MLP v Regina

Court of Criminal Appeal (NSW)|2006-09-06|Before: Grove J, Kirby J, Hislop J

JUDGMENT OF: Grove J at 1; Kirby J at 2; Hislop J at 58

DECISION: (1) Leave to appeal granted; (2) Appeal allowed; (3) The sentence of 16 years imprisonment confirmed, but the non parole period varied to 11 years commencing on 12 May 2005 and expiring on 11 May 2016.

CATCHWORDS: Criminal Practice & Procedure - convicted sexual intercourse 9 year old daughter - isolated act - offence involves person under age 10 - whether fact 9 years and isolated act took out of mid range - issues when standard non parole period - error in approach.

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

Regina v AJP (2004) 150 A Crim R 575 Shannon v Regina [2006] NSWCCA 39 FV v Regina [2006] NSWCCA 237 R v Way (2004) 60 NSWLR 168 R v Trevenna [2004] NSWCCA 43 R v George [2004] NSWCCA 247 CASES CITED: Power v The Queen (1974) 131 CLR 623 Bugmy v The Queen (1990) 169 CLR 525 R v Moffitt (1990) 20 NSWLR 114 R v P [2004] NSWCCA 218 Ibbs v The Queen (1987) 163 CLR 447 R v Davis [1999] NSWCCA 15 R v L (unreported, NSWCCA, 3.7.86)

PARTIES: MLP (App) Regina (Resp)

COUNSEL: P Boulton SC (App) N Noman (Crown/Resp)

SOLICITORS: P White (App) S Kavanagh (Crown/Resp)

IN THE COURT OF CRIMINAL APPEAL 2006/1265

GROVE J KIRBY J HISLOP J

Wednesday 6 September 2006 MLP v REGINA Judgment 1 GROVE J: I agree with Kirby J. 2 KIRBY J: On 10 May 2005, "MLP" (the applicant) was arraigned before Garling DCJ and a jury in respect of the following offences: Count 1: Sexual intercourse with a person under the age of 10 years (namely 7 years) between 1.1.01 and 31.12.02 (s66A Crimes Act 1900) (maximum penalty: 25 years imprisonment). Count 2: (in the alternative) Indecent assault of a person under the age of 10 years (namely 7 years) between the same dates (s61M(2) Crimes Act 1900) (maximum penalty: 10 years imprisonment). Count 3: Sexual intercourse with a person under the age of 10 years (namely 9 years) between 1.2.03 and 1.7.03 (s66A Crimes Act 1900)

Count 4: (in the alternative) Indecent assault of a person under the age of 10 years (namely 9 years) between 1.2.03 and 1.7.03 (s61M(2) Crimes Act 1900). 3 After a short trial, the jury returned a verdict of not guilty in respect of counts 1 and 2, but guilty in respect of count 3. 4 On 6 October 2005, Garling DCJ sentenced the applicant to 16 years imprisonment (12.5.05 to 11.5.21), with a non parole period of 12 years (12.5.05 to 11.5.17). The applicant seeks leave to appeal against that sentence.

The Notice of Appeal. 5 The application for leave to appeal identified five grounds, namely:

Ground 1: His Honour erred by determining that the offence fell into the mid range of seriousness for an offence of the relevant kind.

Ground 2: His Honour erred by failing to give adequate weight to the fact that the complainant was aged nine years at the time of the commission of the offence.

Ground 3: His Honour erred by failing to take into account the fact that the offence was an isolated act.

Ground 4: His Honour erred by finding that there were special circumstances but then imposing a non-parole period that was seventy five percent of the total sentence.

Ground 5: The sentence is manifestly excessive. 6 His Honour said, in his remarks on sentence, that he believed the acquittal of MLP on counts 1 and 2 was related to the age of the complainant at the time of the incident, she then being seven years old. There was no appeal against conviction, based upon inconsistency. 7 Before considering the grounds of appeal, I should describe the offence in count 3. The Incident. 8 MLP was the father of the complainant, who will be referred to by the pseudonym "Jennifer". MLP had separated from his wife. He arranged to have access to his three children to take them on a camping holiday. Jennifer was then nine years old. She had a sister aged seven and a brother aged five. 9 MLP had a Kombi van. The back of the van had been set up as a bed. MLP parked the van in a remote area. At bedtime the children got into their pyjamas and went to bed and the applicant got into bed with them. Before they went to sleep each child was cuddled by MLP, beginning with the youngest. One gathers that Jennifer was physically next to her father. When it was her turn, he pulled down her pyjama pants and her underpants. He then pulled her on top of him. She felt his penis and it was hard. He then inserted his penis into her vagina for about ten seconds. When the complainant was later interviewed and asked what she felt, she said this: (p12) "It probably hurt on the inside and on the outside as well ... " 10 When asked whether she had seen anything, the complainant responded with these words: (p29) "A. No, 'cause I, I just closed my eyes 'cause it hurt so much and I didn't want to cry." 11 Whilst this was happening, the complainant's sister was awake. She asked her father what he was doing. He said: "Nothing". The sister gave evidence that she saw her father naked under the blanket with Jennifer and that Jennifer was struggling to hold back tears. 12 The next day the applicant told his daughter not to tell her mother. She did not do so for some time. However, in July 2003, which was some months later, she told her mother what had happened. Her mother gave evidence that, having told her, she "burst out crying, just fell apart and said, 'Daddy told me never to tell you this'." The mother asked her daughter whether she had asked her father to stop. The complainant responded: "Yes, I was trying to move away, but Daddy held me down." 13 The mother also asked her daughter whether she had cried. The complainant responded: "I tried not to, but tears were coming out of my eyes. Daddy doesn't care how I feel, Daddy went out and lit a fire ... " 14 The police were notified. A medical examination was arranged. The doctor who examined the complainant confirmed that her hymen had been torn. He said he would have expected that to have occurred when she was first having intercourse. 15 The applicant denied his guilt. He has maintained his innocence.

Grounds 2 and 3. 16 It is convenient to postpone the consideration of ground 1 and to deal first with grounds 2 and 3 which, for ease of reference, I repeat.

Ground 2: His Honour erred by failing to give adequate weight to the fact that the complainant was aged nine years at the time of the commission of the offence.

Ground 3: His Honour erred by failing to take into account the fact that the offence was an isolated act. 17 A standard non parole period has been prescribed (s54B Crimes (Sentencing Procedure) Act 1999, and table in Division 1A) in respect of the offence in count 3, namely, 15 years imprisonment. The standard represents "an offence in the middle of the range of objective seriousness" (s54A(2)). It was said on behalf of the applicant, that his Honour, in characterising the offence as being "in the middle of the range of objective seriousness", made two discrete errors. He either overlooked or undervalued matters relevant to an assessment of objective seriousness. 18 The first suggested error related to the complainant's age. She was, as mentioned, nine years old. Her birthday fell on 12 January. The offence was committed some time between February and 1 July 2003, so that she may have been a couple of months older than nine years. The offence created by s66A concerns persons under the age of 10 years. In this context his Honour said this: (ROS 11) "One of the submissions which has been made is, because of her age, it would not necessarily fall into the middle of the range. That is, she was between nine and ten years of age at the time, but I do not believe that is a correct approach I could take. The charge itself relates to any child under ten years of age and the victim was under ten years of age. I accept that you may get a situation where you have a very young child where it could be a severely aggravating factor in deciding where it comes in the range, but it seems to me that what I have got to do is have a look at the overall effect of all those facts to see where it falls in the range of this sort of offence." 19 In Regina v AJP (2004) 150 A Crim R 575 an issue arose concerning whether the sentencing Judge had wrongly taken the victim's age into consideration as an aggravating factor, the age of the victim being an element of the offence. Simpson J said this (Howie J agreeing): "35 ... A third factor mentioned in s21A(2)(e), that the complainant was vulnerable (by reason of her youth), should not be taken into account as an aggravating factor because her age was an element of the offences itself ( The Queen v De Simoni ; s21(4)). Age of the victim is relevant in the assessment of objective gravity in that, generally, the younger the victim, the more serious might be the offence." 20 In Shannon v Regina [2006] NSWCCA 39, in the context of a charge under s66C of the Crimes Act (sexual intercourse without consent with a person above the age of 10 but less than 16 years), Howie J (Mason P and Barr J agreeing) said this, referring to certain remarks by the sentencing Judge: "[28] In my opinion, with respect, that passage does not disclose any error unfavourable to the applicant. The age of the child is clearly a relevant consideration and the younger the child, the more serious the offence. It was an element of each of the offences in the present case that the child was between the ages of 10 and 16 at the time of the sexual intercourse, but that does not mean that a judge cannot take into account the age of the child falling within that range. [29] Further, although the section is, as the Judge recognised, concerned to protect the vulnerable, it does not follow that a judge cannot take into account the particular vulnerability of the child by reason of the child's young age or other circumstances other than the child's age. For example, in the present case the judge would have been entitled to find that the complainant was particularly vulnerable by reason of her age, the fact that her father was seriously ill such that she felt she could not complain to her parents, and because the applicant knew that she was susceptible to his sexual advances because of her infatuation with him. ... " 21 FV v Regina [2006] NSWCCA 237 concerned a charge of attempted aggravated sexual intercourse by a father with his daughter, she then being 15 years old (s61J(1) Crimes Act). The following was said by me (McClellan CJ at CL and Hoeben J agreeing) in that context: "[59] ... First, the age of the child is important in determining the criminality of the offender. The younger the victim, the more serious the criminality ( T v R (1990) 47 A Crim R 29). Here the victim was 15 years old. The age limit in respect of the offence under s61J(1) is 16 years. The complainant's relative maturity enabled her to protest strongly, such that the appellant abandoned his attempt." 22 Unquestionably, the age of the victim is an important consideration in determining the objective seriousness of the crime and whether it falls within the mid range. But it does not follow that, because age is relevant and because the section contemplates a range of ages, an offence against a child approaching the age of 10 cannot be regarded, or should not be regarded, as being within the mid range. The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable. Whilst the age of the victim was a matter for his Honour to consider (which he obviously did) his remarks do not betray error. 23 The second suggested error was that, in determining the objective seriousness of the offence, his Honour was obliged to take into account that it was an isolated act. It was not a case, the applicant pointed out, where there was a pattern of behaviour. Count 3 was not in the nature of a representative count. The written submissions made on behalf of the applicant said this: "15. His Honour's failure to mention the fact that the incident was an isolated incident meant that his Honour failed to give weight to that factor. This in turn must have led his Honour to over value the objective seriousness of the offence." 24 Reference was again made to Regina v AJP (supra) which was a Crown appeal. In that case, the sentencing Judge characterised the offence as being in the mid range of objective seriousness and yet fixed a non parole period which represented only 10 percent of the standard non parole period. There was plainly error. Simpson J, in that context, described the response of counsel for the respondent in these words: (Howie J agreeing): "19 Senior counsel for the respondent answered this by challenging the finding that the offence did in fact fall within the mid range of objective seriousness of offences against s66A. The principal basis for the challenge was that, as his Honour expressly recognised, many, if not most, offences against s66A are committed in the context of a history of sexual abuse and of multiple and various offences committed against the same victim. An offence against s66A in the mid range of objective seriousness would be one that was committed as part of a pattern or history of such abuse. Having recognised that such a history is a typical feature of s66A offences, his Honour nevertheless considered that 'not helpful' in determining what might constitute an offence in the mid range of objective seriousness. Senior counsel for the respondent contended that this indicated that his Honour regarded the absence of a history of abuse as irrelevant to the evaluation of the objective seriousness of the offence, and that this was erroneous. 20 Care must be taken, in accordance with Way ([101]-[102]) to avoid characterising a typical or common instance of the offence as necessarily one that falls within the mid range of objective seriousness. However, it is correct that the experience of the courts shows, as his Honour mentioned, that repetitive abuse is frequently associated with s66A offences. While a pattern of behaviour is not determinative of the evaluation, that a particular offence is an isolated instance is not irrelevant to that evaluation. ... " 25 Whilst his Honour did not state that he was dealing with an isolated act, it cannot be inferred that he had overlooked that fact. He presided at the trial. The trial involved an indictment with multiple counts. It culminated in a verdict of guilty on one count only. That much was obvious and did not need to be stated. 26 The context within which an offence is committed is obviously relevant, whether it be an isolated act or an act in the course of a relationship. The fact that conduct is an isolated act does not determine, however, whether the offence is within the mid range. It may be in the mid range, even though an isolated act, depending upon the nature of the act. 27 I believe, therefore, there is no substance in the complaints made in respect of grounds 2 and 3.

Ground 1: His Honour erred by determining that the offence fell into the mid range of seriousness for an offence of the relevant kind.

Ground 4: His Honour erred by finding that there were special circumstances but then imposing a non-parole period that was seventy five percent of the total sentence. 28 The applicant complains, in essence, about two things. First, his Honour did not determine whether the offence was within the mid range of objective seriousness in the manner required by the Act and R v Way (2004) 60 NSWLR 168. Secondly, having determined that there were special circumstances, his Honour did not then make an appropriate adjustment to the sentence. 29 Before examining what his Honour did, and the validity of these complaints, it is as well to be clear about what was required by the Act and the commentary provided in R v Way (supra). 30 As mentioned, the standard non parole period represented "an offence in the middle of the range of objective seriousness" (s54A(2)). The Court is required "to set the standard non parole period" unless it determines that there are reasons for setting a longer or shorter period (s54B(2)). The Court may depart from the standard, but only for reasons which are identified in s21A of the Act (s54B(3)). Section 21A obliges the Court, when fixing a sentence, to have regard to aggravating and mitigating factors (which the section identifies), as well as other objective and subjective factors affecting the relative seriousness of the offence. The Court, by s54B(4), is enjoined to make a record of its reasons for increasing or reducing the standard non parole period, identifying each factor taken into account. 31 R v Way, in a passage quoted by his Honour, identified the issues which must be addressed in characterising whether the offence was one in the middle range of objective seriousness: (para 118) "(i) the objective seriousness of the offence considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s21A(2) and (3), and as incorporated by the general provisions in s21A(1)(c) and by the concluding sentence to s21A(1)." 32 Simpson J in R v AJP (supra), provided a helpful distillation of the principles emerging from R v Way where she said this: "13 The following propositions emerge from Way and subsequent cases: (i) while s54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; ... (ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]); (iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] - [77]); (iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus , the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] - [86]); (v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (para [101]); (vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] - [102]); (vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319." 33 The non parole period is, of course, but one aspect of the sentence. In respect of an offence where there is a standard non parole period, the sentencing Judge must at some point address the following issues when imposing a custodial sentence: · First, what term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? Guidance may be provided by the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct (cf R v Trevenna [2004] NSWCCA 43, per Barr J; R v George [2004] NSWCCA 247). · Secondly, should the offence be characterised as being in the mid range of objective seriousness? That task should be approached in the manner suggested by Simpson J (supra), intuitively evaluating the objective seriousness of the offence and looking to those matters in s21A, aggravating or mitigating, that relate to the offence (including the offender's state of mind). Matters in s21A which form part of what is usually termed "the subjective case" of the offender are not relevant to the issue of whether the offence falls within the mid range. If the offence falls within the mid range, the standard non parole period should apply, subject to the remaining issues. · Thirdly, are there other reasons in the matters identified in s21A (relating to the offender) for departing from the standard non parole period? The subjective case of the offender (issues such as youth or prospects of rehabilitation (s21A(3)(h)) may furnish reasons for departing from the standard non parole period. It should be noted that s21A(1) provides that the matters specifically identified in the subparagraphs of s21A are in addition to any other matter that the Court is required or permitted to take into account under any Act or rule of law. The fact that the offender may need to serve his sentence in protection, for instance, although not mentioned in s21A(3), may be taken into account in determining whether there should be a departure from the standard non parole period. · Fourthly, there is the issue of special circumstances. Ordinarily, the non parole period bears a relationship to the term of the sentence defined by s44(2) of the Crimes (Sentencing Procedure) Act 1999, that is, the non parole period must not be less than three quarters of the term, unless there are special circumstances. The sentencing Judge is therefore required to address that issue. If there is to be an adjustment, then it must not so deplete the non parole period that it is reduced below the minimum term which justice requires the offender to serve (Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525). 34 There is no requirement that these issues be addressed in any particular order (R v Moffitt (1990) 20 NSWLR 114), although the issues are obviously inter-related such that a decision on one aspect may have implications for another. In addressing these issues, the sentencing Judge should, however, bear in the mind the following advice provided in R v Way: "124 The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at [45]) cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect." 35 The comment made by the Court of Criminal Appeal in R v P [2004] NSWCCA 218 at [26] is also relevant. The following was said: "[26] Notwithstanding the temptation, provided by the terms of s44 of the Crimes (Sentencing Procedure) Act, to think that his Honour's approach of fixing the non-parole period and then independently fixing the balance of the term is the correct approach, in fact it is not. That was decided in R v Moffitt (1990) 20 NSWLR 114 at 134 in respect of earlier legislation but in R v Way the court indicated that R v Moffitt should be followed in relation to the current wording of s44." 36 Turning, then, to the remarks on sentence, his Honour analysed the offence and concluded as follows: (ROS 11) "I cannot find any way in which I could say that it did not fall into the middle of the range, at least of these type of offences ... " 37 His Honour then turned to s21A, moving through the subparagraphs of that section dealing with aggravating and mitigating factors. A number of the subparagraphs he considered dealt with the offence. They were therefore material to his determination of whether the offence was objectively within the mid range. Others, however, concerned the offender and his subjective case, and were irrelevant to what I have termed the second issue (supra para [32]). They included the following matters which were described in the Crown's written submissions in these terms: (para 9)

· "although the applicant had a prior criminal record, he had nothing of this nature on his record; he was nevertheless not a person of good character; · there was no evidence about the unlikelihood of the applicant re-offending; · there was no evidence to support a submission that the applicant had turned the corner; ... · the applicant would serve his sentence in protective custody; · the applicant had a history of depression, had hepatitis C and he had undergone rehabilitation for drugs and alcohol [this rehabilitation pre-dated the offence] (although these were not relevant to the commission of the offence)." 38 At the end of this analysis, his Honour stated the following conclusion: (ROS 13) "I cannot find that it comes outside the middle of the range. If I was to find anything, I would find that it may be slightly in excess of the middle of the range." 39 His Honour then considered and found special circumstances, after which he fixed a sentence of 16 years imprisonment with a non parole period of 12 years. However, that approach does not, in my view, conform with the requirement of the Act as explained in R v Way, as set out above. I believe, therefore, there was error. Since I have formed the view that another sentence is appropriate (s6(3) Criminal Appeal Act 1912), I believe there is a need to resentence. 40 It is unnecessary to consider ground 5.

Resentence. 41 Before dealing with the circumstances of the offence and of the applicant, it is useful to refer to the remarks made in R v AJP (supra) concerning the offence (s66A of the Crimes Act 1900). The Court in that case was dealing with the same offence in the context of the amendments which came into force on 1 February 2003 which introduced standard non parole periods for certain offences, including s66A. Simpson J said this: "37 In my opinion, the legislature having fixed 60% of the statutory maximum as the standard non-parole period for s66A offences, it is inevitable that sentences for these offences will increase. Since the statutory maximum has always been acknowledged to be reserved for the worst offences of their kind, and since non-parole periods have (at least since the introduction of the Sentencing Act 1989) been benchmarked (prior to consideration of special circumstances justifying variation) at three quarters of the total term, a worst category s66A offence could ordinarily be expected to carry a non-parole period of eighteen and three quarter years. And yet, under the new provision, and absent reasons for departure, a mid range offence carries a standard non-parole period of 15 years, that is 80% of what the non-parole period that might previously have been expected to be imposed in relation to a worst case: that represents a remarkable increase. However, that is what the legislature has decreed, and it is for this Court to implement the dictates of the legislature." 42 Howie J added: "52. In offences of the category here being considered, as Simpson J has pointed out, the standard non-parole period has been set at a high proportion of the maximum sentence, especially having regard to the usual (and statutory) proportion between non-parole periods and the balance of the term of imprisonment. This suggests that, so far as objective circumstances are concerned, the difference between a middle range case and a case in the worst category is not very great, a view which the severity of the standard non-parole period rather suggests. (It is indeed difficult to see the logic in this position: it gives the term 'middle of the range' a meaning that seems to be rather different from its meaning in ordinary language.) Does it follow that a 'bottom of the range' case is also very little removed in point of objective seriousness from a middle range case? Having regard to the available jurisdiction, it seems to me that the answer must be in the negative. At the same time, what previously would have been regarded as middle of the range offences would almost certainly not have attracted sentences of the order of the standard non-parole period. The legislature must be taken to have decisively intervened to increase the penalties such offences should attract and to have indicated, as Simpson J holds, that sentences generally for this offence should be increased. I should point out, to avoid misunderstanding, that I do not regard the present case as being at the bottom of the range of objective seriousness." 43 Here, his Honour identified the circumstances relevant to the offence, which I adopt. The applicant was 39 years old. The complainant was his daughter and was nine years old. There was actual penile penetration, such that the hymen was torn. The intercourse was short (ten seconds). However, it caused the complainant pain. It was undertaken simply for his sexual gratification. MLP was not affected by alcohol or drugs. The offence occurred at night in an isolated area. It occurred in the presence of two small children. The complainant was in his care. It involved a significant breach of trust. 44 There were also mitigating features. The offence was not planned. It was an isolated act. It occurred without threat to the complainant. Nonetheless, penile penetration of a child so young is obviously very serious. In Ibbs v The Queen (1987) 163 CLR 447, the Court said this: (at 452) "The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined." 45 Commenting upon that decision, Wood CJ at CL said this in R v Davis [1999] NSWCCA 15: "[66] In Ibbs v The Queen ... the High Court rejected the proposition that each kind of sexual penetration as defined in the section, there under consideration, was to be regarded as neither more nor less heinous than another. The Court said that such a proposition cannot be accepted. It appears to me that any other view would beggar common sense, and that penile/vaginal penetration of a child is significantly more serious than many of the other forms of conduct encompassed within s66A ... " 46 The breach of trust which this offence involved added to its seriousness. In R v L (unreported, NSWCCA, 3.7.86) Lee J made the following comment which is apposite: (at 5) "[I]t is fundamental that the court recognise that young children are, in the family situation, virtually helpless against sexual attack by the male parent. The very intimacy and privacy of family life makes it possible for the parent seeking to gratify his lust on his child to do so with virtual impunity, for experience shows that the child rarely complains ... " 47 In my view the offence falls within the mid range of objective seriousness. Subject to a consideration of the subjective case and the issue of special circumstances, the standard non parole (15 years imprisonment) therefore has application. 48 Turning to the subjective case of the applicant, again it is useful to draw upon his Honour's remarks. The applicant will now not see his children. He has served much of his sentence already in protection and will likely serve the remainder of his sentence "in some sort of protective custody". 49 MLP has a number of health problems. The material tendered on sentence included reports from Dr Gillespie and a psychologist, Ms Anita Duffy. It is apparent that MLP has suffered from chronic depression for much of his life. He has, on one occasion, attempted suicide. He experienced difficulties at school with both reading and writing. His three sisters each suffer from macular degeneration and are in receipt of a blind pension. He has had difficulties with his eyesight but, at this point at least, has not been diagnosed with the disease from which his sisters suffer. 50 However, MLP developed Hepatitis C eight years ago, which is still active. He needs treatment. He also has chronic fatigue problems with his joints, causing not only pain but rashes. He suffers from rheumatoid arthritis. 51 The applicant has, throughout his life, had difficulty in obtaining and retaining employment. He was at one time self employed, operating a business as a gardener. He has also experienced periods of unemployment. He has, on occasions, resorted to both drugs and alcohol to the point where he required rehabilitation. He underwent rehabilitation with a facility operated by the Salvation Army, which he successfully completed in March 2003. He was well regarded by persons associated with the Salvation Army and that treatment. 52 The applicant maintains his innocence. There is no remorse. He has a criminal record for a variety of offences, many of them drug related. They do not include sexual offences. Although he has been subject to a bond, he has not previously been in gaol. 53 On the question of rehabilitation, his Honour said this: (ROS 12) "He was not a person of good character. I cannot say he is unlikely to re-offend, I simply have no evidence. I hope that he has good prospects of rehabilitation." 54 I am prepared to find that his prospects of rehabilitation are reasonable. 55 The personal circumstances of the applicant furnish, in my view, a reason for departing from the standard non parole period, both because of his health problems and the need for him to serve his sentence in protection. 56 Although I have arrived at my view by a different path, I believe the term fixed by his Honour, 16 years imprisonment, was appropriate. I also adopt, and for the reasons his Honour gave, the finding of special circumstances. I believe, however, that the statutory ratio should be moderated and that the non parole period should be fixed at 11 years.

Orders. 57 I therefore propose the following orders:

The sentence of 16 years imprisonment confirmed, but the non parole period varied to 11 years commencing on 12 May 2005 and expiring on 11 May 2016. 58 HISLOP J: I agree with Kirby J. **********

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Judgment (28 paragraphs)

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Cases Cited (13)