MC v R

Offences and maximum penalties

1. The seven offences to which the applicant pleaded guilty were summarised at the beginning of Judge Hanley's remarks on sentence: [2] 1. Assault a female under 16 and commit act of indecency (X). The act of indecency was digital penetration of the vagina. Pursuant to s 76 of the Crimes Act 1900 there was a maximum penalty of six years imprisonment. 2. Assault female under 16 and commit an act of indecency (Y). The act of indecency was placing his hand underneath her underwear and causing her to touch his penis. Pursuant to s 76 of the Crimes Act, there was a maximum of penalty of six years is applicable. 3. Assault female under 16 and commit an act of indecency (Y). The act relied upon is digital penetration of the vagina. Pursuant to s 76 of the Crimes Act, there was a maximum penalty six years imprisonment. 4. Assault female under 16 and commit an act of indecency (X). The act relied upon was cunnilingus. Pursuant to s 76 of the Crimes Act maximum penalty six years imprisonment. 5. Carnal knowledge (X) when she was 15 years of age. Pursuant to s 73 of the Crimes Act 1900 there was a maximum penalty of 14 years imprisonment. 6. Assault female under 16 and commit an act of indecency (Y). The act relied upon was cunnilingus. Pursuant to s 76 of the Crimes Act, there was a maximum penalty of six years imprisonment; 7. Carnal knowledge (Y) when she was aged 11 years of age. Pursuant to s 73 of the Crimes Act there was a maximum penalty of 14 years imprisonment.

The facts of the offences

1. The facts were agreed between the parties and a statement of agreed facts formed part of the prosecution's tender bundle which became Exhibit A. The Judge set out the facts in a passage of his judgment which was not subject to criticism on the appeal. What follows is a reproduction of the summary of facts edited to ensure the victims are not identified: The offender was born [in 1941 and] is the natural father of the complainants [X] born [in 1963], and Y born [in 1969]. The offender was previously married to [the mother of the two victims], and the couple had a further child [Z]. The family originally resided in [the New England area of New South Wales] until moving to [an area in north western Sydney] in the mid-1970s. Each of the offences occurred in the family home continuing as the family moved from each address. Between 1971 and 1976 the family resided in [New England]. When X was nine or ten years old the offender would have her stay up later than her siblings to watch television on the sofa. One night the offender got X to sit on his lap in front of him on the sofa. He lubricated her vagina with saliva and inserted his fingers into [her] vagina (count 1 - s 76 assault female and commit act of indecency). In January 1975 when Y was five years old she came out of her bedroom, was walking down the hall to go outside when the offender called her into the bedroom. The offender was lying on the bed in his pyjamas, he told the victim to get onto the bed with him, she did, he then cuddled her, put his hand inside her underwear (count 2 - s 76 assault female and commit act of indecency). With his other hand the offender removed his penis and told Y to touch his penis. They heard a scream from her mother because there was a snake and they stopped this behaviour. Around April 1976 the family moved to [a suburb in Sydney]. In late 1976 the family moved to [another Sydney suburb]. The family lived at this address until the end of 1979. On a night in winter 1978 the offender entered Y's bedroom which she shared with [the third child]. The offender who appeared drunk got into her bed and lay next to her while she was watching television. He began to fondle her genitals and then penetrated her vagina with his fingers (count 3 - s 76 assault female and commit act of indecency). After digitally penetrating her vagina he positioned himself behind the child and pulled her underwear to one side, he then attempted to penetrate her vagina with his penis but was unable to do so. As he pushed his penis towards her she cried out in pain. Her [sibling] was in the room but did not seem to notice what had occurred. Y's mother entered the room and told the applicant to get out. The following day Y's mother asked her what had occurred. In January 1979 Y walked past X's bedroom and saw her father performing cunnilingus on her. The door to the bedroom was wide open and the offender was halfway down the bed with his head positioned between the victim's legs (count 4 - s 76 assault female and commit act of indecency). Later the same day Y saw the offender having sexual intercourse with X. He was on top of her in a missionary position and she could see his hips thrusting in a motion that perceived sex to be taking place. The offender had placed his penis inside her vagina and was penetrating it (count 5 - s 71 carnal knowledge). At the end of 1979 the family moved to [a different address] where they lived for about six months. In 1980 they moved to [another address]. In the May school holidays in 1981 Y who was 11 years of age suffered a broken collarbone, a broken thumb and shock after being hit by a car. Whilst Y was home the offender would often care for her when her mother went to work. She was heavily medicated for the pain. She was crying due to the pain so the offender gave her some pain relief and placed her in his bed. She awoke to find the offender performing cunnilingus on her (count 6 - s 76 assault female and commit act of indecency). She then went blank and later woke to find the offender penetrating her vagina with his penis (count 7 - s 71 carnal knowledge). In 1991 or 1992 a family event was held at the family home. All the family members were present including X's husband as well as [others]. On this occasion X's two year old son went missing and X's brother found him in the offender's bed with the offender. X collected [the child] and promptly left the house with [her husband]. In the following weeks X and Y disclosed their assaults to each other and subsequently informed their mother. Upon advice, the mother phoned the offender and said "I know what you did to the girls" and hung up. That evening with the whole family present the offender came home, folded his arms and said "So who wants the first hit?" The offender was forced to leave the house and since that day has not had any contact with [the mother], X or Y. He had a few moments of contact with [the other child] in the following months in relation to property collection. In 2014 Y provided a statement to police instigating an investigation to commence. Each family member was subsequently interviewed. At about 12.15pm on Friday 23 October 2015 the offender was arrested and conveyed to St Marys Police Station. He participated in a record of interview during which time he denied all allegations of sexual assault against his daughters. He further denied ever being questioned by [his wife] about the sexual assaults. The offender acknowledges that his conduct was not isolated to the charges described above.
2. Victims' impact statements were tendered and read by the victims. Those statements spoke eloquently to the devastation that the applicant's conduct caused to his two daughters. The sentencing Judge noted that the victims suffered "substantial emotional and psychological injury" and that this was continuing.
3. The offending involved an egregious breach of the applicant's children's trust. Each of the offences was serious in its own right and the carnal knowledge of an 11-year-old child (count 7) represents criminality of a very high order. Whenever the applicant stood to be sentenced, there was an inevitability of a lengthy sentence of imprisonment.

The applicant's personal case and other mitigating circumstances

1. The applicant presented a strong case on sentence which required the sternness of the punishment to be tempered with a substantial degree of leniency.
2. In spite of the applicant's denial of the offences when he was first interviewed by police, he pleaded guilty at an early stage when the matter was still in the Local Court. The sentencing Judge reduced the sentence that he would otherwise have imposed by 25% to reflect what has come to be known as the "utilitarian value" of the applicant's plea of guilty.
3. Further, the sentencing Judge accepted that the applicant was truly remorseful for his conduct. His Honour appeared to accept the opinion of the psychiatrist, Dr Furst, that the applicant had empathy for the victims even though his "insight into the reasons for his offending is poor".
4. An important factual finding made by the sentencing Judge, which is not contested by either party to the appeal, is that the applicant's moral culpability for the offending was diminished "to a limited extent" by reason of the fact that he had been the victim of similar offending when he was a child. [3] Judge Hanley accepted the opinion of Dr Furst that there was a "linkage" between people who had been sexually abused themselves and people who became perpetrators of such abuse.
5. The sentencing Judge also accepted that the fact that the applicant had voluntarily ceased to offend against the children was a "significant mitigating factor". This, in turn, satisfied the sentencing Judge that the applicant was unlikely to reoffend and had good prospects of rehabilitation.
6. Because of the length of time over which the offences were committed, and in spite of the applicant's lack of criminal record, the sentencing Judge was not satisfied that he was a person of good character. While the lack of a criminal record was a mitigating feature, [4] no complaint was made in relation to the approach that the sentencing Judge took in this area.
7. Finally, the sentencing Judge took into account the substantial delay between the time of the offences and the imposition of sentence.
8. By the time sentence was imposed the applicant was an elderly man and had a number of medical conditions of significance in determining the appropriate sentencing outcome. Two medical reports were tendered showing a number of medical conditions including atrial fibrillation, left ventricular dysfunction, hypertension, gout and dyslipidaemia. The applicant required ongoing medical treatment and saw a cardiologist regularly but his general prognosis "can be expected to be good with treatment". However, his doctor provided an opinion that imprisonment would likely impose a greater burden on his overall state of health. His cardiologist provided a report noting that the applicant "has an underlying cardiomyopathy" and had a cardiac defibrillator in place to prevent life-threatening arrhythmias. He has an ongoing risk of stroke and requires ongoing medical assessment of those issues on a six monthly basis.
9. The sentencing Judge took all of these matters into account and no complaint is made of the way in which his Honour dealt with them. Those subjective circumstances of the case, set alongside the extremely serious offending, presented the Judge with a typically difficult exercise in striking the correct balance between the various purposes of punishment referred to in s 3A of the Crimes (Sentencing Procedure) Act which, in turn, reflect the common law.

Sentencing in historic child sexual assault cases

1. In 2002, this Court in MJR v R sat a bench of five judges "to resolve an issue of sentencing principle on which earlier courts had diverged unwittingly". [5] The issue concerned the approach a sentencing court should take to sentencing in offences where sentencing practices and patterns had changed in the absence of changes to the maximum penalty. The "divergence of approach" had arisen most sharply in the cases of R v Shore [6] and R v PLV [7] but the issue had also been considered in other cases. [8]

Early cases and the conflict in authorities

1. R v Shore was an appeal against a sentence imposed on the applicant for his involvement in a conspiracy to import cannabis and possession of narcotics reasonably suspected of having been imported into Australia. The applicant was arrested in 1974. After being released on bail, he fled to the United States. He was arrested in 1990 and stood for sentence in 1991. The sentencing Judge held that the "appropriate sentence" should reflect "not only the then applicable statutory maxima but also the appropriate sentencing patterns". In other words, the "sentencing patterns" applicable in 1974 should be applied. Badgery-Parker J (with whom Mahoney JA and Hunt CJ at CL agreed) described this approach as "completely correct" and noted that neither party had submitted otherwise. [9] A feature of that case was that the Court was provided with reports of 22 sentencing cases decided during the relevant period. [10]
2. In R v Watson, a similar approach was taken by a two judge bench (Levine J and Smart AJ) in a child sexual assault case. [11]
3. In R v Moon, decided in December 2000, the Court (Fitzgerald JA, Whealy and Howie JJ) applied the principles stated in R v Shore to another case involving historical sexual offending. Howie J stated the relevant principles as follows (authorities and citations omitted): 67 Firstly, the court must have regard to the maximum penalty for the offence at the time when the crime was committed. This will indicate the policy of the legislature at the time the offence was committed. It will prescribe the limit of the court's discretion, as the maximum penalty is intended for cases falling within the worst category of cases for which the penalty is prescribed. Prima facie the maximum penalty indicates the seriousness of the offence. 68 Secondly, the court must consider where in the range of the conduct covered by the statutory offence, the particular criminal conduct committed by the offender falls. This will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie. 69 A pattern of sentencing, if available, will also indicate the range of appropriate sentence for the type of conduct under consideration. But this pattern will reflect "the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature." 70 The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. 71 When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time.
4. Whealy J observed at [23] that "the principle stated in Shore is clear" but "its application in any particular appeal is often a difficult matter". His Honour noted the need "to have a clear picture as to the range of sentences imposed at the earlier point of time" and contrasted the situation in R v Shore (where over 20 cases were provided to establish the "range") with the situation in R v Moon where there was no such material provided.
5. When the Court (Spigelman CJ, Simpson J and Smart A-JA) came to consider R v PLV in 2001, the decisions in Shore, Watson and Moon were not brought to their Honours attention. [12] Spigelman CJ (with whom Simpson J, as her Honour then was, agreed) rejected a submission that the offender should be sentenced by reference to earlier sentencing patterns. His Honour said at [93] "I see no reason why this Court should establish such a principle for the first time" and at [94] "I do not understand how a court would go about determining what it would have done twenty years before". His Honour described the approach urged by the appellant as "both artificial and inappropriate" and concluded that "[s]entencing should be based on practices extant at the time of conviction".
6. Smart A-JA dissented and adopted a similar approach to that represented by the earlier cases. His Honour said: 107 The judge correctly had regard to the position which existed in 1974 when the offence was committed and the applicant's present position. There are practical difficulties in trying to recapture the situation which existed 25 years ago. Reference to the odd decided case may not be helpful in trying to obtain an overall picture. While it is not perhaps the best source, there are judges who have a reasonably good recollection of the practice in the Courts and the sentences imposed in the period 1965-1980. There are judges who do not have such knowledge. If there is no substantial evidence as to that practice and the sentences and the judge is not aware of them then they obviously cannot be taken into account. 108 I do not have difficulty in recalling the approach of the Courts when sentencing for offences of carnal knowledge in the period 1965-1980. The case presently in question would have been regarded as a serious instance of carnal knowledge and attracted a substantial sentence. The sentence imposed by the judge would have been regarded in the 1970's as unduly lenient, having regard to the facts then known and the absence of the exceptional subjective features which now exist.

The decision in R v MJR

1. It was in the context of the divergent approaches demonstrated in those authorities that the Court sat a bench of five to resolve the issue in R v MJR. The Court divided on the issue.
2. Spigelman CJ concluded at [31] that the view he expressed in PLV was incorrect. His Honour was of the view that his earlier stated view was "out of keeping" with the provisions of s 19 of the Crimes (Sentencing Procedure) Act which provide that where the maximum penalty for an offence is increased, the offender should only be exposed to the lesser penalty applicable at the time of the offence while, conversely, if the penalty is decreased, the lower penalty should apply. [13]
3. The Chief Justice accepted the submission that there was "an element of unfairness involved in sentencing an offender on a harsher basis than would have been the case if he had been sentenced at a time reasonably proximate to the commission of the offence". [14]
4. His Honour acknowledged that he still considered there was a lack of logic in the approach, but he recalled that "the life of the law has not been logic: it has been experience" and recognised "the temptation, which is so apt to assail us, to import a meretricious symmetry into the law". [15]
5. Grove and Sully JJ and Newman AJ agreed with the Chief Justice although both Grove and Sully JJ did so with a degree of diffidence. Grove J at [71] said that "uninhibited by prior authority" he would have been inclined to adopt the approach of Spigelman CJ in R v PLV. Sully J also said that he was inclined to the view expressed by the Chief Justice in R v PLV if "unconstrained by previous authority". [16] Sully J referred to the difficulty in "putting practical flesh upon the theoretical bones" of the approach taken by the Court in R v Shore. [17] Sully J agreed with the Chief Justice's reversal of the latter's position in R v PLV but "only for the reason that the decision in R v Shore has stood unreversed since 1993 and has been followed consistently in subsequent decisions of this Court". [18]
6. Mason P wrote a powerful dissenting judgment. He described Spigelman CJ's approach in R v PLV as "principled and practical" and was of the view that "the weight of precedent does not stand in the way". [19] His Honour said at [45]: Stated bluntly, it is wrong for a court to apply earlier patterns that have been repudiated as erroneous in the single eye of the law.
7. The President questioned the practical implementation of the principle applied in R v Shore and at [56] posed the following "conundrum": Question: How does today's judge know if yesterday's prevalent sentencing patterns were aberrant or correct? Answer: The judge should consult authoritative decisions. Question: What if recent authorities contradict earlier authorities? How does the judge know which is correct? Answer: The judge does not need to know if the earlier authorities were correct, because he or she must accept current orthodoxy as binding even if it differs from the orthodoxy evidenced by yesterday's sentencing patterns.
8. His Honour also expressed "some difficulty with a principle that hinges upon the availability of sentencing judges with excellent memory spans." [20]

The approach since the decision in R v MJR

1. In spite of the curiosities in the judgments in R v MJR, it determined authoritatively that, where there has been a significant delay, a sentencing Judge should apply the sentencing patterns and practices prevailing at the time of the offending rather than those existing at the time of sentencing. That principle goes beyond the more obvious case where the maximum penalty has increased. Sentencing courts (and this Court) have applied this principle since R v MJR was decided. The judgment of Howie J in R v Moon is most frequently cited to explain the correct approach.
2. Even so, the precise content of the principle remains elusive and the practical issues surrounding the application of the principle continue to flummox judges at first instance. In MPB v R, Basten J explained a number of difficulties surrounding the application of the principle. [21] At [34]-[35], his Honour set out his view of the steps that need to be followed when sentencing for an historical offence before saying: [I]t is neither necessary nor appropriate to have regard to the actual patterns or practices of sentencing which are now believed to have operated at the time of the offence, whether based on acceptable statistical evidence, cases or memory.
3. Basten JA was in dissent in MPB v R and did not follow the decision of the five judge bench in R v MJR. Garling J (with whom RA Hulme J agreed) applied the majority decision in R v MJR, noting that it had been "regularly applied by this Court since the decision was delivered".
4. There are (at least) four areas in which the decisions of this Court provide a reasonable consensus as to changes in sentencing practices in dealing with historic child sexual assault offences. Some of these also apply to other offences but tend to arise most frequently in child abuse cases.
5. First, the maximum penalties for most sexual offences have increased and, in many cases, standard non-parole periods have been introduced. As a result, the length of sentences imposed in such cases has increased.
6. Second, the length of sentences have also increased as the courts gain a better understanding of the impact of such offending on its victims and in response to community expectations that offenders who sexually abuse children will be dealt with severely.
7. Third, as a result of legislative changes, the proportion of the non-parole period to the total sentence has increased. [22] In Denham v R the Court noted at [49] that in the period between around 1970 and 1985 "involved the imposition of non-parole periods comprising between 35% and 50% of the head sentence". A similar conclusion was reached in MPB v R. [23]
8. Fourth, since the decision of the High Court in Pearce v The Queen and cases decided in this Court thereafter, there has tended to be a greater degree of accumulation of individual sentences. [24] During the period of the present offences, many cases involving multiple offences resulted in sentences that were substantially concurrent, particularly if there was only one victim. There tended to be less accumulation than there is today when there were multiple victims. Since the introduction of aggregate sentencing, [25] the task of the sentencing Judge has been simplified (at least in this regard) and there is less focus on the precise degree of accumulation and concurrence between individual charges. [26]
9. In the present case, speaking generally, neither side took issue with the approach taken by Hanley DCJ as to the general application of these principles. Accordingly, it is unnecessary to venture further into the controversy except where it is relevant to the grounds of appeal.

"Judicial Memory"

1. One area which remains controversial, and which is important to the resolution of the present appeal, concerns a concept referred to by Button J in Magnuson v R as "judicial memory". [27] The term was adopted by the sentencing Judge in the present case and the approach that his Honour took is subject to the second ground of appeal.
2. In Magnuson v R, Button J referred to five factors that allowed him to conclude that a sentencing pattern could be established in respect of sexual offences committed against children in the late 1970s and early 1980s. These were (1) statistics from the period, (2) summaries of cases, (3) the "general increase in sentences that has occurred across the board in New South Wales", (4) the upward movement in maximum penalties in respect of the subject offences and, (5) judicial memory. There appears to be little controversy surrounding the first four of those factors.
3. However, the use of the fifth factor - "judicial memory" - has been criticised on a number of occasions. Button J dealt with this factor in his judgment in Magnuson v R at [127]-[128]. Reference was made to the judgment of Bell JA (as her Honour then was) in Featherstone v R. [28] In that case, her Honour said that the cases referred to by the applicant suggested "a significant upward trend in the length of sentences" for such offences and that this "impression accords with my recollection of the pattern of sentencing for sexual offences before the introduction of the Sentencing Act". Button J cited a similar expression of opinion (and recollection) by RS Hulme J in PWB v R. [29] Button J concluded that "my own impression is identical to that of Bell JA and RS Hulme J". [30]
4. It will be recalled that Smart A-JA relied on his own recollection in his dissenting judgment in PLV v R [31] while Mason P in MJR v R expressed reservations about a system that relied on "sentencing judges with excellent memory spans".
5. In MPB v R Garling J (with whom RA Hulme J agreed) made the following observations: 89 Finally, reference should be made to the fact that in some cases, judicial recollection has formed a basis for, or else has provided a confirmation of, the existence of a sentencing practice or pattern: see Bell JA in Featherstone at [45], R S Hulme J in PWB at [68] and Button J in Magnuson at [127]-[129]. 90 However, the use of judicial recollection is apt to be unreliable and can be inequitable in its application. It is apt to be unreliable because it arises out of the experience of a particular judge which may not reflect a sufficiently broad base or depth of experience to allow the formation of a view as to a broad-based sentencing practice. As well, the greater the passage of time, then the less reliable a recollection becomes. As McHugh JA said, albeit in a different context, "memories fade": Herron v McGregor (1986) 6 NSWLR 246 at 254E. His Honour's remarks in Longman v The Queen (1989) 168 CLR 79 at 107, about the fallibility of human recollection and the greater margin for error as the time period increases, are applicable in principle here. 91 As well, there is an inequity in relying on judicial recollection, because whether the particular judge allocated to conduct the sentencing hearing has such a recollection or not, is purely a matter of chance. The longer the time period between when the events occurred and the time at which the sentence is being imposed, the greater the prospect is that the allocated judge will not have any recollection of earlier sentencing patterns or procedures. In such a case, an applicant may be disadvantaged when compared with a case in which the judge claims to have such a recollection. 92 As well, the use of judicial recollection can, if it is to be the principal basis for the establishment of a sentencing pattern, lead to procedural injustice. How is it that one challenges the judge's stated judicial recollection? What if it is wrong or if it differs from another judge's recollection? Does a party to the sentencing process in front of that particular judge lead material to point out that other judges have different recollections? If so, in what form should that be led? None of these steps provide a particularly attractive reason for the use of judicial recollection. There is no great benefit to be gained from the use of such judicial recollection, and seemingly significant prejudice may arise from its use. Very great care must be taken in cases in which such recollections are accessed.
6. Basten JA, dissenting in the outcome and in the application of R v MJR, said at [17]: Although in PLV Smart AJ (in dissent) accepted that reliance on memory, if available, was appropriate (at [107]-[108]), it would be anathema to the consistent application of legal principle if one offender were to obtain the benefit of a judge's experience and recollection that earlier sentences were more lenient, whereas another offender would not because another judge had no such experience or recollection.
7. I share the doubts expressed by Mason P, Basten JA and Garling J as to the equity and utility of sentencing judges (and judges of appellate courts) relying on their memories of the sentencing patterns in cases that were decided two and three decades earlier.

Ground one: the learned sentencing Judge did not correctly apply the principle of general deterrence

1. There is no substance in this ground of appeal. All the sentencing Judge said in relation to general deterrence was that: [I]n sentencing the offender I have taken into account the need for the sentence to reflect general deterrence and denunciation of his behaviour.
2. The applicant relies on the fact that the Crown Prosecutor appearing at sentence made a submission that general deterrence was of "paramount importance" in such a case. Putting aside the correctness or otherwise of that proposition, which need not be determined here, there is nothing in the remarks on sentence to suggest that Judge Hanley either accepted that submission or acted upon it.
3. A submission was advanced in this Court which, at least implicitly, contended that "general deterrence could apply differently in the context of historical sexual offending". While maximum penalties have been increased and sentencing patterns are more severe, no authority was cited to support the proposition that general deterrence was not a significant factor in sentencing offenders for the sexual abuse of children in the 1970s and 1980s.
4. The submission continued that the combination of factors established in the offender's subjective case ought to have resulted in general deterrence having less of a role to play. I do not accept that this is correct. There are some circumstances in which it has been held that a particular kind of offender may be an "inappropriate vehicle" for sentences containing a large component of general deterrence. That includes children and young offenders and offenders who suffer from an intellectual disability or mental illness of some kind. Such a principle might also be invoked, albeit rarely these days, when offences are committed "on the spur of the moment, either in hot blood or in drink or both". [32] However the fact that an offender is elderly and infirm, along with the other subjective and mitigating circumstances that were established on the applicant's behalf, are not matters that generally lead to a diminution of the role of general deterrence.
5. Dr Furst made it clear that the applicant did not suffer from any relevant mental illness. The offences involved the abuse of two children over a lengthy period of time and, while there was a link between the offender's own experience as a victim of such offences and his commission of these offences, with a consequent reduction in his moral culpability, there was no evidence that would support the proposition that general deterrence did not have some role to play.
6. There is nothing in the remarks on sentence to suggest that his Honour did any more than treat general deterrence as one of the many factors to be taken into account in sentencing the offender for the sexual abuse of his children.
7. I also note in passing that Spigelman CJ in R v MJR said at [14]: Where the sentencing practices have increased by reason of greater salience being given to issues of general deterrence, e.g. because of increased prevalence, the practice at the time of conviction would appear to be entitled to greater weight.
8. However, the context in which that remark was made, and the ultimate conclusion reached by his Honour, lead me to disregard the observation in determining this ground.
9. Nevertheless, for the reasons I have given, this ground of appeal must fail.

Ground two: The sentencing Judge erred in giving effect to his own personal knowledge of historical sentencing practices

1. The applicant submitted under this ground that the sentencing Judge "made an impermissible use of personal judicial memory" because (it was submitted) his Honour "did not limit the application of judicial memory to simply confirming that sentencing practice has moved adversely to the offender. Instead personal judicial memory was used as a basis for the existence of a sentencing practice."
2. It was submitted that the following passage in the sentencing judgment disclosed such an error: I will take into account the maximum penalties and acknowledge I am required to sentence the offender in accordance with the sentencing practices relevant at the time of the offences if they can be identified. I am satisfied that I am able to identify these based on the material that I have been provided with and my knowledge of sentencing at that particular time.
3. In fairness to the sentencing Judge, two things should be observed about this passage of his remarks on sentence. First, it was but one paragraph of a much lengthier exposition of the approach that his Honour took to the fact that he was sentencing an elderly offender in relation to offences committed many years before and at a time when sentencing patterns were far less severe. Secondly, his Honour was guided by the authority in this Court suggesting that a Judge's memory of sentencing patterns at the time might be used to confirm a pattern of sentencing that is otherwise established by appropriate means.
4. By reference to the judgment of Button J in Magnuson v R, Judge Hanley said that he was satisfied that the following principles should apply: - 1. A court sentencing an offender for historical offences must reflect the sentencing practice that existed at the time of the commission of the offences. 2. In doing so it is (if possible) necessary to have regard to sentencing patterns and statistics that existed at the time of the offences.
5. His Honour referred to the fact that he had been provided with a number of reports, case summaries for the relevant period as well as comparative case summaries and helpful submissions by the prosecutor on the issue. His Honour went on to make the following observations about the kinds of changes that have taken place since the offences were committed: a) Sentences imposed for these types of offences at the time of the commission were markedly more lenient. b) Non-parole periods represented approximately a third to 50% of the head sentence which is significantly less than is the practise now. c) Offences that were then defined as indecent assaults (see s 76) included acts that are now defined as "sexual intercourse", in the Crimes Act and which now involve significantly greater penalties, head sentences and in some cases standard non-parole periods to be applied. Acts such as cunnilingus and digital penetration are no longer regarded as "indecent assaults" but acts of "sexual intercourse". d) The sentence needs to reflect the overall criminality of the offending behaviour and the non-parole period represent the minimum term of incarceration having regard to all the purposes of sentencing and any other factors identified in the sentencing process. Taking into account the submissions by the parties in respect of the judgments they have referred me to further emphasises that each sentence must pay particular attention to the facts and circumstances relevant to the offender and the offences.
6. Reading the portion of the remarks on sentence dealing with the correct approach to be taken when sentencing for historical sexual offences, I am satisfied that his Honour did no more than that which was authorised by the earlier judgments of this Court, and in particular the decision in Magnuson v R which his Honour considered at some length. Contrary to the applicant's submissions, Judge Hanley used his own memory of the practice at the time in a very limited way, namely, to confirm that the material that had been placed before him to establish the pattern and practices of sentencing at the relevant time represented an accurate reflection of those patterns and practices.
7. I adopt the criticisms of the use of "judicial memory" made by Basten JA and Garling J in MPB v R. In my opinion, sentencing judges and judges of this Court should rely on the cases decided by this Court, reliable statistics and case summaries for the relevant period rather than their own recollection of events decades before. There is, by now, a body of appellate authority that supports the general propositions I set out above in paragraph [40]-[44]. It will be for the parties to provide the Judge with statistics and case summaries that allow the Judge to determine the patterns of sentencing at the relevant time for offences of a similar kind.
8. The ground of appeal as formulated and argued accepts the limited way in which judicial memory might be used and it is unnecessary to determine whether (as I am inclined to think) it ought not to play any part in the process at all.
9. Dealing with the ground of appeal advanced, I accept that if the sentencing Judge allowed his own subjective and untested memory to prevail over the material with which he was presented, I would conclude that he fell into error and the Court would be required to exercise the sentencing discretion afresh. However I am not satisfied that this is what occurred. The things his Honour said in relation to the changes in sentencing practices are uncontroversial and favourable to the applicant. I am not satisfied that his Honour used his own memory in order to establish a "range" of sentences for the particular individual sentences which he was required to indicate pursuant to s 53A(2)(b). Nor did his own memory dictate the total aggregate sentence that was ultimately imposed.
10. While I accept that there is significant merit in the criticisms made by Queens Counsel in relation to the use of judicial memory, I am not satisfied that the sentencing Judge in this particular case erred in the manner contended by ground 2 or that his own memory of sentencing patterns and practices dictated to any degree the sentences that were imposed.
11. For those reasons, I would also reject ground two.

Ground 3: The aggregate sentence is manifestly excessive with respect to the head sentence and minimum term

1. The applicant contended that the total aggregate sentence, and the total aggregate non-parole period, was manifestly excessive. Reference was made to a number of comparable cases. [33] In addition to the aggregate sentence and non-parole period, the applicant contended that the indicative sentences nominated by Judge Hanley for counts 2 and 4 were manifestly excessive. Reliance was placed (correctly) on the observations of RA Hulme J in JM v R where his Honour noted that while the indicative sentences are not amenable to appeal, they "may be a guide as to whether error is established in relation to the aggregate sentence". [34] I will deal first with the sentences indicated in relation to counts 2 and 4.
2. In complying with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act, the sentencing Judge indicated both the total sentence for each offence and the non-parole period in relation to each count. I note in passing that, unless a standard non-parole period applies to an offence, it is not necessary to indicate the non-parole period that would have been imposed "had separate sentences been imposed instead of an aggregate sentence". [35] However, the statute does not prohibit the indication of a non-parole period and the periods nominated in this case merely reflected his Honour's decision to impose a non-parole period that represented 50% of the total sentence.

Count 2

1. The indicative sentence for count 2 was 18 months with a non-parole period of 9 months. This was the sentence after the application of the discount of 25% for the plea of guilty. The offence was charged under s 76 of the Crimes Act which attracted a maximum penalty of 6 years imprisonment. The offence as it stood in 1975 encompassed a wide range of sexual conduct directed towards females under the age of 16 years. The victim was the applicant's natural daughter. She was just five years old. The applicant touched her inside her underwear and, with his other hand, removed his penis and told his daughter to touch his penis. The incident only came to an end because the applicant's wife screamed because she had seen a snake. While the physical act was, as the applicant submitted, toward the lower end of acts then contemplated by s 76, the breach of trust was substantial and the age of the victim a significant factor in determining the appropriate sentence. The sentencing Judge accepted that the offence lay "towards the lower end of objective seriousness". The applicant accepts that a custodial sentence was appropriate. I am not satisfied that the length of the sentence indicated was beyond a permissible range.

Count 4

1. The indicative sentence for count 4 was 45 months with a non-parole period of 22 months. The offence was also charged under s 76 of the Crimes Act. The victim was aged 15. She was the applicant's natural daughter. The applicant performed cunnilingus on the child. The sentencing Judge assessed this offence as falling within "the upper range of objective seriousness" for an offence captured by s 76 (assault and commit an act of indecency). The applicant submitted that this finding was "not open" to his Honour. However, an assessment of the objective seriousness is a matter within the peculiar province of the sentencing Judge. [36] It was also submitted that the indicative sentence for count 4 was "difficult to reconcile" with the indicative sentences for counts 1, 3 and 6. Counts 1 and 3 involved digital penetration when the children were much younger (aged 9 years). The same putative sentences were indicated for those counts as was indicated for count 4. It was open to the sentencing Judge to take the view that the age of the children was balanced against what his Honour considered to be the more serious act of performing oral sex on the child.
2. There is more merit in the complaint involving a comparison between the indicative sentence on count 4 with that indicated for count 6. Count 6 also involved an act of cunnilingus when the child was 11 years. She was asleep as a result of pain relief medication and woke up to find the applicant performing oral sex upon her. However, as the respondent points out, the sentencing Judge said that, applying the sentencing practices of the time, the sentence for count 4 would have been substantially, if not entirely, concurrent with the sentence imposed for count 5 - an act of carnal knowledge committed a short time later. Accordingly, the indicative sentence for count 4, even if it was disproportionate with the indicative sentence for count 6, had no effect on the aggregate sentence.

The aggregate sentence and aggregate non-parole period

1. I am not satisfied that the indicative sentences for counts 2 and 4 support a contention that the aggregate sentence exceeded an appropriate discretionary range.
2. The real question under this ground is whether the total aggregate sentence of 10 years and/or the aggregate non-parole period of 5 years were "plainly unjust" or "manifestly wrong". [37] I have considered the cases relied on by the applicant on the hearing of the appeal, along with the material provided to the sentencing Judge. [38] I have also considered the sentencing outcomes in other cases not referred to in the arguments under this ground. [39] Some of these cases are more serious than that of the applicant, some substantially so. [40] None of the cases is truly or entirely comparable with that of the applicant. The material establishes that sentencing patterns at the time of this offending were far more lenient than they are today, none of the cases relied on is truly comparable with the applicant's case.
3. The present case involved an egregious breach of trust, and repeated sexual abuse of the applicant's daughters, over a period approaching 10 years. The offending involved touching on the vagina, digital penetration of the vagina, cunnilingus and carnal knowledge of both girls when they were 11 and 15 years of age respectively.
4. There is no suggestion that the indicative sentence on count 7 was outside of an appropriate discretionary range. That was an act of carnal knowledge committed when the victim was 11 years of age. The indicative sentence was 7½ years. Even allowing for the sentencing practices of the time, the additional penalty imposed for the six other serious offences was only 2½ years. This shows that the sentencing Judge was acutely aware of those earlier sentencing practices and strongly militates against a finding that the total aggregate sentence was outside an appropriate discretionary range.
5. I am not persuaded that the aggregate sentence (or aggregate non-parole period) imposed on the applicant was unreasonable, manifestly wrong or unjust. Ground 3 must also be rejected.

Orders

1. The sentence imposed on the applicant was a stern one given his age, subjective circumstances and the sentencing patterns at the time of the offending. The matters argued under ground 2 raised an important issue. For those reasons I would grant leave to appeal. However, for the reasons I have given, the appeal must be dismissed.
2. Accordingly, the orders I propose are: 1. Leave to appeal granted. 2. Appeal dismissed.

Endnotes

1. See, for example, R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [57] (Mason P).
2. To protect the anonymity of the victims I will refer to them as X and Y.
3. See, for example, R v AGR, unreported CCA (NSW), 24 July 1998.
4. Section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
5. Supra (at note 1) at [33] (Mason P).
6. R v Shore (1992) 66 A Crim R 37.
7. R v PLV (2001) 51 NSWLR 736; [2001] NSWCCA 282.
8. For example, in R v Watson [1999] NSWCCA 227 and R v Moon [2000] NSWCCA 534; (2000) 117 A Crim 497.
9. R v Shore at 42.
10. The schedule of cases is set out in the judgment: R v Shore at 49-50.
11. R v Watson [1999] NSWCCA 227.
12. See R v MJR at [4]-[9] although it should be observed that Smart A-J was one of the two Judges who decided R v Watson.
13. R v MJR at [18]-[19], [31].
14. R v MJR at [12].
15. R v MJR at [15]-[16] citing OW Holmes Jnr, The Common Law (1882) London, Macmillan & Co and Fullagar J in Attorney General (NSW) v Perpetual Trustee Co Limited (1952) 85 CLR 237 at 285.
16. R v MJR at [103].
17. R v MJR at [104].
18. R v MJR at [105].
19. R v MJR at [44].
20. R v MJR at [55].
21. MPB v R [2013] NSWCCA 213 at [9]-[19].
22. See, for example, MPB v R at [20]-[25], Denham v R [2016] NSWCCA 309 at [41]-[46]
23. See MPB v R at [93].
24. Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, Regina v Wheeler [2000] NSWCCA 34 at [35]-[36], R v Knight (2005) 155 A Crim R 252 at [112], R v MAK; R V MSK [2006] NSWCCA 381;167 A Crim R 159 at [18].
25. Crimes (Sentencing Procedure) Act, s 53A.
26. Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231] (Button J); Tweedie v R [2015] NSWCCA 71 at [35] (RA Hulme J).
27. Magnuson v R [2013] NSWCCA 50 at [90], [127]-[129].
28. Featherstone v R [2008] NSWCCA 71; 183 A Crim R 540.
29. PWB v R [2011] NSWCCA 84.
30. Magnuson v R at [129].
31. R v PLV at [107]-[108] set out above at [28].
32. R v James Henry Sargeant (1974) 60 Cr. App. R. 74.
33. MPB v R (supra); Henderson v R [2016] NSWCCA 8; PH v R [2009] NSWCCA 161; AJB v R (2007) 169 A Crim R 32.
34. JM v R [2014] NSWCCA 297 at [39]-[40], propositions 11, 12 and 13.
35. See Crimes (Sentencing Procedure) Act, ss 44(2C), 53A(2)(b) and 54B(4).
36. Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J).
37. See, for example, Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ).
38. The cases relied on at the hearing of the appeal are listed at note 32 above. The material produced at the sentencing hearing included R v ED, unreported CCA (NSW) 22 November 1996, R v Clarke, unreported CCA (NSW) 18 February 1983 and brief summaries of 11 cases from Carter, "Australian Sentencing Digest" Law Book Company (1985).
39. R v AGR, unreported CCA (NSW) 24 July 1998; Magnuson v R (supra); Denham v R (supra).
40. Denham in particular is approaching the "worst case". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2017