Sentence erroneous
57 In any event, I accept the Crown submission that the sentence imposed for charge 3 and the Form 1 matters could not appropriately comprehend the criminality involved in charge 5 involving, as it did, a 13 year old boy being forced to fellate the applicant in front of ELD while the applicant was in a position of authority over both children. If his Honour was correct, as I believe he was, in holding that an appropriate sentence to impose for the fifth charge was imprisonment for 5½ years, how could an act of criminality warranting such a sentence be encompassed within a sentence that reflected the serious criminal activity involved in count 3 and having regard to the matters on the form 1, including as they did the offence involving SD?
58 My immediate impression was that the overall sentence imposed was manifestly inadequate to reflect the objective seriousness of the offences before the Court, and that impression is borne out by a more detailed examination of the structure of the sentences and the criminality involved in each of the offences for which sentence was passed. The failure to cumulate appropriately resulted in an overall sentence that is so far short of what was necessary to punish the respondent that this Court should intervene notwithstanding the principles which govern Crown appeals and are conveniently set out in the judgment of Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]. The necessary adjustment of the sentences can in no way be described as "tinkering" notwithstanding the length of the sentences involved.
59 I do not understand anything said in Johnson v The Queen (2004) 205 ALR 346 to suggest that a sentencing judge can impose concurrent sentences where to do so would fail to reflect the totality of the criminality involved in the offences for which sentence is being imposed, or to permit a sentencing judge to inflate the sentence for one offence to encompass the criminality of another. See also R v Hayes [2004] NSWCCA 156 per Levine J at [28]. In any event an effective sentence of 9 years imprisonment does not in my view sufficiently reflect the seriousness of the offences involved in charges 3,4 and 5 and the matters on the form 1, and a head sentence of 11 years fails to a very marked degree to denounce the conduct of the respondent and to provide sufficient retribution for his abuse of these children.
60 I appreciate that to a very significant degree a determination that a sentence is manifestly inadequate is a personal reaction to the sentence imposed as against the objective and subjective facts. The same may be said of a finding that a sentence is manifestly excessive. Of course the consequences of the two findings are so different, at least as they impact upon the offender, that the court must approach the former finding with considerable circumspection and temper the personal reaction to the sentence with due regard to the discretion that resides in the sentencing judge and the limitations on this Court to intervene on behalf of the Crown.
61 I have refrained from using epithets to describe the conduct of the respondent in order to maintain judicial equanimity. However, the offending was of a most serious nature and the circumstances in which the offences were committed are replete with aggravating features. These may not be quite the worst type of offences of their nature but they are not far from it. Concern or sympathy for the respondent by reason of the history of the sentencing proceedings can go only so far in ameliorating the punishment that such offences deserve and that the community expects.
62 Considerations such as "triple jeopardy' and the uncertainty and frustration felt by the respondent must not be disregarded but they have to be weighed against the seriousness of the offences and the public interest in appropriate punishment being imposed on offenders notwithstanding their personal circumstances. Double jeopardy, or even triple jeopardy, is not a concept that is to be considered in a vacuum. The uncertainty or disappointment experienced by the respondent as a result of the Crown appeal and the failure of Acting Judge Moore to impose the sentence he intended cannot be compared with that of an offender who, for example, does not know whether he will be required to serve a gaol sentence pending the outcome of a Crown appeal or one who has the expectation of an early release date frustrated by a failure of the sentencing judge properly to exercise the sentencing discretion at first instance.
63 In the present case I am not persuaded that the effect upon the respondent of the failure of the judicial system to punish him appropriately is such that it should operate significantly in his favour or should relieve a court from doing its duty to protect the public. Nor should it dissuade this Court from intervening when it is confronted by a sentence that so far falls short of what was required. To the extent that his Honour may have imposed this sentence as a result of overly taking into account triple jeopardy and delay in the finalisation of the sentencing proceedings, he erred.
64 In coming to this view I take into account that Judge Sides was mistaken in believing that the offences, or some of them, were committed while the respondent was on bail for a traffic offence. The Crown concedes that the respondent had failed to appear in respect of a Court Attendance Notice and therefore was not subject to any undertaking as to future conduct, as would be the case had he been arrested and released on bail. However, in the circumstances of this particular matter and having regard to the nature of the offence for which he was to attend court, I do not believe that as a factor of aggravation it would have been a matter of any significant moment. In any event, the sentence is so inadequate that his Honour's discretion miscarried in some other more fundamental way.
65 I accept that the present offences were not part of an ongoing abuse of a child over many years, but that consideration does not avail the respondent. The offences were committed in circumstances that discovery was unlikely given the complicity of the two other adults who might have offered protection to the children. There is little doubt that the conduct would have continued had not ELD had the fortitude to bring the matter to the attention of school authorities. Judge Sides did not treat these as isolated instances and the offences commenced against ELD shortly after she arrived at the premises in circumstances where the respondent knew that she was having trouble in her relationship with her mother and at school. There is no doubt that the respondent used his influence over the two women to obtain their assistance, and that is a matter of particular aggravation. The commission of the offences so blatantly in front of other children is an aggravating feature that I have not encountered before.
66 The delay in these matters being finalised is a relevant consideration but again it is a matter that has to be considered in context. The effects of delay referred to in R v Blanco (1999) 106 A Crim R 303 were not significant in the present case. I have already referred to the uncertainty in which the respondent was left by reason of the history of the sentencing proceedings, but he must have been certain that he was to serve a lengthy sentence before he had any prospect of release to parole or otherwise. His demonstrated rehabilitation during the period was not a matter that loomed large, and the offences could in no way be regarded as stale.
67 The respondent's protective status was a relevant matter but as was recognised in R v Way [2004] NSWCCA 131 at [178] the sentences imposed for offences of this kind have involved in them an element of leniency because of the conditions in which offenders find themselves because of the reaction of other prisoners to their crimes. Again it is a matter that is added into the mix of the various objective and subjective factors and the relevant purposes of punishment that resolve themselves into an appropriate sentence. There was material placed before this Court as to his current prison status and the effect that any increase in his sentence might have upon his custodial position.
68 This Court has been referred to a number of decisions of this Court on the basis that they indicate a range of sentencing for such offences. They have limited value because of the varying factors involved in what is an exercise of discretion and their limited number. Simply having regard to the number of children involved or the nature of the sexual acts committed cannot determine the seriousness of the offences before the Court or those in other cases, upon which reliance is placed on behalf of the applicant. I doubt that sentences thought to be appropriate in 1993 are necessarily a sound guide to sentencing in 2003 in light of the increasing awareness and concern about such offences in the intervening period. In any event I consider that the criminality of the respondent was considerably greater than those of the applicants in the decisions to which the Court was referred. For example, I do not consider offences by a schoolteacher, as serious as they might be, to be the equivalent, or anything like it, of offences as grave as these committed by a person in the position of a father or stepfather.
69 There are offences that, because of the manner in which they are committed and the circumstances surrounding them, simply stand out from the usual run of offences of their kind and for that reason call for punishment of a particularly severe nature. The sentences imposed for such matters may fall outside the range that might otherwise be considered as applicable, simply because the offences fall outside the normal range of offending. These were in my opinion offences of that nature. They were such that the applicant deserves to be treated as an example to others in the community and there is nothing in the material relating to his personal circumstances, that was placed before the sentencing judge or this Court that, to my mind, indicates that such an approach is inappropriate.
70 The applicant had the benefit of a finding of special circumstances by Judge Sides. I do not believe that finding was justified in that there was nothing that indicated that the applicant should have the benefit of earlier parole eligibility than would be the case if the statutory proportion applied. There was a significant degree of double counting by reason of his Honour taking into account matters of mitigation to reduce the overall sentence and then using them again to find special circumstances without explaining why those matters should further reduce the minimum period that the respondent was required to serve in custody. See R v Fidow [2004] NSWCCA 172 at [18] and Way at [178].
71 This is not to suggest that matters relevant to the determination of the term of the sentence are not also relevant to the determination of the non-parole period but due regard must be had to the fact that the legislation requires the finding of special circumstances and that is, in my view, something more than the existence of factors that merely mitigate the sentence as a whole and have already been used for that purpose.
72 As was pointed out in Fidow a finding of special circumstances is now such a common event in sentencing that the currency has been devalued. After referring to statistical information which shows that 84.77 per cent of prisoner had a ratio of non-parole period to full term of 66.7 per cent or less, the Chief Justice stated: