Criminal law and procedure - Appeal - Sentence - Intrafamial sex offences - Pre­sentence and psychological reports - Errors of fact and opinion - Counsel not seeking to cross­examine authors nor otherwise challenge contents - Denial of procedural fairness - Extent to which reports relied upon by sentencing Judge - Whether miscarriage of justice - Whether different sentence should have been passed

Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530

Langridge v The Queen (1996) 17 WAR 346

Mitchell v The Queen, unreported; CCA SCt of WA; Library No 980720; 14 December 1998

Norris v The Queen (2001) 121 A Crim R 227

O'Keefe v Tankard [1989] VicRp 34; [1989] VR 371

R v Carlstrom [1977] VicRp 44; [1977] VR 366

R v Dowlan (1998) 1 VR 123

R v Jensen [1996] QCA 182; (1996) 87 A Crim R 241

R v Lucky (1974) 12 SASR 136

R v Seres [1980] Qd R 29

R v Webb [1971] VicRp 16; [1971] VR 147

Stanton v Dawson (1987) 31 A Crim R 104

Woods v The Queen (1994) 14 WAR 341

1 MALCOLM CJ: In my opinion, while I would grant the applicant leave to appeal against sentence, I would dismiss the appeal. I have reached that conclusion for the reasons to be published by Roberts-Smith JA.

2 ROBERTS-SMITH JA: This application for leave to appeal against sentence raises an important point about sentencing procedure.

3 On 11 May 2004 in the District Court at Perth, the applicant pleaded guilty before her Honour the Chief Judge of the District Court to three counts of sexual offences upon a child under the age of 16 and who was the applicant's de facto child.

4 Count 1 charged an offence that between 31 March and 24 November 2003 the applicant sexually penetrated the child by penetrating her vagina with his penis. Count 2 was that on the same date and place he indecently dealt with the child by kissing her breasts and nipples. The third count was that on a date unknown between 31 March and 24 November 2003 he sexually penetrated the child with his penis.

5 The self-represented applicant was sentenced to 3 years' imprisonment in respect of the first and third counts and 12 months' imprisonment in respect of the second. The sentence on count 3 was ordered to be served cumulatively upon that in respect of count 1. The aggregate sentence was accordingly one of 6 years' imprisonment.

6 The applicant filed a notice of application for leave to appeal against sentence dated 28 May 2004, the sole ground being that the learned sentencing Judge "... stated no remorse or care of my victim. This is not correct".

7 A handwritten minute of proposed amended grounds of application was filed on 18 August 2004. The proposed new grounds were:

"1. Certain information in the pre-sentence report was incorrect.

2. No challenge or defence from my Legal Aid counsel.

3. The Judge sentenced me on a wrong assumption of fact."

8 The applicant had pleaded guilty by way of the fast-track procedure.

9 The facts were outlined by the prosecutor. Her Honour was told that the complainant was 13 years of age at the time of the offences. The applicant was 48 years of age and married to the complainant's mother, so

being the complainant's stepfather. The offences occurred in the family home where the complainant, her mother and the applicant lived.

10 According to the complainant's statement (tendered to the Court as part of the prosecution brief), on one occasion between 1 April and 24 November 2003 whilst the complainant's mother was at the shops, the applicant came into her bedroom where she was watching television. He sat down next to her on her bed. He pushed her gently with both hands on her chest, laying her down on the bed. He did not say anything. She was feeling unsure because nothing like that had ever happened before. The applicant then stood up and using both of his hands, lifted her skirt over her chest. He grabbed the top of her knickers with his other hand, lifted her slightly off the bed so he could pull them down and removed them entirely. He then undid his own pants and after taking off his shoes, removed them. He then took off his underwear and knelt down on the bed between the complainant's legs. He was holding her hands near her shoulders. She did not know what was going to happen and was scared.

11 The applicant stuck his penis in the complainant's vagina. It hurt. It was really painful and she had not felt anything like it before. She said "He was pretty far in and it felt horrible". He kept his hands on hers and was lying on her, moving up and down. She tried to get him off. She tried to kick him but he was too strong. He then began kissing her chest above her breasts and then started kissing her breasts and nipples using his tongue.

12 At that point, according to the complainant's statement, her mother returned home. The complainant did not hear the car or the door. Her mother walked into her bedroom and the complainant opened her eyes. She saw that her mother was angry, her face was quite "scrunched up" and she said to the applicant "What are you doing?". The applicant quickly pulled his penis out of the complainant's vagina and got up off the bed. He put his trousers back on and went outside with the complainant's mother. She put her knickers back on but stayed in the bedroom crying. Her vagina was painful.

13 She could not hear what her mother and the applicant were saying because she was crying too much. They stayed outside for a long time and then her mother came back into her room and asked whether she was alright and whether she was hurting. She told her mother she was not alright and she was hurting. Her mother said she could come out now. They went out to the kitchen and the applicant was sitting at the kitchen table crying. He said "I'm sorry. I didn't mean it".

14 The complainant sat across from him at the table when he said that. She was crying too but did not say anything.

15 The applicant said "I'm going to go to the police and tell them that I forced you to have sex with me". However, the complainant said her mother said "Don't go yet. We'll try and work it out". She said they all tried to work it out over the next couple of weeks, but it happened again about 2 months later around July 2003. She was still in year 8 at school and doing her normal school work. It was night time on a Sunday and dark outside. She was in her room watching "The Simpsons" on television about 7.30 pm. The complainant's mother had gone to a "hens' night". The complainant and the applicant were home alone.

16 The applicant came into her room. He turned the light and the television off. It was dark. She did not know what was happening and felt sick. He did not say anything. She asked him what he was doing but he did not reply. He went over to her bed and stood in front of her. He unbuttoned his pants. She tried to stop him, but he held her down on the bed with one hand whilst he undid his pants with the other. He then removed her pants and knickers and put them on the bed next to her. She says she did not want to know what was happening so she closed her eyes and kept them closed. He undid his button and zip and removed his pants, throwing them on the floor, together with his underwear.

17 The applicant pulled the complainant's legs up and inserted his penis into her vagina. It hurt as much as the first time. He held her down with his arm and although she was trying to move away from him she could not. He pushed his penis all the way in and it went in as far as the first time. It hurt. He was making the same up and down movements and a weird moaning noise.

18 That went on for a few minutes until she asked him to stop and he said "Fine. Whatever". She says he got angry and stopped moving inside her. He removed his penis, put on his jocks and pants and went out the door. She got dressed and sat in her room crying. She later heard him have a shower and go to bed.

19 When her mother was driving her to school the next day the complainant told her mother about this second occasion. She says her mother said she would go home and talk to the applicant and would "see what would happen".

20 The complainant wanted her mother to make the applicant move out but she did not tell her that because her mother loved the applicant and would have been upset with her. It appears that the complainant's mother later told the complainant's natural father about what had happened and he reported it to the police.

21 When sentencing the applicant the learned Chief Judge had before her a report from a psychologist dated 20 April 2004 and a pre-sentence report dated 7 May 2004. It is the content of those reports and the apparent reliance upon them by the learned sentencing Judge of which the applicant complains.

22 In her report the psychologist commenced with the observation that the applicant had a tendency to be abrupt and abrasive when discussing his offending behaviour and that he presented as depressed and resentful about being in prison, reflecting his disgust for being housed in the protection wing with other sex offenders.

23 Under the heading "Offending Behaviour" the psychologist wrote that:

"... Although accepting responsibility for his offending behaviour overall, [the applicant] was adamant that he and the victim were in love with each other. Claiming the offences happened by mutual consent [the applicant] was at pains to point out that he did not wish to blame the victim in any way and that she had already suffered enough by him being incarcerated. [The applicant] claimed the relationship between the pair was not driven by sexual interest on his part but rather that under intense pressure from the victim [the applicant] agreed to engage in sexual contact with her.

Denying any sexual attraction to young girls it is evident that [the applicant] does not see the victim as a child but rather a person he fell in love with whose age was below the legal age of consent and in the context of a familial relationship. [The applicant] clearly holds a grossly distorted view of his offence as he failed to recognise that despite his claim of having fallen in love with the child such behaviour is not typical of adult men. [the applicant] to some extent justified his offence by stating that the victim did not look 13 and was more mature, much bigger and more developed than a typical 13 year old. This comment also fails to take into account the position of trust and responsibility [the applicant] assumed in taking on a parental role.

[The applicant] does not see himself as a sex offender but rather as an individual who fell in love with someone who was too young. A lack of insight regarding the child's emotional development and her capacity to give informed consent to such contact is evident even though [the applicant] impresses as having an appreciation that sexual contact with children is inappropriate. [The applicant] appears to have developed a sexual attraction to the victim several months prior to commencing a relationship with her mother. Stating that he had known mother and daughter for 2 years [the applicant] stated that they moved away but he renewed contact with them several months prior to commencing a relationship with the child's mother. Despite an awareness that he was developing strong romantic emotions for the child [the applicant] proceeded to embark on a relationship with the child's mother. However, he claimed that they did not engage in sexual intercourse as he felt as though he was being unfaithful to the child. Grooming of the mother to facilitate his contact with the child is indicated and suggests a lack of regard for the mother's feelings towards him.

In a relationship for 6 months before marrying [the applicant] claimed his wife-to-be stumbled in on him and the victim having sexual intercourse the day before their wedding. Claiming his fiance was upset but hopeful that he would curb his attraction to her daughter [the applicant] stated that the wedding went ahead but that the marriage was not consummated for many months as he did not want to be unfaithful to the victim. However, he claims his wife became increasingly concerned about his ongoing strong feelings for the child, and in frustration she informed the child's father who reported him to the police. [The applicant] expressed disappointment that his wife did not speak with him first but that he can appreciate that she was frustrated by the lack of sexual contact and acted impulsively in telling the child's father. [The applicant] denied that he became involved with his wife to facilitate his access to the victim however this is highly questionable given his disclosure that he formed strong romantic feelings for the victim prior to this relationship. Furthermore, given he claims he only had sexual intercourse with his wife on one occasion throughout their relationship and marriage it would appear that [the applicant's] attraction to his stepdaughter surpassed his interest in her mother and that he used the mother as a way of gaining access to her daughter. He in fact stated 'I loved [mother] but I was in love with [victim]' ...

[The applicant] does not impress as being a sexual predator, however his attraction to the victim is entrenched and he lacks insight about how he came to develop such strong feelings given the victim is a child and one he had parental responsibility for. Despite expressing disgust for men who offend against children [the applicant] does not view himself in the same light. [The applicant's] fixed mindset suggests poor prognosis for treatment as he refuses to consider that he has issues to address with respect to his offending behaviour. ..."

24 Under the heading "Brief Social History" the psychologist noted that the applicant disclosed that he became depressed and suicidal when the offences first came to light and was separated from the victim but that his mood had recently stabilised. She recounted that he stated that he was slowly coming to terms "with the demise of his relationship with the victim and accepting that he may never see her again".

25 Under the heading "Treatment Issues" the psychologist wrote:

"[The applicant's] grossly distorted view about his offending behaviour impresses as the most outstanding treatment issue. Furthermore, in depth exploration about how such an attraction could have developed is indicated especially in light of [the applicant's] claim that he never considered the child as his step daughter and that he could not love her in this capacity. It seems [the applicant] totally disregarded the fact that the victim was a child irrespective of whether she looked older. With respect to sex offender treatment it appears that [the applicant's] offending behaviour occurred in the context of gratifying both sexual needs and emotional needs. This is despite his claim that he did not harbour any sexual interest in the victim. While acting on sexual urges he was also satisfying a need for intimacy and emotional closeness with the victim under the pretext of having a relationship and subsequently marrying her mother. This appears to have been a calculated way of gaining ongoing access to the victim. A lack of empathy for his wife's feelings is indicated in as much as [the applicant] allowed his wedding to go ahead even though the child's mother apparently caught them in sexual activity the day before the wedding. It would appear that [the applicant] took advantage of his wife's vulnerability and dependence on him to facilitate his offending. This would need to be explored in treatment in order to gain insight about his behaviour as currently there is little to suggest that [the applicant] thought of anyone but himself. [The applicant] lacks insight regarding his behaviour and although cognisant of the fact that he abused his position of trust and parental responsibility he does not appear to fully understand the impact such behaviour may have had on the victim and his wife. His marriage appears to have been one of convenience however [the applicant] does not have any insight about this.

Unfortunately [the applicant's] treatment issues may not be addressed as he expressed adamant refusal to participate in a sex offender treatment programme as he does not consider himself to be a sex offender. [The applicant] stated that he would rather forgo parole if sentenced to imprisonment rather than engage in such a programme with men whose behaviour he is repulsed by. This attitude towards treatment reflects the distorted view held by [the applicant] regarding his behaviour and the fact that he sets himself apart from other men who commit sexual offences against children. This is somewhat concerning and more so given his complacent attitude that he will never engage in this behaviour again, all the while confirming his ongoing romantic love for the child".

26 The applicant draws attention to the fact that under the heading "Risk of Re-offence" in the report, the psychologist, reflecting her assessment that the applicant presents a medium/low risk of re-offending in a like manner, said that was based predominantly on the fact that the offences were considered intrafamilial and that "Mr W" has no prior convictions of a sexual nature. The reference was to an offender of a different name. The applicant informed the Court that when he pointed this out to Ms Farley who was then assisting him through the Unrepresented Criminal Appellants' Program, she suggested it was probably simply an error because of the psychologist importing into the report an extract from another document in relation to another offender. That would seem to be the obvious explanation. Notwithstanding the incorrect name, the actual comment is apposite to the applicant.

27 Under the heading "Summary" the psychologist reiterates her observation that gross cognitive distortion on the part of the applicant about his behaviour is persuasive and, although he had expressed some regret, that appeared to relate more to the relationship having been forced to end. She repeated that "[the applicant] lacks insight about his behaviour" and that it indicated some degree of manipulation and exploitation of the child's mother in as much as he indulged her attraction to him by marrying her, when all the while his romantic interest was in her 13-year-old daughter. She wrote that "Grooming of the mother to gain access to her daughter suggests some degree of planning and calculated manipulation".

28 Those portions of the pre-sentence report with which the applicant takes issue are those portions in which the author refers to and repeats particular matters in the psychologist's report.

29 The applicant's proposed amended grounds of application are contained in a document signed by him and witnessed by a Justice of the Peace. He there sets out in five pages the matters referred to in the psychologist's report about which he takes issue. I shall return to this below.

30 At the hearing before the learned sentencing Judge, counsel for the applicant referred to the psychological report and to the complainant's statement, indicating that the complainant's mother had discovered the applicant in the course of committing the first offence, but nothing appeared to result from that for some time. She said it was perhaps made bizarre by the fact that the first episode happened in very close proximity to the applicant's marriage to the complainant's mother.

31 Her Honour interpolated that, according to the reports, the applicant did not understand and had no concept of the seriousness of what he had done. He had convinced himself that he was in love with a 13-year-old girl and that was in some way an expression of his love and it was alright - but, she said, it was not.

32 Counsel said that she had been to see the applicant in custody (at the Court) and had spoken to him about what was in the reports. She said he had always told her that he was going to plead guilty. She said there was an error in the pre-sentence report (which stated there were no pending charges) because there was one other child in respect of whom there was a count which remained outstanding in the courts. What counsel said at that time was correct, although it appears the charge the subject of that count was subsequently withdrawn on 22 October 2004.

33 Counsel then went on to inform her Honour that the applicant's instructions were that he knew what he had done was wrong. She said she did not think the applicant perceived that he was a sex offender "per se" because she did not think he thought he had paedophilic tendencies. She said he knew that he had done the wrong thing and that he had harmed the child. She then went on:

"... I think he grieves for the loss of that relationship, as bizarre as that sort of age disparity may well be, but he did enter a fast-track plea of guilty to reflect his regret at what he knows is wrong.

I don't think that - I think, certainly, you know, he's put his hands up and said, 'I don't want to go to a sex offending treatment program because I'm not a sex offender. I fell in love with a child and this is something I have to deal with.' I don't think there's any lack of remorse here. I think the man's pleas have reflected that. He's certainly pleading not guilty in relation to another matter that relates to a male child.

So as far as your Honour is concerned I obviously was concerned about what was formulated in those reports because it does seem inconsistent certainly from the first day I met [the applicant] he said, 'Look, I have done the wrong thing I have got to plead guilty in relation to [the complainant] and I want to ensure that the pleas are recorded at the earliest possible opportunity.

Certainly, he has expressed views of anxiety as to how his acts have affected her, and will continue to affect her. As far as I am concerned there is a big discrepancy between what is presented in the reports and what [the applicant] has said to me and I don't know whether that is because he hasn't perhaps expressed himself in the best possible way but there is certainly no lack of remorse, as far as that child's situation is concerned. ..." (Emphasis added).

34 The learned sentencing Judge made express reference to the reports in her sentencing remarks:

"... She was 13 years of age and you were in a position of her stepfather. There is some suggestion in the reports that you believe yourself to be in love with this child and that you also believe that she was in love with you.

That in itself is an indication that you need help given that you're 48 and she's 13. Even if we put that aside for the moment and we say, 'All right' - the fact is, she's only 13 years of age. Even if we put that aside for the moment and we say, 'All right'. The fact is she's only 13 years of age and she was entitled to your protection, your complete and utter protection.

Even if it were the case - and I'm not suggesting that it was but even if it were the case that this child had a crush on you, when a teenage girl gets a crush on a man of 48 he doesn't take advantage of it. But I'm not saying, and I stress, I'm not for one minute saying that she did have a crush on you, I'm simply saying that this is beyond the bounds, and the reports are extremely disturbing and really there's nothing much that anybody needs to say about it.

You know that what you have done is wrong and that's why you have pleaded guilty on the fast-track system and the indication of remorse that flows from that does entitle you to a discount in your sentence and the reason for that is, as I have already expressed this morning, it's not a matter of saying, 'Well, I'm sorry' and we then say, 'Well, that's good, he's remorseful and he can have a reduction in his sentence.' It's when you do something concrete about your remorse and what you have done here is that you have pleaded guilty and so that the child is saved the trouble of going through, and the trauma of going through a trial.

You have also pleaded guilty on the fast-track system. Again, the community don't understand the significance of that, but we have a very high rate of acquittals in sexual offences and the reason that we have such a high rate of acquittals in sexual offences is because it's usually just one person's word against another, in that, and the juries just, in the end, don't know who to believe, so there is a high rate of acquittal.

People who have a fast-track plea of guilty from their - from the perpetrator often become angry that these things are taken into account but what they should do is compare notes with the people who don't have fast-track pleas of guilty or any pleas of guilty and they would see the difference between what you have done and what has been done by people who don't plead guilty.

This was the situation where - and I don't want to criticise the mother. I just don't know what she was trying to do; whether she thought she could deal with this in some other way. But the whole situation is designed to make this - even though it's not intentional, but children are not small adults. They don't think like adults and she would be taking a lot of the blame for this on herself and it's obvious from this letter that that's what she is doing. That's what makes this little letter so sad, really. It really is a very sad little letter.

Anyway, we can't do any more about that. We have got to take into account your plea of guilty, your fast-track plea, your remorse, but at the same time the seriousness of what you have done, ..." (Emphasis added).

35 Her Honour then noted the statutory requirement that she had to impose a fixed term that was two-thirds of the fixed term that would have been imposed under the previous sentencing provisions. She then imposed the aggregate term of 6 years' imprisonment.

36 The applicant says that each of the author of the pre-sentence report and the psychologist spent only 15 or 20 minutes with him prior to compiling the reports. He says that he had not seen either report prior to his sentencing, although his counsel did see him in the detention centre at the court for 5 to 10 minutes before the hearing and explained to him what was in them. He says he told her then that they were wrong. That is to some extent confirmed by what counsel subsequently told her Honour, although she did not indicate with any particularity or specificity at all what it was the applicant disputed.

37 In his statement dated 31 August 2004, the applicant says of the psychologist:

"... she wrote a lot (sic) of Incorrect Assumptions on her part because I stated I do not wish to do a sex offender program, because of the way I feel about such people, which does not mean that I have not commited (sic) a sex offence or are a sex offender, but I am not a peadophile (sic) and despise people which hurt children in any way, I did not attack, hurt or force my victim in any way and I should not have allowed it to happen considering her age. I am the adult and should have known better, all I hope is that it has not ruined her life in any way because I care very much about her, I do not need to do a sex offender program because I understand the severity of what has happened and the impact it has caused to everyone involved, I do know it will never happen again, as I said I am not attracted to children and am suffering because of my actions which I regret deeply."

38 The applicant says that at no time was he abrupt or abrasive, discussing his offending behaviour, nor did he give the impression that he was resentful of being in prison. He says he did state that he was upset being in prison under the circumstances because he had committed a sex offence and did not like people who hurt children in any way and now found himself in Unit 6 with many of them. He says that he did not want to do a sex offender program because it would upset him to listen to it all. He says he told the psychologist he would not do a sex offender program because he knows who he is inside and it will never happen again; he is not a paedophile and would not hurt children. He says he knows the impact it has caused everyone and wishes he could change what has happened because he regrets it and hoped (the mother) can get on with her life and that he has not ruined the complainant's life too much.

39 He denies saying or being adamant, that he and the complainant were in love. He says he told the psychologist that he loved and adored the complainant and thought that she was in love with him, but he being the adult should have known better and prevented it from happening. He says he did not say that the complainant had already suffered enough by him being incarcerated - what he told her was that the complainant was upset about him going to prison and that she blamed herself, which he very much regretted.

40 Judging from the exchanges between counsel and the learned sentencing Judge at the hearing in relation to a letter from the complainant, the applicant's comment about that would appear to be accurate.

41 Further in his statement the applicant says he did not tell the psychologist that he was under intense pressure to agree to engage in sex with the complainant. He says he told her that the complainant approached him and he should never have allowed himself to do anything at all because it was wrong and he regrets that it happened. He maintains that he does see his victim as a child and does not have a distorted view of his offences and realises that he has broken every rule of trust as a parental role.

42 He denies that he groomed the complainant's mother and says he did not have any feelings towards the complainant prior to commencing a relationship with her mother.

43 The applicant denies that he renewed contact with the complainant and her mother as asserted in the psychologist's report; rather they moved back into her house next door to where he lived and the relationship between him and the complainant's mother began several months after that. He then moved in with them. He then says:

"... I started developing feelings for my victim a few months after that because we shared alot (sic) of time together between her mother in and out of hospital having her breast removed due to cancer, which the report failed to mention! I never said that I did not engage in sexual intercourse with the victims (sic) mother as not to be unfaithful to my victim, as stated, I said the victims (sic) mother was sick alot (sic) and I felt guilty about the way I felt for the victim and I did not want to hurt the victims (sic) mother in any way and I wish I could change things. What the psychologist has written is tottaly (sic) wrong as to what I said and has left out alot (sic) of what I did say. The report gives the wrong assumption of fact."

"'Again' I did not have any feelings toward my victim prior to my relationship with her mother and I certainly did not use the mother to facilitate access to the victim. I said I loved the victims (sic) mother but fell in love with my victim mainly because we spent alot (sic) of time together and went through alot (sic) with her mother being ill, it is no excuse or does it justify my actions and it should not of happened. it (sic) is not of a lessor (sic) concern for what it has caused to my victims (sic) mother, I am quite aware of the impact it has caused everyone and regret it deeply, DCD did not become involved at all but were already involved before I came to prison, it was me to (sic 'who') stoped (sic) the victims (sic) mother visiting me and not the department, I also stated that I am divorcing the victims (sic) mother despite her not wanting to, because what has happened cannot be erased and not because of my feelings for my victim, the only way I take a victim stance is that I wish it did not happen and to live with the possible damage I have caused in so many lives which I can't fix and I have to live with, not because I have lost my victim as sugested (sic) in the report. The psychologist also accuses me of greater frequency of my offences because of my intense feelings for my victim, my love for my victim was not a sexual attraction at all but rather her personallity (sic) and the momments (sic) we shared, I destroyed it by letting sex come into it, which I regret because sex is not that important to me:"

45 There are other aspects of the report which the applicant takes issue with but which are essentially repetitive or not of great moment for present purposes. He concludes with the complaint that he was sentenced mainly on the report "which was not a reflection of [his] character at all".

46 As to the pre-sentence report, the points challenged by the applicant are substantially those repeated from the psychologist's report. However, he adds that the whole report is misleading as to his character and feelings by leaving out a lot of things he did say and how he actually said what the author had written in the report. He contends that as a result the learned sentencing Judge sentenced him on wrong assumptions of fact.

47 There is no information before us about the pressures under which counsel was operating on the day of the applicant's sentencing. Nonetheless, it is incumbent on counsel acting for an offender on his or her sentencing for an offence, to examine and consider any pre-sentence or similar report and to take the client's instructions on the content of it. In R v Carlstrom [1977] VicRp 44; [1977] VR 366 the trial Judge had remanded the applicant for a psychiatric report, which was relied on in passing sentence, but which had not been shown to the applicant's legal advisors. The Full Court of Victoria held (at 367) that the failure to make the material available to the applicant's advisors produced "a very unsatisfactory state of affairs". The Court held it to be fundamental that, save in exceptional circumstances, counsel for a prisoner should have an opportunity of seeing and commenting upon any material provided to the trial Judge. The Court recognised that in some cases it may be necessary, for example, to obtain from counsel an undertaking not to disclose a psychiatric report, to the client. If the Judge thought that for some exceptional reason the report, or some part of it, should not be made available to a prisoner's legal advisers, the Judge should tell them that he or she has it and should give most explicit reasons for not allowing them to see it.

48 Whether or not that last proposition is still good law (or ever was, in Western Australia) is probably a live question if their Honours were referring to material upon which the sentencing Judge relies in passing sentence. It may be that in those circumstances a sentencing Judge could not act on that material at all. That, however, is not something which arises in this case.

49 Whilst in deciding what sentence to impose, a sentencing court may inform itself in any way it thinks fit (s 15 Sentencing Act 1995 (WA)), that does not mean the offender or their counsel may not be given the opportunity to challenge the information that is so obtained (Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530, [44] - [55]).

50 If a report is made available to a court for sentencing purposes, the court may rely upon it unless it is challenged (Norris v The Queen (2001) 121 A Crim R 227 per Steytler J (with whom Malcolm CJ and Kennedy J agreed) at [35] - [36]). If it is challenged and the point would make a difference to the sentence, the issue should be resolved in the usual way, by the calling of evidence and determination by the Judge.

51 Similar principles apply to these reports as to victim impact statements. As Charles JA said in R v Dowlan (1998) 1 VR 123 at 140, in relation to the Victorian victim impact statement legislation:

"... if objection is taken, on a matter in substance, to any part of the statement, the judge should either rule it inadmissible or make it clear, during the plea or in sentencing reasons, that no reliance would be, or was being, placed on that part of the statement."

52 That passage was quoted by Kennedy J in Mitchell v The Queen, unreported; CCA SCt of WA; Library No 980720; 14 December 1998.

53 His Honour went on to observe (at 6) that the opportunity must be given to the offender to challenge any facts set out in the statement and that if any in the statement are to be treated as aggravating factors for sentencing purposes, it would of course be necessary for the sentencing Judge to be satisfied beyond reasonable doubt as to their truth before he or she made use of it (Langridge v The Queen (1996) 17 WAR 346).

54 In Western Australia, a pre-sentence report may be ordered by a court pursuant to s 20 of the Sentencing Act. Such a report may include reports as to the physical or mental condition of the offender (s 21(3) Sentencing Act).

55 Sentencing reports must be made available to the prosecution and the offender (if self-represented) or their counsel and they must be given the opportunity to examine or cross-examine the author (Carlstrom, supra; O'Keefe v Tankard [1989] VicRp 34; [1989] VR 371 at 381, Stanton v Dawson (1987) 31 A Crim R 104; R v Jensen [1996] QCA 182; (1996) 87 A Crim R 241 in which where very adverse opinions were expressed about a sexual offender, the Queensland Court of Criminal Appeal noted that the author was in court and he was not cross-examined; the Court assumed he could have been cross-examined), object to the material and if necessary, resolve any issue arising from the report by calling evidence (R v Lucky (1974) 12 SASR 136 at 139 per Bray CJ; R v Seres [1980] Qd R 29 at 31). In Slattery v Davis [1993] NTSC 13; (1993) 65 A Crim R 116, Kearney J said (at 123) that:

"All parties were entitled to know what was in such a report, and to have an opportunity to correct any misstatements of fact or opinions therein which they wished to challenge, prior to the case being disposed of. I accept that."

56 Care must be taken in referring to authorities from other jurisdictions because there is often a difference in the relevant statutory regimes. For example, in R v Webb [1971] VicRp 16; [1971] VR 147, the social welfare regulations under which the report had been ordered gave the sentencing Judge a discretion to decide whether or not he would disclose it to the parties. Nonetheless, the Full Court of Victoria held that if the Judge decided such report should be disclosed to the parties, that should be done before sentence was pronounced so that the parties had an opportunity at that stage of dealing with any matters in the report if they wished.

57 The position was similar in R v Seres, supra, in which the sentencing Judge had a similar discretion by virtue of the Offenders' Probation and Parole Regulations.

58 In that regard, Andrews J noted that there had been no application that the report be shown to counsel, but he was convinced that where a Judge is influenced by material in such a report, a good deal of which would necessarily be hearsay material, the Judge should disclose its contents to counsel except where there are special circumstances in which it would clearly be against the subject's interests that they be disclosed. In his Honour's view, those circumstances would be rare indeed. Generally the position should be that the convicted persons or their counsel must be given an opportunity to contest allegations in such reports and it would generally be in the interests of justice that prosecuting counsel have an opportunity to have matters referred to there, investigated before the court.

59 The Sentencing Act gives a sentencing Judge no such discretion in respect of a pre-sentence report ordered under s 20. The principles of procedural fairness would ordinarily apply, as I have described above. Those principles were the basis of the reasoning of Nathan J in O'Keefe. In that case his Honour was concerned with a report prepared by a Community Corrections Officer under s 28 of the Penalties and Sentences Act 1985 (Vic). He considered the principle expressed in Carlstrom applied to such reports, noting that the opinion of the maker of a report cannot usurp the discretion invested in the sentencer and observing (at 380) that:

"As has been observed in the psychiatric field, opinion-givers should remain on tap and not on top."

"... the structure of the 1985 Act must allow a person adversely affected by a CCO's report a chance to be heard. In my view s 28, taken in its context, does not exclude such a result. Common law requirements as to procedural fairness and natural justice prevail. The only venue at which the adverse opinion can effectively be challenged is the court during its sentencing process, that is, after the report has been delivered to the court. This conclusion necessarily imputes the right of an offender or his counsel to examine the conclusions and the bases upon which they are made. I have purposefully adopted the word 'examine' rather than 'cross-examine', because the report of a CCO is a product of s 28 and is not of the Crown or defence. The opinions of a reporter is not critical to the issues of proving the charge and are not to be likened to evidence-in-chief called by the Crown. For these and other practical reasons, the author of a report should not be subjected to cross-examination, as is commonly understood, either by the offender or his counsel.

Two matters of public policy need to be reconciled. On the one hand is the need for CCO's to be fearless and frank in expressing their opinions concerning the suitability of offenders for CBO's. On the other is the basic requirement that a court should not act upon untested or unsubstantiated opinion. However, the two principles can be accommodated. The mere statement of an adverse opinion should not bind a court as to one of its sentence options, thus examination of such views should be permitted and CCO's should be prepared to justify their opinions."

61 Nathan J said an offender or his counsel should not be allowed to examine a CCO in a fishing or oppressive way and the purpose of the examination should be restricted to testing the validity of the adverse opinion and the material upon which it is based.

62 Whilst I certainly agree, with respect, with those sentiments, I would not myself be prepared to hold that an offender or their counsel may not cross-examine the maker of an adverse pre-sentence, psychological or other report going to sentence. The effect of a sentencing Judge accepting and acting on such adverse opinions or material may be to the significant detriment of the offender, resulting for example in possibly the imposition of a custodial rather than a non-custodial sentence, or a longer term of imprisonment than would otherwise have been imposed, or a refusal to order eligibility for parole. Even so, of course, cross-examination will be constrained in the ordinary way by considerations of relevance to sentencing issues and weight (in the sense of degree of significance to those issues).

63 In what he described as his "Closing Statement" the applicant wrote that he strongly believes that her Honour made her decision predominantly on the pre-sentence report "which was not correct". He says he does regard himself as a sex offender, but not a paedophile and he will do the sex offender program to prove that. He maintains that if the reports were done again and gave a "correct account of my statements of feelings" it would lead to a different outcome.

64 The applicant disputes the sentencing reports in essentially three ways. First, he contends the authors incorrectly reported what he had said (or misunderstood what he meant); secondly, that they omitted altogether some of the things he did say; and thirdly, that the opinions they expressed were unfounded and wrong. All these were matters which could properly have been tested by cross-examining the authors. Counsel however, did not object to, nor identify the particular matters in dispute and nor did she seek to cross-examine the authors. There was in that respect a denial of procedural fairness to the applicant, albeit one which could not be attributed in any way to the learned sentencing Judge.

65 In my opinion however, that did not here result in a miscarriage of justice, for the following reasons. When scrutinised, the points at which the applicant disagrees with the content of the pre-sentence and psychological reports do not lead to an understanding of the position different from that held by her Honour. The applicant does not deny that he told the psychologist and author of the pre-sentence report that he did not want to do the sex offenders' program, but says that was because (as he explains) although he acknowledges he is a sex offender he is not a paedophile. As I understand what he says about that, it is that he accepts he is a sex offender because he did engage in sexual conduct with the complainant, but he is not a paedophile because he did that out of attraction to the complainant herself, not because he has a sexual propensity towards children generally. That was in fact recognised by the psychologist and the author of the pre-sentence report. The former, for example, wrote (at p 7) that:

"[The applicant's] level of risk focuses predominantly on the current victim as he does not impress as having sexual interests in young girls in general."

66 The primary consideration for her Honour arising out of the reports was the suggestion that the applicant believed himself to be in love with the complainant and that she was in love with him. Her Honour observed that to be in itself an indication that he needed help, given that he was 48 and she was 13 years of age. It was clearly in that respect that her Honour found the reports to be "extremely disturbing".

67 There is nothing which the applicant says he wished to put forward to her Honour which would have altered that concern. He expressly repeats that he "loved and adored my victim [and] thought she was in love with me". Although he denies that he "groomed" the complainant's mother and maintains that his feelings for the complainant commenced only after he moved in with her and her mother, he acknowledges that he did "develop feelings" for the complainant subsequently. He says "... I loved the victim's mother, but fell in love with my victim ...", although he later says that his love for the complainant was not a sexual attraction at all, but rather "her personality and the moments we shared ..." which he destroyed "... by letting sex come into it."

68 It is somewhat difficult to reconcile that last assertion both with what the applicant admitted actually doing to the complainant and what else he says about his "love" for her.

69 If one has regard to her Honour's sentencing remarks, the applicant's contention that he was sentenced mainly or predominantly on the psychologist's report cannot be accepted. It was taken into account by her Honour, but only in the way I have described - and for the reasons I set out above what the applicant says about that would not have led to a different view of that matter, being that which the prosecution described (at t 9) as "the most disturbing factor in this case", namely that the reports indicated that the applicant believes he was in love with the complainant.

70 It is apparent her Honour took a serious view of the offences on the plain facts of the circumstances as she recounted them. They were that the offences were committed on two separate occasions; the applicant had complete sexual intercourse with the complainant on those occasions; she was 13 years of age; he was in the position of her stepfather; and that he was 48 years of age. She had regard to mitigating factors which she identified as the plea of guilty by way of a fast-track process and the applicant's remorse, but she also recognised the seriousness of the offences.

71 Under the circumstances and on a full consideration of all of the material, I am not persuaded that a different sentence should have been passed. That is the sole ground upon which this Court may quash a sentence. Absent satisfaction that a different sentence should have been passed, the Court is required to dismiss an appeal against sentence (s 689(3) Criminal Code).

72 The applicant's sentence of 3 years' imprisonment passed on or after 31 August 2003 which has been adjusted in accordance with Sch 1 to the Sentencing Legislation Amendment & Repeal Act 2003 (WA), equates to a finite term of 4 years 6 months and one of 6 years equates to a sentence of 9 years under the previous legislation.

73 Mr Dempster, who appeared for the respondent, submits that the sentences imposed by her Honour were at the high end of, but were nonetheless well within, the range of a proper exercise of the sentencing discretion. In my opinion that submission should be accepted.

74 In Woods v The Queen (1994) 14 WAR 341, Anderson J (with whom Malcolm CJ and Seaman J agreed) surveyed sentences imposed in a number of cases of sexual offences. That exercise demonstrated that there is no tariff and that circumstances are infinitely various. His Honour said (at 345):

"Multiple prolonged aggravated sexual assault by an adult upon a young child within the family environment involving the taking advantage of a position of trust is, of course, very serious and the law demands the protection of young children from it. The dominant sentencing considerations are punishment and general and personal deterrence: see R v Wozencroft (unreported, Court of Criminal Appeal, WA, Library No 6606, 25 February 1987). In that case, Burt CJ said:

'... In my opinion the general intention of the Act (the Acts Amendment (Sexual Assaults) Act 1985 (WA)) is that an act of sexual penetration as that expression is defined, if achieved without consent, is now to be regarded as a serious crime and the more so when, as here, it is committed with a circumstance of aggravation, one such circumstance being that the person sexually penetrated is under the age of 16 years. Once the decision has properly been taken to impose a sentence for such an offence (unlawful sexual penetration of a person under the age of 16 years) it is not then to the point to contend that the sentence should be structured upon the assumption that the offender requires treatment or counselling or both and that accordingly it should be a sentence which is designed to facilitate a 'cure' to be achieved in that way. As I read the Act the general approach must be that the primary purpose of a sentence for such an offence is to protect members of the community from such assaults, and that that protection is to be achieved by a sentence which is and which is seen to be imposed as a punishment, its purpose being to deter. The idea of rehabilitation of the particular offender, although it cannot be ignored, must find its accommodation within such a sentence. The Act discloses a broad policy decision which the courts should give effect to. To that extent it has for the courts closed the debate'."

75 Anderson J observed that in the case of a single act of aggravated sexual assault by penile penetration, where the circumstance of aggravation is that the complainant is under 16 years of age, it is not unusual for the courts to impose sentences of 7 years or thereabouts and a sentence of 6 years was quite common. His Honour added that where there is a series of offences, the criminality is regarded as being much higher. Of course that was in 1994 and the range of sentences has, if anything, tended to increase since then.

76 The applicant's sentences are entirely consistent with what was said in Woods, both as to the range of sentences for such offences and the considerations which particularly bear upon them.

77 Because of the point raised in relation to the pre-sentence and psychological reports, I would grant leave to appeal against sentence but I would dismiss the appeal.

78 PULLIN JA: I have read the draft reasons prepared by Roberts-Smith JA. I agree with those reasons and have nothing to add.