His Honour then imposed the sentences which I have summarised.
18 The Crown complained that the sentencing Judge failed specifically to refer to the facts of the offences proved, citing R v Gebrail (unreported) CCA, 18 November 1994 where at 6 Mahoney JA, with whose reasons both Newman and James JJ agreed, said:
"It is, in my opinion, the duty of the trial judge in sentencing in a case such as this to make clear the findings of fact which have been made by him for the purpose of sentencing and the facts upon the basis of which he has assessed sentence: see generally R v Smith (1993) 69 A CrimR 47 at 48; R v Martin (1981) 2 NSWLR 640 at 642."
19 While the inadequacy of description of the facts may be explained by the way the trial was conducted, one consequence is that nothing is said about the impact on the complainant of the respondent's conduct over these impressionable years of her life. The first two offences were committed when the complainant was aged 9 or 10. This put her at the lower end of the age range for the second offence charged. The second offence was committed in the family home when the complainant's mother was in hospital. The third and fourth offences were committed when the complainant was aged 12 and 13 and under the authority of the respondent. In the case of the third offence charged, the respondent came upon the complainant when she was asleep. In the case of the fourth count, he took advantage of her mother's absence overseas.
20 The impact on the complainant, then a child, of these four occasions of sexual abuse, was not mentioned by the sentencing Judge though it can safely be assumed to have been traumatic and appalling. The maximum penalties the legislature has set for such offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A CrimR 151 at 154. In R v Hudson (unreported) CCA, 30 July 1998 at 3 Sully and Ireland JJ with whom Spigelman CJ agreed, said:
"Recognition is also given to the fact that children in a family situation are virtually helpless against sexual attack by the male parent and that children have a right to be protected from sexual molestation within the family and that this can only be achieved by the courts imposing sentences of a salutary nature."
21 Similarly, a child aged 13 or younger is virtually helpless in the family unit when sexually abused by a step-parent. All too often the child is afraid to inform upon the step-parent; see generally R v Bamford (unreported) CCA, 23 July 1991 per Lee CJ at CL at 5. The younger the victim the more serious is the criminality; see R v PWH (unreported) CCA, 20 February 1992.
22 The Crown submitted that the respondent's course of conduct and the repeated nature of the offences made the criminality more serious, see R v Skinner at 151 and that the sentencing Judge gave undue weight to the respondent's ill health. Taking these matters into account, together with the offender's position of trust and the absence of any suggestion of remorse, the sentences imposed were said to be manifestly inadequate.
23 The structure of the remarks on sentence does suggest that the sentencing Judge gave an overly generous discount on account of the respondent's health. The respondent's counsel, in opposing any interference by this Court with the sentences imposed, referred to Dr Singham's medical report and submitted that this Court had accepted that ill health, such as to cause an offender to experience prison substantially more harshly than otherwise, might cause a sentence to be less than otherwise would have been imposed. In R v L (unreported) CCA, 17 June 1996 the Court (Gleeson CJ, Badgery-Parker and Hidden JJ) said at 6:
"The fact that an offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require. It is the responsibility of the executive to provide for the care and treatment of its prisoners: R v Vachalec (1981) 1 NSWLR 351, per Street CJ at 353-4. If a prisoner's condition deteriorates during the course of the sentence such that his or her release ought to be permitted on humanitarian grounds, the executive is empowered to deal with the situation. Section 53 of the Sentencing Act 1989 preserves the Royal prerogative of mercy, and s25A(1) of the Act enables the Offenders' Review Board to grant parole at any time if the prisoner is dying or there are other 'exceptional extenuating circumstances': R v Jones (1993) 70 A Crim R 449, per Carruthers J at 457."
24 Their Honours referred to the judgment of King CJ, frequently cited, in R v Smith (1987) 44 SASR 587 at 589:
"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."
25 However, the Court in R v L went on at 8 to say:
"Where illness is seen to be relevant to the determination of sentence, its weight must be assessed in the light of all the circumstances of the case. Obviously, one of those circumstances will be the seriousness of the offence. In some cases it might lead to a reduction of the sentence otherwise appropriate, while in others it might justify a disposition other than a custodial sentence."
26 Their Honours quoted from R v Sopher (1993) 70 A Crim R 570 at 573 in which this Court said:
"An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health, or shortening of life."
27 In R v L their Honours said that a court cannot determine the bearing which an offender's illness might have upon sentence in the absence of adequate evidence as to the nature and extent of the illness and, where appropriate, its effect upon the conditions of the offender's incarceration. In the present case, the report of Dr Singham barely met these requirements. There was nothing to suggest that the Department of Corrective Services, meeting its responsibilities for the health of prisoners, would not be able to treat adequately the respondent for the conditions from which he suffered. The only comment about the effect of imprisonment made by Dr Singham was its possible contribution to depression.
28 The respondent sought to distinguish the facts in Skinner, but the principles to be applied are the same. Counsel referred to Judicial Commission statistics but acknowledged that these did not assist in the case of multiple offenders. The respondent relied upon what was said in Everett v The Queen (1994) 181 CLR 295 at 299 and submitted that no error was shown in Judge Ford's sentencing.
29 The right of the Crown to appeal against a sentence on the grounds of inadequacy is exceptional. However, where sentences imposed are so inadequate as to indicate error or departure from principle, or depart from accepted sentencing standards, they demonstrate error in point of principle which the Crown is entitled to have this Court correct; see Griffiths v The Queen (1977) 137 CLR 293 at 310; Everett at 300 and R v Barbara (unreported) CCA, 24 February 1997 at 6. The case must be a compelling one before this Court can interfere. It is not sufficient that this Court would itself, in the position of the sentencing Judge, have imposed a more severe sentence. However, sentences outside the permissible range of those the product of a properly exercised sentencing discretion prima facie manifest error; see House v The King (1936) 55 CLR 499 at 505. Even so, in the case of a Crown appeal, there remains a residual discretion as to whether the Court will interfere; R v L at 10.
30 In the present case, the seriousness of the offences of which the respondent was convicted in the circumstances of the case to which I have referred have led me to the conclusion that the sentences imposed were so inadequate as to indicate error by his Honour in the sentencing process. His Honour expressly acknowledged that the offences were very serious. It may be that the exercise of discretion went wrong with the determination substantially to reduce the sentences because of the medical evidence.
31 For present purposes, I accept, despite the sketchiness of the evidence, that full time custody for the respondent would be harsher than it would be if he were fully fit. But the mitigating consequence of this must be balanced against the seriousness of the offences. In that balance, in my opinion, the mitigating consequence is slight. His Honour wrongly treated it as "substantial". Quite simply the sentences imposed are well below the range for the offences found and do not reflect the objective seriousness of the offences; R v Dodd (1991) 57 A CrimR 349 at 354. Accordingly, the Crown has demonstrated that this Court may intervene to quash the sentences imposed and re-sentence the respondent. No discretionary matter has been advanced nor am I persuaded there is any which should lead us to refuse to do so.
32 On re-sentencing the respondent filed, without objection, and relied upon two affidavits by Mary Spiers Williams, both affirmed on 7 March 2000. To the first of these affidavits are annexed references addressed to the Court from members of the respondent's family which I have read and which reflect the deponents' opinions that he is an honest and hard working family man who has done his best to provide a happy and stable home for his wife and children. These references were given in the context that the respondent continues to maintain his innocence of all the offences charged.
33 The second affidavit annexes medical records from the Corrections Health Service. From these it can be seen that in November 1999 on more than one occasion the respondent attended on the Health Service and reported headaches. Our attention was also drawn to reports relating to pain in his hip region which he experienced over ten weeks, back pain which was slowly getting worse and pain at the back of his head. These matters were complained of in August and September 1999. A medical certificate in November 1999 refers to disc and back trouble and recommends a lower bunk on the ground floor. In September 1999, the respondent was referred to a radiology consultant for a CT scan of the "LS spine". This material shows a continuation of his chronic back problem, which is not surprising, but does not indicate any problem in obtaining appropriate treatment and medication.
34 In cases of this kind, little leniency can be expected for previous good character. The respondent has no other convictions. There remains no sign of contrition. No special circumstance was found by the sentencing Judge or has been advanced to support any reduction of the minimum sentence. In re-sentencing, this Court must, and I do, take into account what the High Court in Everett at 299 referred to as the jeopardy into which the respondent is put for the second time in regard to his freedom beyond the sentence imposed. The hardship of this uncertainty points the Court towards the bottom end of the appropriate range of sentence. The sentences imposed must reflect the total criminality of the offences for which the respondent has been convicted. As I have said, I accept that full time custody will be harsher for the respondent than if he were fully fit and I take this into account. Bearing all these matters in mind, I propose the following orders: