…………..In short, such a sentence may well have been appropriate if the applicant had pleaded guilty to murdering the victim. The aggregate sentence is out of proportion to the criminality of the applicant.
21 It was not submitted that any particular sentence was too severe but the complaint is about the structure of the sentences. In particular, the applicant argues that the total accumulation of the non-parole period for counts 4, 5 and 6 was unwarranted. At the hearing, the applicant stressed that the sentence imposed was after a plea of guilty that the Judge believed warranted a discount of 25 per cent.
22 The Crown maintained that, although the sentences were heavy, they were warranted by the severity of the overall criminality of the applicant. It was noted that there had been a change in the community's attitude to child sex offences in recent times as the long-term impact of such offences on the victims had become recognised: see R v MJR (2002) 54 NSWLR 268 at [57]. Reference was made to what had been said about sentencing for offences under s 66AE in Langbein v R [2008] NSWCCA 38 in which it was stated that the offence is more serious than the individual acts that comprise the offence. The Crown noted that the offence in this case comprised 12 offences that each carried a maximum penalty of 25 years with a standard non-parole period of 15 years. There were also 36 acts of indecency that each carried a maximum penalty of 10 years imprisonment.
23 Reference was also made by the Crown to what had been said about the seriousness of the child pornography offences by Simpson J in R v Booth [2009] NSWCCA 89 at [40] to [44] and the need for deterrent sentences.
24 I accept that the offences were of the utmost gravity. The Judge stated that he had never seen offences as serious as these. Of course he had seen the pornographic images and videos. Although the offer was made to have this Court receive the exhibits, it was declined. His Honour's description of its contents was quite sufficient to reveal the appalling nature of the abuse of this child from the age of 7. I am prepared to act upon his determination that some of the offences were in the worst category.
25 But, in my opinion, it cannot be correct that the criminality, as serious as it was, warranted a total sentence before discount of 32 years. I do not accept the applicant's argument that the sentence is manifestly excessive having regard to what sentence might have been imposed had the applicant murdered the child. Maximum sentences and standard non-parole periods have been set by Parliament for the most serious child sexual assault offence at a very high level: 25 year maximum and a standard non-parole period of 15 years. It must, therefore, be feasible that an offender who is convicted after trial of a very serious offence of that kind could receive a harsher sentence than a person who plead guilty to a mid range offence of murder. Even if such a result might be seen as being unpalatable or even illogical, it could arise from the current sentencing regimes for the two offences.
26 The result in this case depends upon a proper application of the totality principle. The fact that the applicant committed a number of offences that fall within the worst category does not mean that he must receive a sentence that will reflect the criminality of each of those offences if viewed in isolation. The totality principle works to limit punishment to an overall assessment of the offender's criminality in its entirety and to recognise that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing.
27 As bad as the offending was, it was a chapter of the applicant's life over three years after 41 years of a crime-free existence within the community. The applicant clearly became obsessed with the child, with pornography and with the Internet. It was one course of criminal conduct that seems to have reached the stage where the applicant was unable to control himself. This is not stated in order to minimise his behaviour. It should be denounced in the way that his Honour did and the sentence must be a very severe one. But the conduct must be seen from the perspective of a lack of any suggestion of this type of behaviour until he came into contact with the complainant.
28 I accept that his Honour paid more than mere lip service to the totality principle, in that he made the sentences for the first three offences concurrent with each other and with count 4. But I believe he erred in making the sentences for the last three offences cumulative on one another. It is difficult to understand how his Honour applied the discount for the plea of guilty. For example, the sentence for the s 66EA(1) offence of 16 years does not on its face indicate that a 25 per cent discount has been applied. Nor does the sentence for count 5 that was 8 years. But in any event, as I have indicated, a starting overall sentence of 32 years before the application of the discount is in my opinion manifestly excessive.
29 On the prospect that the Court might re-sentence the applicant, he filed an affidavit as to his current custodial situation. He is on a strict form of protection known as "limited association". He is confined to his cell for 22 hours per day and has little work or education opportunities. Although there was some evidence before the Judge as to the applicant's conditions of imprisonment, his custody appears now more onerous than it was at the time of sentence. This is a matter to be taken into account.
30 I would grant leave to appeal and allow the appeal in part. I believe that the appropriate starting sentence before discount is 24 years so that the overall sentence should be 18 years. The non-parole period should be 14 years even though this is a higher percentage of the total term than would result from the application of the statutory ratio. It still leaves the applicant ample time on parole and is the least time he should serve in custody. I have reduced the sentence on count 5 for the purpose of applying the totality principle and found special circumstances in order to achieve the appropriate overall non-parole period. Considered by itself the sentence would be inadequate.
31 The orders I propose are: