?’. He repeated this request but the complainant refused to comply and stated that she didn’t want to.
5. The [applicant] then put his hands on the complainant’s shoulders and laid her back slowly on the couch. He moved into a position ‘on top’ of her and retrieved a bottle from the table beside the bed from which he used his fingers to gather a thick pasty substance. He rubbed the substance onto his penis and started rubbing the substance onto the complainant’s vagina before using his finger to penetrate her vagina. He moved his finger around in circles for ‘a minute’ (Charge 1: Sexual Penetration of Child under 16). The complainant felt a burning sensation.
6. The [applicant] then attempted to insert his penis into the complainant’s vagina. He moved up and down with his erect penis exposed touching the complainant’s vagina (Charge 2: Attempted Sexual Penetration Child under 16). The complainant’s vagina was ‘stinging’. He made groaning noises as he moved his penis up and down and his head was on the complainant’s shoulder. His hands were underneath her buttocks. The [applicant] made noises just before he stopped and then he pulled the complainant’s pants up and then his own. The complainant ran home trying not to cry.
Incident 2
On one occasion the complainant and her sister went to the [applicant]’s house … to watch a movie. While doing so the complainant was lying on the couch with the [applicant], with her back up against him. The [applicant] then put his hand inside her underwear and inserted his finger in her vagina (Charge 3: Sexual Penetration of a child under 16). At the time in question the complainant and the [applicant] were covered by a blanket. After the movie finished the [applicant] walked the complainant and her sister home.
Incident 3
On a further occasion the complainant went after school to the [applicant]’s house … The [applicant] sat her up on the couch, her pants and underwear having been removed, and started licking her vagina (Charge 4: Sexual Penetration of a child under 16). After a time she was able to push his head away and he allowed her to get dressed.
Incident 4
On another occasion the complainant and her sister went to the [applicant]’s house … to help pack boxes for his forthcoming move. At one point, when her sister was elsewhere, the [applicant] took the complainant with him to the toilet and asked her to suck his penis. She initially refused but when he persisted she ultimately complied by sucking his penis briefly (Charge 5: Sexual Penetration of a child under 16). When she refused to resume this activity they re-joined her sister and continued packing boxes.
Complaint
7. About 3 years later, whilst still at school, the complainant told her two friends, [‘MW’], and [‘EB’] about the allegations. She whispered into [MW’s] ear whilst packing up in class that a guy ‘had raped her’. She told [MW] not to tell anyone. The complainant got her friend [EB] to come over immediately after telling [MW] and told her as well. She added that it was about 3 years ago and the male was 63 years of age. Immediately after telling her friend [MW], and whilst still in the classroom at school, the complainant told [EB] that a 63 year old man kept following her around and started to touch her at times and ‘he pulled down his and her pants and started to…..’ The complainant also told her friend, [‘KC’], that she’d been raped and wanted to tell a teacher. [KC] attended with the complainant when she told her teacher … shortly afterwards whilst at school. Notifications were made forthwith.
Investigation and Interview
8. During the recorded interview of 26 May 2017 the [applicant] volunteered having a close relationship with the complainant to the point where, on one occasion whilst in the ensuite to his bedroom, he examined her vagina because she had a rash. He admitted that he ‘pulled her panty down, had a look and felt it’. He stated that he felt/rubbed where the rash was, which was ‘to the side’ of her vagina. He later got some cream and gave it to her.
9. The [applicant] also admitted that there was an occasion of simulated sex. This occurred in his bedroom when the complainant had come over to his house with her siblings to wash his windows. The [applicant] stated that somehow, he and the complainant have ended up in his bedroom lying on the bed when the complainant got on top of him simulating sex whilst their bottom clothes were removed without being full naked. He stated that he did not penetrate her but she was rubbing herself against him ‘stimulating’. He added that this only occurred once in his bedroom.
10. At a time when the [applicant] had left his address, between 18 November 2013 and 30 November 2014, he came back to her residence to babysit her and her siblings. He stated in his recorded interview that he was in the lounge room on his sleeping bag when the complainant came down wearing a dress and got on top of him emulating sex. He stated that he could not remember who pulled his pants down. He stated that he couldn’t recall whether the complainant was wearing underwear. He stated that the complainant tried to have sex with him but that there was no penetration of his penis of her vagina, citing his inability to become erect. He admitted that her vagina was rubbing against his penis for about 5-10 minutes before she got off and walked away.
11. The allegations arising from charges 1-3 above were put to the [applicant] during his Record of Interview on the 26 May 2017. Whilst the [applicant] denied penetrating the complainant with his penis, and denied penetrating her vagina with his finger as alleged in charge 1, he did concede that he ‘would have touched her at some stage … just gently … on the outside of her vagina’. He stated that he couldn’t remember his finger going into the hole or into the lips of the vagina. He was, however, alive to the possibility of that having happened.
Further Complaint
12. In late 2017, the complainant stopped attending counselling sessions. During the course of an argument with her mother, the complainant said ‘You don’t know what really happened. It didn’t just happen that one time.’ In early December 2018, the complainant made further disclosures to her mother that the [applicant] had offended against her. On the 13th of December 2018, the complainant participated in another VARE whereby she recalled further incidents of offending. These incidents are the subject of charges 4 and 5 above. The [applicant] was not interviewed in relation to these further allegations.
Plea and personal circumstances
The applicant, who had no prior convictions, was aged 64 years at the time of offending and was 70 when sentenced. He immigrated to Australia from India when 21, and married in 1970, the marriage ending in divorce in 2014. His relationship with his two children from that marriage broke down irretrievably as a result of the charges against him. The applicant has an excellent employment history, having worked in a variety of accounting roles. He has also participated in a number of volunteer activities, including teaching English and visiting nursing homes to provide pastoral activities as a Minister of Religion.
In the course of his plea, counsel for the applicant drew attention to the applicant’s history of clinical depression and his ‘advanced age’.[7] Counsel submitted that the applicant has ‘excellent’ prospects of rehabilitation, having been a ‘responsible and upstanding member of the community’ for the majority of his life. The principle of totality was important, counsel submitted, and the judge should avoid imposing a ‘crushing’ sentence. There was ‘substantial utilitarian value’ in the applicant’s pleas of guilty, counsel submitted, which also reflected ‘genuine remorse and insight into the wrongfulness of his conduct’. Although it was accepted that the applicant’s offending ‘warrants a term of imprisonment’, counsel submitted that protection of the community was of ‘limited relevance given the specific nature and circumstances of the offending’.
[7]Counsel relied on R v RLP (2009) 213 A Crim R 461, 476 [39].
Reasons for sentence
With some justification, in his reasons for sentence the judge described the applicant’s conduct as ‘despicable’. He had, the judge said, been a ‘trusted friend and neighbour’ who abused the trust placed in him. The maximum penalty for the offending, the judge observed, ‘reflects the Parliament’s intention that sentences imposed by the courts must deter others from offending in the way that [the applicant has], in order to protect children’. With respect to the pleas of guilty, the judge said:
… There was no contested committal. I treat you as having indicated that you would plead guilty at the earliest possible opportunity. For this you are entitled to a reduction in sentence because your pleas have saved the time and cost of a trial and importantly, they have saved the need for the young victim from having to give evidence against you and from being cross-examined about your vile and repugnant conduct towards her.
By your pleas of guilty, you have admitted responsibility for your offending and I also treat your pleas of guilty as signifying your remorse for your offending behaviour.
The judge assessed the applicant’s prospects of rehabilitation as being ‘good’ — he having led ‘an unblemished life’ — and said:
I accept this offending aside, you were a person regarded as being of excellent character and this offending does not fit with the way you have previously been regarded. It is entirely out of character, but that is probably why you were trusted to be alone with a child, which created the opportunity for you to offend.
Further, the judge accepted that he had to pay due regard to the applicant’s age — the applicant was likely to spend a considerable proportion of his remaining life in prison — and that he must avoid imposing a crushing sentence. Finally, the judge set out various ‘principles’ from RLP,[8] and said:
In arriving at an appropriate sentence here, I have so far as possible, have full regard to and applied the principles in RLP. As I said earlier, your offending was most serious for offending of this kind. Whilst I have had full regard to your age and health, and the fact you have no prior convictions and the fact you have pleaded guilty and appear to be remorseful, nevertheless the sentencing principles of just punishment, denunciation and general deterrence here required the imposition of a lengthy sentence.
Your offending in four separate incidents involving a young child aged under 10 is very serious and the sentence imposed must reflect the gravity of your behaviour. I believe that the sentences I will shortly impose achieve this result. Because I will sentence you to imprisonment on all charges, you fall to be sentenced on Charges 3 to 5 as a serious sexual offender. The prosecution appropriately in the circumstances has not asked that I impose a disproportionate sentence on those charges and I will not do so.
In sentencing you on these charges, I am mindful that I must have regard to the protection of the public as a first priority and I will sentence you on these charges as a serious sexual offender, without imposing a sentence that is disproportionate. The sentences imposed on Charges 3 to 5 are deemed to accumulate upon each other, unless I order otherwise.
[Defence counsel] submitted that I must have regard to appropriate principles of concurrency and totality, subject of course to the requirements of s 6B(2) of the [Sentencing Act 1991]. I will impose some accumulation and some concurrency as I deem appropriate. As I said before, I think it is unlikely you will again offend in this way. …
[8]Ibid.
Submissions in this Court
In this Court, counsel for the applicant conceded that general deterrence was a ‘paramount consideration’, and that ‘prior good character will generally be given less weight’. The sentence in the present case ‘is manifestly too long’, however, and fails to comply with the principles of totality and parsimony. It is ‘unreasonable and unjust’. Counsel contended that ‘manifestly insufficient weight’ was given to the applicant’s guilty plea. There is, counsel submitted, ‘an important public interest in recognising pleas of guilty, particularly in cases involving sexual offending generally as well as sexual offending against children’. The applicant’s pleas ‘spared the victim the trauma of having to give evidence at the trial’.
Furthermore, so counsel contended, the sentencing judge ‘gave manifestly insufficient weight to the applicant’s advanced age’, the total effective sentence and non-parole period being ‘crushing’.
Finally, counsel submitted that the judge ‘gave manifestly insufficient weight to the applicant’s lack of prior convictions and prior good character’. The applicant has no criminal record, and is ‘an individual with an impeccable history of good character, including personal and professional’, who has ‘excellent prospects of rehabilitation’.
In oral submissions, counsel for the respondent submitted that the sentence imposed might ‘fairly be regarded as sitting reasonably high in the range’ of sentences available for the offending, but did not fall outside it. The offences were serious, counsel submitted, since (among other things) there was a grave breach of trust, and a significant disparity in the ages of the applicant and complainant. Counsel submitted that the judge gave full weight to the applicant’s pleas of guilty; his ‘otherwise good character’; his prospects of rehabilitation; and his age. Having weighed the objective gravity of the offending and the applicant’s moral culpability against the matters in mitigation, the respondent’s counsel submitted, the sentencing judge came to the ‘inescapable conclusion’ that the sentencing principles of just punishment, denunciation and general deterrence required the imposition of a lengthy sentence. In view of the nature and seriousness of the offending, and the ‘relatively moderate’ factors in mitigation, the individual sentences imposed, the resulting total effective sentence, and the non-parole period cannot be said to be manifestly excessive.
Discussion
As was made plain in Dinsdale, manifest excess is a conclusion. Excess is, or is not, plainly apparent. A sentence is, or is not, unreasonable or plainly unjust.[9] Seldom will a conclusion of manifest excess admit of much elaboration, save to state the excess has resulted from the wrong kind of sentence being imposed, or because the sentence imposed is manifestly too long. When a claim is made that a sentence is manifestly excessive, the members of the appellate court will weigh for themselves all relevant aggravating and mitigating features and intuitively synthesise each factor bearing on the exercise of the sentencing discretion. The appellate court must balance the often incommensurable factors bearing on the exercise of the sentencing discretion, those factors frequently pulling in different, conflicting and contradictory directions.[10] Appellate intervention on the ground of manifest excess is not warranted, however, unless, having regard to all of the relevant sentencing factors — including the degree to which the impugned sentence differs from sentences that have been imposed in cases which are truly comparable — the appellate court is ‘driven to conclude that there must have been some misapplication of principle’.[11]
[9]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[10]See Elias v The Queen (2013) 248 CLR 483, 494–5 [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 433 [4] (Kiefel CJ, Bell and Keane JJ); 452 [79] (Gageler and Gordon JJ) (‘Dalgliesh’).
[11]See R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); Dalgliesh, 447 [59] (Kiefel CJ, Bell and Keane JJ). See also DPP v Zhuang (2015) 250 A Crim R 282, 295–300 [39]–[49]; DPP v McInnes [2017] VSCA 374, [75].
Balancing for ourselves all relevant features bearing on the exercise of the sentencing discretion, we are driven to the conclusion that the sentence imposed on the applicant is manifestly excessive. We consider that, in particular, insufficient weight must have been given to his pleas of guilty (indicated ‘at the earliest possible opportunity’); his remorse; his previous good character; his age; and his prospects of rehabilitation.
Plainly, the applicant’s early pleas of guilty — which had significant utilitarian value and were accompanied by remorse — deserved to be afforded significant weight.
Further, although the applicant’s counsel in this Court conceded that previous good character is to be afforded less weight in the case of sexual offending against children than in cases involving other kinds of offending — so much might be accepted as a general proposition — it is not the case that previous good character is to be given no, or wholly insignificant, weight. Indeed, McHugh J made clear in Ryan,[12] and this Court made clear in SD,[13] that even in cases of sexual offending against children previous good character remains a mitigating factor that the sentencing judge is bound to consider. Sentencing is not a mathematical process.[14] Various factors have to be weighed, the ‘otherwise good character’ of an offender being one of them.
[12]Ryan v The Queen (2001) 206 CLR 267 (‘Ryan’).
[13]SD v The Queen (2013) 39 VR 487, 494 [30] (Ashley, Redlich and Priest JJA).
[14]Ryan, 278 [33]–[34] (McHugh J).
In the present case, beyond observing that the applicant was ‘a person regarded as being of excellent character’, and that the offending ‘does not fit with the way [the applicant had] previously been regarded’, being ‘entirely out of character’, the judge did not spell out the relevance of the applicant’s previous good character. But, quite clearly, the applicant’s previous good character had a bearing on his prospects of rehabilitation — which the judge assessed to be ‘good’ — and upon any perceived need to protect the community.
Moreover, accepting that old age or ill health ‘are not determinative of the quantum of sentence’, and ‘do not justify the imposition of an unacceptably inappropriate [sic] sentence’,[15] the applicant’s age remained a mitigatory feature that had to be afforded some weight. Although the judge said that he ‘had full regard to [the applicant’s] age and health, and the fact [he had] no prior convictions and the fact [he had] pleaded guilty and appear[ed] to be remorseful’, it appears to us that the judge must have given too much weight to ‘the sentencing principles of just punishment, denunciation and general deterrence’, which, the judge said, ‘required the imposition of a lengthy sentence’.
[15]RLP, 476 [39].
Finally, our distinct impression that the individual sentences imposed in this case, the total effective sentence (produced by the orders for cumulation) and the non-parole period are manifestly excessive, is confirmed by sentences imposed in a number of roughly comparable cases.[16] In so saying, we are mindful of what this Court said in Zhuang, and of later observations made by the High Court in Dalgliesh.
[16]For example, see DPP v West [2017] VSCA 20; Ward (a pseudonym) v The Queen (2017) 54 VR 68; Davis v The Queen (2016) 55 VR 1; and DPP v Clunie (a pseudonym) [2016] VSCA 216; each of which involved the sexual penetration of a child under 12 years, where the available maximum penalty was 25 years’ imprisonment.
As the use to be made of comparable sentencing cases, this Court observed in Zhuang:[17]
Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished.[18] Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. A general overview of sentences imposed for offences of a similar character may, however, play a part in informing the instinctive synthesis,[19] particularly insofar such an overview may provide a general guide to current sentencing practices.
The selection of a sentence involves the exercise of a judicial discretion which is informed by the nature of, and circumstances in which, the offence was committed; and by the character, antecedents and circumstances of the offender. …
[17]DPP v Zhuang (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA) (citations as in original).
[18]Director of Public Prosecutions (Vic) v Adajian [1999] VSCA 105 at [28] (Callaway JA).
[19]R v Giordano [1998] 1 VR 544 at 549 (Winneke P); cf Director of Public Prosecutions (Cth) v Edge [2012] VSCA 289 at [60] (Priest JA).
In a similar vein, Gageler and Gordon JJ observed in Dalgliesh:[20]
Sentences are not binding precedents,[21] but are merely ‘historical statements of what has happened in the past’.[22] As was said in Hili v The Queen, ‘[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits’[23] (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.
[20]Dalgliesh, 454 [83] (citations as in original).
[21]Wong (2001) 207 CLR 584 at 605 [57].
[22]Hili (2010) 242 CLR 520 at 537 [54] quoting Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at 71 [304].
[23](2010) 242 CLR 520 at 537 [54]. See also Director of Public Prosecutions (Vic) v OJA (2007) 172 A Crim R 181 at 196 [31].
Gageler and Gordon JJ earlier said that[24]
the sentencing exercise requires the sentencing judge to identify and balance all relevant factors — factors that may point in different, conflicting and contradictory directions — and to make a judgment as to the appropriate sentence in the circumstances of the case.[25] Sentencing an offender is not a mechanical or mathematical exercise. And it is a task done in accordance with applicable statutory provisions governing sentencing.[26]
[24]Dalgliesh 452 [79] (citations as in original).
[25]Wong v The Queen (2001) 207 CLR 584 at 611 [75]; Markarian v The Queen (2005) 228 CLR 357 at 373-375 [37], 378 [51]; Muldrock v The Queen (2011) 244 CLR 120 at 131-132 [26].
[26]Markarian (2005) 228 CLR 357 at 371 [26]; Elias v The Queen (2013) 248 CLR 483 at 493 [25].
It was made clear in Dalgliesh (among other things) that current sentencing practices cannot be the determinative or controlling factor in the exercise of the sentencing discretion,[27] and that reasonable consistency in the application of relevant legal principles does not require adherence to a range of sentences that is demonstrably contrary to principle.[28] The Court emphasised that the imposition of a just sentence in a particular case is an exercise of judicial discretion concerned to do justice in that case.[29] Examination of sentences imposed in comparable cases may, however, inform the sentencing task.
[27]Dalgliesh, 444 [48], 450 [68] (Kiefel CJ, Bell and Keane JJ); 452 [79], 453–4 [82], 454 [84] (Gageler and Gordon JJ).
[28]Ibid 445 [50] (Kiefel CJ, Bell and Keane JJ).
[29]Ibid 444–5 [49] (Kiefel CJ, Bell and Keane JJ).
As we have said, our review of roughly comparable cases confirms our view that the sentence in this case is manifestly excessive and must be set aside.
Conclusion
We would grant leave to appeal against sentence; allow the appeal; and resentence the applicant to a total effective sentence of nine years’ imprisonment, with a non-parole period of six years, in accordance with the following table:
Charge Offence Sentence Cumulation[30] 1 Sexual penetration of a child under 16 [digital-vaginal penetration] 4 years 1 year 2 Attempted sexual penetration of a child under 16 3 years 1 year 3 Sexual penetration of a child under 16 [digital-vaginal penetration][31] 4 years 1 year 4 Sexual penetration of a child under 16 [lingual-vaginal penetration] 4 years 1 year 5 Sexual penetration of a child under 16 [penile-oral penetration] 5 years Base Total effective sentence: 9 years Non-parole period: 6 years [30]With respect to the first two charges, the legislative direction in s 16(1) of the Sentencing Act 1991 is that any sentence passed on them is to be concurrent with other sentences unless otherwise directed. Given that the applicant is to be sentenced as a serious sexual offender on charges 3, 4 and 5, however, there is a legislative direction in s 6E of the Act that sentences passed on them are to be served cumulatively unless otherwise directed. Strict compliance with the legislative regime is thus cumbersome.
[31]Pursuant to Part 2A (ss 6A to 6F) of the Sentencing Act 1991, the applicant was sentenced as a serious sexual offender on charges 3, 4 and 5.
All other ancillary orders made by the County Court will be confirmed, and we will make an appropriate direction as to pre-sentence detention.
Pursuant to s 6AAA of the Sentencing Act 1991, we declare that but for the plea of guilty, we would have sentenced the appellant to a total effective sentence of 12 years’ imprisonment, with a non-parole period of eight years.
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