The effective encompassing sentence amounted to custody during fixed terms/non parole period of 5 years 3 months commencing on 9 December 2005 and expiring on 8 March 2011 with a balance term of 4 years from 9 March 2011 to 8 March 2015. The earliest date of eligibility for parole was specified as 8 March 2011.
11 The first ground of appeal noted the anticipated quashing of the conviction and sentence on count 4 and argument referred to the amendment to s 59 of the Crimes (Sentencing Procedure) Act 1999. That amendment was facultative and vested a power to avoid injustice where there has been a quashing of a sentence which was to be served concurrently or partially concurrently with another sentence. The problem had been identified in R v O'Donoghue (No 2) [2001] NSWCCA 495. Section 59 as amended does not touch upon the merits of any decision. The quashing of the sentence on count 4 invites re-exercise of sentencing discretion but it does not inevitably follow that there must be a reduction in the totality of term for the appellant's overall criminality.
12 It can be observed that the sentence of two years fixed term imposed on count 4 was directed to be served between 9 June 2007 and 8 June 2009, during the whole of which period the appellant was required to serve concurrently the final six months of the sentence on count 3 (from 9 December 2006 to 8 December 2008) and the whole of the sentence on count 5 (9 December 2007 to 8 June 2009). No part of the overall term of imprisonment was required to be served by the appellant exclusively in relation to count 4.
13 It is, however, a consequence of the quashing of the conviction and sentence on count 4 that this Court should revisit the issue of sentence with particular attention to the principle of totality. It will be convenient to return to this ground in that context after consideration of other independent grounds.
14 The second ground asserted that the sentencing judge erred in failing to take into account that counts 1 and 2 could have been dealt with in the Children's Court.
15 Whether they would have been in fact dealt with there would depend, inter alia, upon the appellant's crimes having been detected before he attained the age of twenty one: Child Welfare Act 1939 s 20(2); Children (Criminal Proceedings) Act 1987 s 28(1)(d).
16 The offence charged as count 1 occurred when the appellant was aged in the range (approximated by a few days) between seventeen years six months and seventeen years eight months and count 2 when he was aged between seventeen years eight months and seventeen years eleven months. His Honour was alert to this circumstance and included the following in his remarks on sentence:
"In relation to offence 1 the Crown submitted that I would find this was a worst case. I have given careful consideration to that submission but I am unable to agree with that submission. Whilst it is still an extremely serious offence there are still, in my view, aspects of this offence which do not contain factors that you would expect to find in a worst case such as planning and where there was substantial or indeed any physical injury or substantial emotional harm.
I am unable to find, with respect to this offence, that there was any planning. I can only find that this offence was a spontaneous, unplanned criminal act. The offender gave evidence before me that he did not set about planning any of these offences; that they all occurred because of his inability to control his sexual urges. But whilst I do not find that the offence can be classified as falling within the worst case category I do find that it falls in the upper range of objective seriousness for offences of indecent assault.
However, I cannot disregard the youth of the offender and the fact that technically at this time he was in law still a child. That must call, under the principles pertaining to the sentencing of young people, the principles of which are well established and do not require me to repeat them, does call for some moderation of the sentence. Further his prior good character should be taken into account by, at that time, this being the first offence, and that that prior good character should be taken into account by way of some further moderation of the sentence.
Similarly, in my view, offence 2 falls in the upper range of objective seriousness involving, as it does, serious physical force and coercion against the victim. The sexual intercourse hurt the victim and, again, it is relevant to take into account, in assessing the objective seriousness of the offence, that the victim was only eleven years of age at the time. However, again, like offence 1, the youth of the offender does call for some moderation of the sentence."
17 It is apt to recapitulate that the offence in count 1 was committed when the appellant had tied the hands of his eleven year old sister behind her back to a fence in order to facilitate the sexual assault upon her. The agreed facts revealed that he had used rope which was available for restraining cattle. The digital penetration constituting the offence was accompanied by his exposing his penis and rubbing his groin area against the victim. Her protests that she would report what happened to her grandmother were met with his response that he would accuse her of lying.
18 Count 2 involved an act of penile/vaginal intercourse with the same victim who was still only aged eleven at the time.
19 It would have been hardly surprising, had these offences come to light earlier, if, as was conceded to be an available option, the appellant was directed to be dealt with according to law rather than as a child.
20 It was not suggested that the sentences imposed exceeded the jurisdiction of the District Court. Nor was it submitted that his Honour erred in assessing count 1 as "an extremely serious offence" and count 2 as falling "in the upper range of objective seriousness."
21 As the remarks show, his Honour was well aware of the need to consider the appellant's juvenile status when these offences took place. He did not specifically state that he adverted to the limit of sentencing power of the Children's Court within which the appellant may or may not have been dealt with. His express statement of consciousness of the need for moderation of sentence renders the assertion of error implicit in this ground untenable.
22 The third ground contended that the sentence for count 2 was itself manifestly excessive, having regard to the sentencing range "of the time."
23 In support of this ground, counsel for the appellant drew attention to some statistical material. This Court has constantly warned about the caution that needs to be applied when seeking to utilize statistics. The obvious impediment is the lack of detail about the cases which constitute any survey. The offence of carnal knowledge could be committed, and frequently was, by youths upon females of comparable age who were engaging in consensual sexual intercourse. Reference to Romeo and Juliet in that context was not unknown and a significant number of non custodial sentences (as reflected in the statistics) would be expected to derive from such circumstances.
24 The appellant's offence charged as count 2 was in a wholly different category involving intercourse by a seventeen and a half year old with his sister of eleven years of age. It was not submitted that his Honour was unaware of the need to sentence in accordance with any extant pattern at the time of the offence, insofar as such a pattern could be ascertained.
25 I would reject this ground.
26 The fourth ground complained that the penalty imposed upon count 10 was excessive. The argument drew attention to his Honour's remarks:
"I assess offences 8 and 10 as falling in the middle of the range of objective seriousness. Although they involve digital penetration they did involve physical force and coercion."
27 The sentence for count 8 was, as above detailed, a fixed term of two years and six months imprisonment, whereas the sentence for count 10 consisted of a non-parole period of two years with a balance term of four years. As counsel for the appellant pointed out, no reason was given for the discrimination between the sentences on these counts which were found to be based upon similar facts.
28 It is recognized that a judge must fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality: per Gummow J in Pearce v The Queen (1998) 194 CLR 610 at p 624; Mill v The Queen (1988) 166 CLR 59. However, the power of this Court to intervene is dependent upon a conclusion that some other, less severe, sentence should be imposed: Criminal Appeal Act 1912 s 6.
29 In the present instance, his Honour imposed fixed terms on every count except count 10, the commencement date of which was three years four months (9 March 2009) after the date when initial custody commenced (9 December 2005). Whilst there is scope for criticism of the structure of which his Honour has applied, the ultimate question is whether this Court should intervene and, in some way, reduce the effective custody to be undergone by the appellant.
30 As earlier noted, the quashing of count 4 provokes a reconsideration by this Court. The progress of the appellant whilst in custody which is evidenced in his and his solicitor's affidavit and some circumstances attested to by Mr Murray in an affidavit filed by the Crown should be given account and the guarded optimism about the appellant's prospects of rehabilitation of which the sentencing judge spoke, should be more favourably now assessed.
31 Nevertheless, the appellant should receive sentences which appropriately reflect sexual depredation in a varied scale of seriousness against four different victims, all of whom were members of his immediate or extended family group. These depredations extended over more than twenty years and were visited upon victims sequentially. It does not aggravate, but it does not attract leniency, that as long ago as 1981 he did not respond to parental discipline nor that in 2000 when some of his conduct became known, he made no more than a token effort to seek counselling.
32 As earlier stated, the sentence on count 4 which is now to be quashed did not impose any additional custody to other sentences which were being served concurrently.
33 No purpose would be served in engaging in a restructuring of the sentences to achieve the same overall result.
34 In my view, no less severe sentence than an overall imposition consisting of an effective non-parole period of five years and three months and a balance term of four years is warranted in law.
35 I propose the following: