(a) if the court imposes a sentence of imprisonment for a term - a term that is 25% less than the term the court would otherwise have imposed"
29 Both parties agreed in this Court, but not unfortunately before his Honour, that the Criminal Case Conferencing scheme applied to the applicant. As the plea had been entered before committal, s 17(1)(a) mandated a 25 per cent discount for the plea whereas the sentencing judge had allowed a discount of 15 per cent. In Do v R [2010] NSWCCA 182 and Tran v R [2010] NSWCCA 183, Hislop J (with whom McClellan CJ at CL and Barr AJ agreed) accepted the Crown's concession in those cases that the failure by the sentencing judge to give a 25 per cent discount when the Criminal Case Conferencing Trial Act applied was a material error, which required the sentence to be quashed and the applicant re-sentenced.
30 The failure to apply the mandated discount is an error of such materiality as to justify the Court's intervention, having regard to the terms of s 6(3) Criminal Appeal Act 1912. I am satisfied that "some other sentence…is warranted in law and should have been passed." The applicant is to be re-sentenced.
31 There is another reason for upholding this ground of appeal. The sentencing judge in the passage quoted at [13] above considered that because the complainant was required to give evidence and was cross-examined, the utilitarian value of the plea was lessened. It was, however, the crown advocate who raised the issue of how often the abusive conduct had occurred. As it was an agreed fact that the four offences were not isolated incidents, it was unnecessary for this issue to be raised. The tender by the crown advocate of the complainant's statements placed the applicant in a difficult position and compelled the cross-examination of the complainant, which the applicant had no desire to do. Very little court time was devoted to this issue. In the circumstances the applicant should not have been penalised by a reduction in the amount of the discount for the utilitarian value of the plea which the sentencing judge otherwise considered to be appropriate.
32 Whilst it is unnecessary to deal with the other grounds of appeal, I propose to make brief observations about Grounds 3 and 4. The focus of the complaint in Ground 3 is that the sentencing judge erred in finding that the applicant was in a position of trust which is an aggravating factor both at common law and under s 21A(2)(k) Crimes (Sentencing Procedure) Act. I am not persuaded that the sentencing judge considered in the passage quoted at [14] above that the applicant was in a position of trust which he abused, such that it was a matter of aggravation. It seems to me that his Honour was responding to the Crown submission on sentence that whilst the applicant was not in a "formal position of trust" he nevertheless held a position of some trust within the family. I would reject Ground 3 of the appeal.
33 As to Ground 4, the asserted error was that his Honour erred in failing to explain how he could prefer, in the passage quoted at [13] above, the complainant's evidence and by applying the wrong standard of proof. The sentencing judge had the advantage of seeing the applicant and complainant giving evidence. He considered that the complainant had "good cause" to remember the times that he had been the victim of the applicant's offending. He did not simply rely on the appearance of the witnesses but identified a reason for his conclusion. Furthermore I am not persuaded that his Honour, an experienced sentencing judge, did not apply the criminal standard of proof to the factual dispute. I would reject Ground 4 of the appeal.
Re-sentence
34 As the offence was committed between 1 December 1996 and 31 May 1997, the applicant is to be sentenced in accordance with the sentencing practice as at the date of the commission of the offence and not as presently prevails: R v MJR (2002) 130 A Crim R 481. An analysis of where the offence lies on the range of objective seriousness of an offence contrary to s 61J(1) Crimes Act in accordance with the principles in R v Way (2004) 60 NSWLR 168 is not required as a standard non-parole period did not apply in 1996 or 1997. In my respectful opinion, the sentencing judge's finding that the offence was below the mid-range of objective seriousness was unnecessary: Sivell v R [2009] NSWCCA 286; Georgopolous v R [2010] NSWCCA 246.
35 The maximum penalty for an offence contrary to s 61J(1) Crimes Act is 20 years imprisonment. It cannot be doubted that an act of fellatio committed by an adult, albeit 22 years old, on a 14-year-old is an objectively serious offence. The acts of indecency, being offences 1 and 2 on the Form 1, which preceded the fellatio are also objectively serious. The facts disclose that the complainant resisted the applicant's advances but nevertheless he persisted. I also take into account the objective seriousness of the forced masturbation being the third offence on the Form 1. It is an agreed fact that the four offences were not isolated incidents. The offending, however, was not accompanied by violence or threats of violence. As a consequence of the offences, the complainant's life has been damaged. He continues to suffer from psychological and emotional injury.
36 Whilst the offender took advantage of the close relationship that he had with the complainant and his family, I do not find that he was in a position of trust which was abused: s 21A(2)(k) Crimes (Sentencing Procedure) Act. The sentencing judge found as a mitigating factor that the offences were not part of any planned or organised criminal activity and I do not propose to find otherwise: s 21A(3)(b) Crimes (Sentencing Procedure) Act.