(a) uncontroversially, to deny the offender any degree of leniency which might have followed had the charged offences been isolated episodes;
(b) to allow the injury, emotional harm, loss or damage to the victim to be assessed globally, as resulting from the course of conduct, rather than discriminating (if that were possible) between degrees of harm caused by the charged offences and the whole of the harm;
(c) to put each of the individual offences into a higher range of objective seriousness than would otherwise be the case, and
(d) to increase the degree to which the sentences are accumulated.
55 It should be noted at once that none of these steps would permit the imposition of a penalty beyond the maximum sentence permitted for each of the charged offences.
56 The real issue in this case is whether it is appropriate to take a course of conduct into account, to the extent it has been admitted, in order to place the individual offences in a higher range of objective seriousness than would otherwise be the case. In Victoria, that approach appears to have been accepted on the basis that it "enables the offence to be seen in its full circumstantial context": see, eg, Director of Public Prosecutions v EB [2008] VSCA 127; 186 A Crim R 314 at [15] (Nettle JA, Buchanan and Redlich JJA agreeing).
57 In CJK, at [58] Warren CJ expressed the view that the sentencing judge was entitled to look at the whole of the conduct and continued:
"If those circumstances render the offence more serious and lead to a higher sentence than would otherwise have been imposed in the absence of the representation, then it is not unreasonable or erroneous to observe it as an aggravating feature, even if only 'colloquially'."
58 Her Honour then referred to the comments of Spigelman CJ in JCW at [68] which appear to restrict the use of the broader course of conduct to rejection of a claim to mitigation. She expressed the view that this was not in accordance with the law in Victoria: at [60]. Her Honour also noted the "sound policy reasons" for the judge to look at the whole picture of offending in order to ensure "the impact of the victim of that count is adequately reflected in the sentence imposed": at [61]-[62].
59 In Fisher v R [2008] NSWCCA 129 Simpson J (McClellan CJ at CL and Hidden J agreeing) referred to the statement in JCW at [68] and remarked, at [19], that Spigelman CJ had "concluded that, even where such conduct is admitted, it is appropriate to be taken into account only for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence; and not as a circumstance of aggravation": see also Haeusler v The Queen (19 July 1996, WASC, CCA, unrep) (Ipp and Wallwork JJ, Owen J agreeing).
60 In Fisher, reference was made to s 21A(2) of the Sentencing Procedure Act, but without reference to paragraph (m) and without reference to the fact that JCW pre-dated the commencement (on 1 February 2003) of s 21A.
61 There are three aspects of JCW which need to be taken into account. First, it is not entirely clear that JCW stands for the proposition stated explicitly in Fisher in the passage set out above, or for the similar proposition identified by Warren CJ in CJK. It is clear that in JCW the nature of the material to be taken into account was uncertain; there was no clear admission of particular incidents. Therefore, Spigelman CJ treated the more general question as not requiring a definitive answer, stating at [63]:
"In my opinion, to use such matters as a circumstance of aggravation, if permissible at all, requires, at the least, sufficient particularisation so that the sentencing judge can tell with precision what range of conduct the charges admitted to be 'representative' are in fact representative of. The extent, if any, to which an admission, other than in the context of the statutory procedure to which I have referred above, can be taken into account as a matter of aggravation, should be carefully confined."
62 A similar and consistent caution is expressed at paragraph [68] which, to be properly understood, must be read in context with the preceding paragraphs.
"66 It is not, however, necessary, to express a concluded opinion about whether, and if so how, admissions of uncharged offences can be taken into account by way of aggravation, other than pursuant to an express statutory scheme. (In my opinion, the reasoning in Siganto suggests, by way of analogy, that such use is not permissible). The reason why it is not necessary to decide the issue in this case is because the admission on the part of the Applicant did not have the necessary degree of precision.
67 In the present case there was an express admission on the part of the Applicant that the particular counts with respect to daughter DW were 'representative'. That admission extended to an admission of the general nature of the relationship as set out in the uncontested evidence of DW. I do not, however, conclude that the admission extended to any, let alone each, of the specific allegations contained in DW's evidence.
68 An admission of this general character is appropriate to be taken into account for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence. It is not, however, in my opinion, appropriate to be taken into account as a circumstance of aggravation, if that be permissible at all."
63 It may thus be seen that his Honour was not addressing (and was careful not to address) the situation where specific conduct was identified and was the subject of an appropriate admission, or proof. Although his Honour clearly had doubts as to the extent to which, even in such a case, particular matters could be taken into account, that was not determined in JCW.
64 Secondly, it is important to consider how such specific matters might operate in relation to particular aggravating factors identified in s 21A. That issue has already been noted in relation to paragraph (m) and, in relation to the effect on the victim, referred to in paragraph (g).
65 Thirdly, it is necessary to take into account the extent to which the enactment of s 21A(2) has affected the reasoning in JCW, if at all. The effect may be limited, because the section expressly provides that the court is "not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so": sub-s (4).
66 Finally, it may be noted that the doubt expressed in JCW as to whether, and if so how, an admission of an uncharged offence can be taken into account by way of aggravation, other than pursuant to an express statutory scheme, arose from the reasoning in Siganto v The Queen [1998] HCA 74; 194 CLR 656. The analogy of Siganto must be subject to a qualification. That case drew a distinction between a reduction in an otherwise appropriate sentence because of a plea of guilty and treating a plea of not guilty as an aggravating circumstance. The distinction is readily applied because the plea entered by an accused is to be differentiated from the objective circumstances of the offence. Thus, an otherwise appropriate sentence may be identified without regard to the plea, following which an appropriate reduction may be allowed on account of a plea of guilty. That exercise is not so easily applied in relation to the surrounding circumstances of a crime. Nor is it just that "the distinction between refraining from taking something off and adding something on when there is no fixed normal penalty may seem, in some cases, to approach the metaphysical", as suggested by Bray CJ in Reiner (1974) 8 SASR 102 at 105, quoted in JCW at [17]. Rather it is because the surrounding circumstances are themselves relevant to the objective seriousness of the offence and, possibly, the subjective circumstances of the offender. It is not, therefore, possible to identify an appropriate sentence before taking them into account.
67 The fact, which is not in dispute, that the applicant committed numerous additional offences, similar to those charged, is relevant to his state of mind in committing the offences charged, his motive, his sense (or absence of sense) of wrongdoing at the time, his willingness to control inappropriate urges for sexual gratification, the effects on the complainant of his conduct and by way of explanation of the fact that the conduct went undetected for a significant period.
68 Even if these offences were understood not each to be an isolated offence, their objective seriousness did not place them above the middle range of offending of the kind in question. In my view the fact that they constituted part of an on-going course of conduct places them in the higher range, although certainly not in the worst category of cases.
Application of principles
69 In relation to the first offence, and partly because it was the first offence, absent the surrounding circumstances, it would not have warranted a penalty in excess of half the maximum, namely 2.5 years. However, taking into account the preceding circumstances, described by the sentencing judge as "grooming", the nature of the offence becomes more serious. In my view a sentence of three years imprisonment properly reflects the objective seriousness of the offence. Because of the early plea, and for the reasons identified by the trial judge which are not challenged in this Court, it is appropriate to reduce the sentence by 25%. That would give a notional sentence of 27 months. Because of the finding of special circumstances, I would specify a non-parole period of two-thirds of that amount, allowing an increase in the balance of the term from one-third of the non-parole period to one-half of that period. Accordingly, the non-parole period should be fixed at 18 months. Because any balance of the term will inevitably be covered by a further sentence of mandatory imprisonment for one or more of the other offences, it is appropriate to make that a fixed term. Accordingly the applicant should be sentenced to a period of 18 months imprisonment by way of a fixed term commencing on 4 August 2007 and expiring on 3 February 2009.
70 As has been noted, counts 2-8 each involved aggravated sexual intercourse of a child between 10 and 16 years, for which a maximum penalty of 10 years imprisonment is provided by s 66C(2) of the Crimes Act. Counts 2 and 3 involved digital, rather than penile, penetration and were properly treated by the sentencing judge as of lesser seriousness than counts 6, 7 and 8, each of which involved penile penetration. Taken without reference to the surrounding circumstances, counts 2 and 3 involved unremarkable offences of that kind and would not have warranted a term of imprisonment in excess of four years. Given the surrounding circumstances, a more serious view should be taken of the offences and a sentence of five years imprisonment should be considered appropriate. In taking that view, no specific consideration is given to the offences numbered 1, 2 and 5 on the Form 1, which occurred during 1996, being the same year as counts 2 and 3. Undertaking the same calculations and for the same reasons as explained in relation to count 1, a fixed term of 2.5 years should be specified in respect of counts 2 and 3. (Questions of dates of commencement and expiry will be identified when considering the extent of accumulation which is appropriate in relation to these and other counts.)
71 Counts 4 and 5 involved respectively fellatio and cunnilingus. The former count is more serious, both because it required the complainant to play an active role and because there was a degree of persuasion required, she having expressed disgust at the proposed conduct. Count 4 is clearly a mid-range offence, disregarding the surrounding circumstances, the degree of persuasion required involving no physical violence. However, the surrounding circumstances render the offence more serious, warranting a sentence of six years. Once the deduction for the plea is taken into account and allowance is made by way of adjustment of the relationship between the balance of the term and the non-parole period, the resulting sentence is a fixed term of three years.
72 In relation to count 5, there is another episode of cunnilingus referred to on the Form 1, but there are no clear admissions of any other conduct of that kind. To avoid any risk of double punishment, the offence should be treated as one in the middle range, warranting a sentence of four years. According to the calculations already undertaken, that would give rise to a fixed term of two years imprisonment.
73 It is convenient to deal next with counts 7 and 8, each of which involved penile penetration. Count 7 involved an element of aggravation in that, prior to sexual intercourse, the applicant plied the complainant with liquor. Following the sexual activity, the complainant went to bed and vomited, a response which may properly be attributed to the liquor. Nevertheless, the circumstances involved an element of aggravation taking the offence above the middle of the range and justifying a sentence of six years imprisonment. On the approach adopted above, that will translate into a fixed term of three years imprisonment.
74 Count 8 involved a further case of sexual intercourse. By that stage, the applicant was 14 and a half years of age and thus older than on the previous occasions, but still below the age of 16 years specified as an element of the offence. Once the surrounding circumstances are taken into account, the applicant is not entitled to any degree of leniency on that basis, although counsel submitted he was. More importantly, the sexual intercourse occurred with her sitting on his lap and only continued for about a minute; he did not ejaculate. The short period of the event place this offence below the middle range for such crimes. Taking into account the surrounding circumstances a period of three years imprisonment is warranted, translating into a fixed term of 1.5 years.
75 There remains count 6, which involved a case of penile vaginal intercourse. The complainant was just 14 years old at the time of the offence. The offence involved the offender lying on top of the victim and ejaculating inside her. In terms of objective seriousness, it may be treated as a mid-range offence. Chronologically, it appears to have been the first incident of penile intercourse.
76 There were six offences of varying degrees of seriousness included on the Form 1. It is not necessary to describe them in detail. They extended over a period from February 1996 to late 1998. Individually, they would have carried similar sentences to those for similar counts. Taking those matters into account, a sentence of eight years imprisonment would be justified in respect of count 6. However, that sentence should be reduced by 25% on account of the guilty plea, giving a full term of six years. The appropriate non-parole period is four years. That being the longest sentence, it is appropriate that it be imposed last and include a balance of the term of the sentence of two years.
Accumulation
77 The structure of the sentences imposed by the sentencing judge involved count 1 being wholly concurrent with count 2 and count 5 being wholly concurrent with count 6. Otherwise each of counts 3, 4, 6 and 7 were accumulated by commencing one year after the commencement of the previous count, whereas count 8 although involving a non-parole period of three years, was accumulated by commencing four years after count 7, but the non-parole period was wholly concurrent with the fixed terms on counts 6 and 7. The effective period of mandatory imprisonment was 11 years.
78 The total of the proposed fixed terms and the non-parole period would be 20 years if each were accumulated on the end of the preceding count. There should be a degree of accumulation for each, so as to require the applicant, in rough terms, to serve not more than 50% of each fixed term or non-parole period independently of any other sentence. That will require a greater degree of concurrency with count 6. The proposed effect will be to require a mandatory term of nine years six months imprisonment with a balance on the last sentence of two years, giving a total period of 11 years, six months. The sentence for the first offence will commence on 4 August 2007 with the result that the applicant will be eligible for parole on 3 February 2017.
79 Whilst that constitutes a lengthy period of mandatory imprisonment, the reduction of one year, six months from the term imposed by the sentencing judge removes any basis for argument that the sentences either individually or in their totality are manifestly excessive.
80 I propose the following orders: