Ground 1: Manifest Excess Having Regard to Sentencing Patterns at Time of Offence
78In R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368, Spigelman CJ, with whom Grove and Sully JJ, and Newman AJ agreed, held at [31] that it was appropriate for a Court to take into account:
"... the sentencing practice as at the date of commission of an offence when sentencing practice has moved adversely to an offender."
79MJR approved an earlier decision of this Court in R v Shore (1992) 66 A Crim R 37, in which Badgery-Parker J, with whom Mahoney JA and Hunt CJ at CL agreed, approved as correct the trial judge's expressed approach to his task which was as follows, namely, that as far as possible, the sentencing judge should:
"... seek to impose upon the offender a sentence appropriate not only to then applicable statutory maxima, but also to then appropriate sentencing patterns."
80The principle in Shore, as approved in MJR, has been regularly applied by this Court since the decision was delivered.
81The most recent example of this is the decision of this Court in Magnuson v R [2013] NSWCCA 50. However, application of the principle has been difficult: see Whealy J in R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497 at [23], Smart AJ in R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [107] and Sully J in MJR at [104].
82The difficulty arises because the sentencing court is being asked to reflect sentencing patterns or practices from earlier times, in a sentence being imposed at a much later time. In order so to do, the court must have a clear picture of what those earlier sentencing patterns and practices were. And, that picture must be as comprehensive as is possible.
83In some circumstances, it will be possible for the relevant sentencing pattern to be capable of being readily discerned. As cases such as Shore, Featherstone v R [2008] NSWCCA 71; (2008) 183 A Crim R 540, PWB v R [2011] NSWCCA 84; 216 A Crim R 365, and Magnuson show, a comprehensive identification of similar cases, or else references to readily available statistical databases may assist in establishing earlier sentencing patterns. But, as experience shows, such sources need to be considered with some care because of inherent difficulties with them. For example, are the cited cases truly representative of those decided over the period, or else how is it that the statistical tables or analyses provided take into account, and identify, the wide variations in objective criminality and subjective circumstances. Statistical tables of sentencing outcomes are always to be treated with care.
84However, if a sentencing pattern is readily, and reliably discernable, then such material ought be put before the sentencing court for it to be taken into account. Ordinarily, it is not to be thought that a sentencing court will know, without assistance, what earlier sentencing patterns were. Much less is it to be ordinarily thought to be appropriate that material of this kind is not put before a sentencing judge and then is deployed on an appeal to this Court.
85Whether or not such a sentencing pattern can be reliably discerned, other historical matters relevant to sentencing practice can be identified, and ought be considered as part of the sentencing process. One such historical matter is the then existing statutory regimes under which a person would have been sentenced, including whether the legislation provided for, or else sentencing practices reflected, non-parole periods of a specific length or ratio to the overall sentence: see AJB v The Queen [2007] NSWCCA 51 169 A Crim R 32 at [36]-[38] per Howie J, Adams and Price JJ agreeing; MJL v R [2007] NSWCCA 261 at [27] per Hidden J, Campbell JA agreeing, at [43]-[48] per Smart AJ, Rosenstrauss v R [2012] NSWCCA 25 at [16] per Basten JA.
86However, in ascertaining any legislative provisions which may impact upon sentencing practices, the court does not engage in understanding the impact, if any, of executive practices on sentence. A ready example was the, now discontinued, executive practice of granting remissions to prisoners with respect to their head sentence: see AJB at [31]. Even if this practice was not truly an executive one, the operation of the remission system ought not be reflected in sentences which are imposed now: Rosenstrauss at [10]-[12] per Basten JA, R S Hulme and Schmidt JJ agreeing.
87The guide which is entirely objective and is easily ascertainable, and therefore which is likely to be of most use to a sentencing court, when attempting to impose sentences which accord with an earlier practice or pattern, is the maximum penalty fixed by the law for the offence charged, together with the range of criminality encompassed by the offence charged. By having regard to these features, a sentencing judge will be able to readily assess where the particular offence charged falls along the spectrum of conduct encapsulated in the offence, and accordingly how the particular offence ought be viewed against the maximum penalty fixed by the legislation.
88As Howie J said in Moon at [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 seriousness of the offence: Dodd (1991) 57 A Crim R 349, and be proportional to the criminality involved in the offence committed: Veen (1979) 143 CLR 458. 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."
89Finally, 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].
90However, 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.
91As 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.
92As 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.
93This Court has held that when sentences were imposed when the Parole of Prisoners Act 1966 was in operation (as it was at the time of the offences in counts 1 to 4), the non-parole periods imposed were usually in the order of one-third to one-half of the head sentence: See: AJB v R [2007] NSWCCA 51 at [36]; GRD v R [2009] NSWCCA 149 at [20]; and BP v R; R v BP [2010] NSWCCA 303 at [154]-[156]. This is factor that a sentencing judge should take into account in considering whether there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
94Against this background of discussion of principle, it is necessary to see what the sentencing judge did in this case. His Honour was referred to the principles to which I have drawn attention, at least in the broad. His Honour was not provided with any table of cases, or other research material which would have enabled him to establish the existing sentencing patterns.
95He did, however, have his attention drawn to the approach taken by Howie J in Moon, which involved considering the primacy of the maximum sentence imposed for the offence and the range of conduct which fell within the offence as it then stood.
96Counts 1 to 4 on the indictment charged offences under s 76 of the Crimes Act 1900, which as it then stood, was the offence of indecent assault against a child under the age of 16 years. It was repealed in 1981. At the time of the offences in Counts 1 and 2, the maximum penalty was 5 years. At the time of the offences in Counts 3 and 4, the maximum penalty had been increased to 6 years.
97The offence of indecent assault, contrary to s 76, included within it many offences which today fall to be categorised as sexual assault under current legislation. Prohibited conduct, involving penetration and including fellatio and cunnilingus, were included within the offence under s 76. There was then a much broader range of conduct susceptible to charges under this section: see BP at [158] per Fullerton J; Nelson v R [2007] NSWCCA 221 at [17] per Latham J.
98Although not the subject of Ground 1, it is convenient here to describe Counts 5, 6 and 7. Counts 5 and 6 charged offences against s 61M(2) of the Crimes Act, which carried a maximum penalty of 10 years imprisonment. An offence against s 61M(2) deals with conduct by way of indecent assault which is aggravated by the fact that the victim was under the age of 16 years. It does not include sexual assault by way of sexual intercourse as that term is defined in s 61H of the Crimes Act. The range of conduct capable of being charged under this section is not as broad as under s 76. Count 7 charged an offence against s 66B of the Crimes Act of attempted sexual intercourse with a child under the age of 10 years. It carried a maximum penalty of 20 years.
99In respect of each offence, the sentencing judge allowed a discount of 25 per cent to reflect the applicant's early pleas of guilty. He was well entitled to do this.
100The sentencing judge described each of the offences in Counts 1 and 2 as "extremely serious" but made no attempt to relate the conduct to the spectrum of conduct which was covered by s 76.
101In determining the sentence, the judge imposed a fixed term of 12 months. In so doing, the judge indicated that it was his intention to impose a non-parole period of 12 months, with a balance of term of 12 months, that is, a total sentence of 2 years. He thought, in light of the other sentences which were being imposed at the same time, it was more expedient to impose a fixed term of imprisonment equivalent to the non-parole period. No complaint is made about the use of a fixed term. In the complex of sentences which the judge was dealing with, this was an appropriate way to proceed.
102In order to consider whether the sentence imposed was excessive, it is appropriate to first consider the notional point at which the sentencing judge started. The effective undiscounted sentence imposed on the applicant for each of Counts 1 and 2, which were wholly concurrent, was 2 years 8 months. This is the commencing point for the consideration of the ultimate sentence imposed. This starting point was over half of the maximum sentence available. The applicant submitted that this was, in the result, manifestly excessive and that, in accordance with the sentencing practice at the time, the applicant was unlikely to have received custodial sentences at all, let alone those of the length imposed.
103The Crown accepts that for cases of indecent assault, the sentencing practice of the 1970's did not mandate a custodial sentence in every case, but submitted that for indecent assault cases "... ordinarily a custodial sentence would be appropriate ...": see Hunt CJ at CL in R v Baxter (NSWCCA, unreported, 25 May 1994) and also R v Mark O'Sullivan (NSWCCA, unreported, 22 October 1989).
104The Crown also accepts that the offences in Counts 1 and 2 were not the most serious of their kind since they did not involve penetration. However, the Crown submits that they were nevertheless serious because they involved a victim who was only 7 years old, and the offences being committed by a father upon his daughter amounted to a breach of trust of the highest order.
105This Court held in Magnuson that the pattern of sentencing which existed in the 1970's and 1980's for sexual offences against children was such that the sentences were shorter than those which would be imposed now, for equivalent offending conduct.
106I am prepared to accept, as did the sentencing judge, that the offences were serious because of the extent of the breach of trust involved, but what was required of the sentencing judge was that he should have made an assessment of where the offences fell on the spectrum of conduct encompassed by an offence against s 76 of the Crimes Act. This he failed to do. Having regard to that range, I am not satisfied that these offences fell above the mid-point of the range. On the contrary, the criminality fell well below that mid-point and could not justify the sentences which was imposed for Counts 1 and 2.
107I am satisfied that the sentences for Counts 1 and 2 were manifestly excessive when viewed in the context of the sentencing practice of the time. It needs to be emphasised that this conclusion does not reflect, nor is it intended to reflect, current sentencing practices.
108The sentencing judge imposed the sentences on Counts 3 and 4 in a similar way to Counts 1 and 2. His Honour described the conduct as serious, but again made no assessment of where the conduct lay along the spectrum of conduct encompassed by the offence of aggravated indecent assault under s 76.
109He also imposed a fixed term of 18 months on each Count. In so doing, he indicated that each fixed term was equal to the term which he would have imposed by way of a non-parole period, and that he would have imposed a balance of term of a further 18 months.
110The starting point for this sentence, prior to the reduction for the plea of guilty, was therefore a total of 4 years. This represents an undiscounted sentence of two-thirds of the maximum then available of 6 years.
111The applicant submits that the sentences imposed were, for reasons essentially similar to those put with respect to Counts 1 and 2, manifestly excessive having regard to the sentencing practices at the time.
112The Crown submits that the sentences imposed "whilst firm", were within the discretionary range, particularly having regard to the fact that the conduct was the second separate occasion upon which an indecent assault had been perpetrated by the applicant upon his daughter. The Crown submits that, although the victim was older than at the time of the indecent assaults in Counts 1 and 2, she was nevertheless still quite young and well below the age of 16 which was proscribed by the section.
113Having regard to the spectrum of criminality which was encompassed by the offence charged, the objective criminality of these offences was not above the mid-point of the range. I am satisfied that the criminality fell below that mid-point, and objectively, was at the lower end of the range.
114In my view, the sentences for Counts 3 and 4 were manifestly excessive.
115As between Counts 1 and 2 on the one hand and Counts 3 and 4 on the other, the applicant submits that the period of accumulation of 6 months was excessive, and there should not have been any accumulation. This submission is reflected in the submission that both sentences were manifestly excessive.
116There are two difficulties with this submission about accumulation. The first is that the offences on Counts 1 and 2 and those on Counts 3 and 4 were separated by a period of more than 5 years, and were entirely separate instances of criminality. Unless the sentencing judge provided for some accumulation, he would have failed to reflect the totality of the criminality involved. The second difficulty is that the submission of the applicant's counsel to the sentencing judge accepted that there should be an accumulation as between Counts 1 and 2 on the one hand, and Counts 3 and 4 on the other, albeit he submitted that the accumulation should be " ... a matter of months, rather than years"
117I would not be prepared to accept that there can be any legitimate complaint about the fact that the sentencing judge accumulated by a period of 6 months the sentences in respect of Counts 3 and 4 on the sentences imposed in respect of Counts 1 and 2. The accumulation meant that the applicant was serving an effective period of 6 months for Counts 1 and 2. There is nothing about accumulation of that order, in light of the sentences which were imposed, that is excessive. I would not be prepared to uphold the applicant's submissions with respect to this aspect of Ground 1.