R v CMB

Judgment 1THE COURT: This is an appeal by the Attorney General pursuant to s 5D of the Criminal Appeal Act 1912 from the decision of Ellis DCJ imposing sentences upon the respondent on 4 April 2013. The respondent pleaded guilty to four counts of aggravated sexual assault contrary to s 61J and one count of aggravated indecent assault contrary to s 61M of the Crimes Act 1900. The s 61J offences each carry a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. The s 61M offence carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 5 years. The victim of these offences was in all cases the daughter of the respondent and they were committed in 2005 and 2006 when she was aged 11 and 12. His Honour imposed sentences upon the respondent in each case by way of bond to be of good behaviour for periods of 2 years and 3 years as follows: "1. The offender must be of good behaviour and appear before the court during the bond term if required. 2. The offender is to notify the Clerk of the Court of any change of address as approved by the Cedar Cottage Program Director. 3. The offender is to comply with the treatment undertaking signed on 14 November 2012. 4. The offender is to comply with all directions of the Cedar Cottage Program Director. 5. The offender is to remain in the Cedar Cottage Program until released from the Program by the Program Director." 2The Director of Public Prosecutions declined to lodge a Crown appeal against these sentences on 17 July 2013. On 26 July 2013 the Attorney General (unnecessarily) filed and served a notice of intention to appeal and an application for an extension of time within which to appeal. The Attorney General filed a notice of appeal on 6 August 2013. 3In this Court the Attorney General contends that Ellis DCJ erred in the following respects: 1A. In erroneously taking into account how certain further disclosures by the respondent of other offences would have been dealt with under regulations made pursuant to the Pre-Trial Diversion of Offenders Act 1985 at a time when the regulations had by then been repealed. 1B. In failing to have regard to the errors that had been made in referring the respondent to the Program in the first place. 1C. In giving no weight or insufficient weight to the objective seriousness of the offences. 2. By imposing sentences that were in the circumstances manifestly inadequate.

Background 4The respondent sexually assaulted his daughter NB on numerous occasions between 2004 and 2006 when she was aged between 10 and 12. This offending first came to light in 2011 when NB reported the incidents to police. She was by then 17 years of age. The respondent was interviewed by police on 27 October 2011 and charged on that day with 22 sexual offences against his daughter. That was later reduced to five counts of aggravated sexual assault contrary to s 61J of the Crimes Act, two counts of attempted aggravated indecent assault contrary to ss 61J and 344 of the Crimes Act and three counts of aggravated indecent assault contrary to s 61M of the Crimes Act ("the first set of charges"). 5The respondent entered pleas of guilty in the Local Court to the first set of charges. Because he had pleaded guilty to "child sexual assault offences" within the meaning of the Pre-Trial Diversion of Offenders Act, the respondent was potentially eligible for referral to the Pre-Trial Diversion of Offenders Program at Cedar Cottage. That Program was established under the Pre-Trial Diversion of Offenders Regulation 2005. Entry into the Program was conditional upon two events. First, the offender must be referred by the DPP for assessment pursuant to s 10 of the Act. Secondly, the offender must be assessed by the Program Director as suitable pursuant to s 14 of the Act. If a person gives an undertaking at the request of a court under section 23, the court is (subject to sections 25 and 28) to proceed to conviction of the person for the offence concerned but is not to sentence or otherwise deal with the person in respect of the offence: s 24 of the Act. After the person has complied with the undertaking and the requirements made by or under the Act or the regulations, no further proceedings shall be taken against the person in respect of the offence: s 30(1). 6On 3 April 2012 the DPP referred the respondent for assessment pursuant to s 10 of the Act. The DPP was informed that there were no places available in the Program at that time. The DPP informed the court of this advice, and the respondent was subsequently committed for sentence in the District Court. On 9 August 2012, a place became available in the Program so the proceedings were remitted to the Local Court. 7On 17 August 2012 the matter came before Magistrate Railton in the Gosford Local Court. His Honour erroneously purported to refer the respondent for assessment for consideration of whether he was suitable for referral to the Program, no doubt relying upon what he had been told by the solicitors for both sides. On 23 August 2012 the DPP wrote setting out his view that the respondent was suitable and inquired whether a place was available. The Program Director advised the DPP the following day that a place was available for the respondent in the Program. 8On 1 September 2012 the Regulation was repealed: see ss 10 and 11 of the Subordinate Legislation Act 1989. The effect of the repeal was that the Program was not available in relation to charges laid after 1 September 2012, but remained available in relation to charges laid before that date: s 30 of the Interpretation Act 1987. 9In the course of being assessed for entry into the Program pursuant to s 14 of the Act, the respondent disclosed to staff at Cedar Cottage that he had committed additional sexual offences against his daughter to which her statement had made no reference. He was therefore re-interviewed by police on 2 November 2012. He was cautioned at the commencement of the interview. The respondent indicated that he was making the further disclosures as part of the Cedar Cottage assessment process. He described an incident in which he had used his mouth to sexually abuse his daughter in the family home in May or June 2005 when his wife was at church. He described other offences that he had committed in the United Kingdom when NB was 9 years of age. He also spoke of other occasions where he had sexually abused NB in the same manner in Australia in 2006 when she was 12 years of age. 10The respondent was subsequently charged with five further counts of aggravated sexual assault contrary to s 61J of the Crimes Act and four counts of aggravated indecent assault contrary to s 61M of the Crimes Act. The charges were later reduced to four counts of aggravated sexual assault contrary to s 61J and one count of aggravated indecent assault contrary to s 61M ("the second set of charges"). 11The Program Director assessed the respondent on 7 November 2012 in respect of the first set of charges as being suitable for participation in the Program pursuant to s 14 of the Act. 12Both sets of charges were listed before the Gosford Local Court on 9 and 23 November 2012. The respondent pleaded guilty on 23 November 2012 to both sets of charges and he was formally committed to the District Court for sentence. On 31 January 2013 both sets of charges were listed at Gosford before Ellis DCJ for submissions on sentence. With respect to the first set of charges the respondent gave an undertaking to participate in the Program for 2 years from 14 November 2012. Although the respondent should then have been convicted on the first set of charges in accordance with s 24, that did not occur. With respect to the second set of charges, his Honour simply fixed 4 April 2013 as the date for sentence. 13The DPP appears from the outset to have taken the view that the respondent should not be sentenced to full-time imprisonment. The respondent's representative outlined the background to the charges and asked that the second set of charges be adjourned for sentence until the respondent had completed the Program. That course was not opposed by the DPP. The DPP indicated to the court that it would be "unfair, given that they are very serious charges" for the court to consider them at that time. 14Significantly, his Honour asked about the attitude of the victim. He was informed by the DPP that she had suffered psychological damage and had attempted suicide. The DPP also confirmed that the victim had never been asked for her views about her father entering the Program and that she had in fact changed her name and totally disassociated herself from her parents. It was, or should by then have been apparent, that the victim did not consent. 15His Honour observed that if the charges were to be adjourned for two years (as sought by the respondent) it would be "hardly likely" that he would be sentenced to a term of imprisonment. His Honour said, "if he was going to get a sentence of imprisonment, it ought to be now probably." The DPP's representative then acknowledged that the charges "do call for a custodial sentence" but stated that it was a "difficult situation" because the respondent had disclosed the offences as part of the Program. She indicated that it would be "against the spirit" of the Program to sentence the respondent to a custodial term and proposed that he should receive a suspended sentence. There was some discussion with his Honour about the imposition of s 12 bonds, conditioned upon successful completion of the Program. The DPP's representative acknowledged that she would be content with that course. His Honour indicated that he wanted to give the victim "an opportunity to understand all of this". The DPP's representative suggested that a victim impact statement might be appropriate. The proceedings were then adjourned to 4 April 2013 for sentence. 16On that day the DPP tendered the Crown briefs in respect of both the first and second sets of charges, reports from the Program Director dated 31 March 2013 and 3 April 2013, a four-monthly review report prepared by the Program Director and a victim impact statement. The respondent tendered a report from Dr Bruce Westmore dated 9 July 2012. Legal representatives for both sides indicated that they agreed that it would not be appropriate for the respondent to be sentenced to imprisonment. The DPP summarised the procedural history and informed his Honour that up until September 2012, when the Regulation was repealed, the making of further disclosures as part of the Program would not necessarily generate fresh charges. The respondent had to be charged with the second set of charges because the Regulation had not been renewed. As appears below, that was not a correct statement of the law. 17His Honour expressed a dislike for diversionary programs in cases where the victim did not agree, but stated that the case before him was different because the respondent was "trying to do the right thing" when he made the disclosures that led to the second set of charges. His Honour indicated that he was proposing to impose a s 9 bond for a term that extended beyond the length of the respondent's involvement with the Program on the first set of charges. 18His Honour proceeded to sentence the respondent to a two-year s 9 good behaviour bond in respect of the s 61M charge of aggravated indecent assault and a three year good behaviour bond in respect of the four s 61J charges of aggravated sexual assault. In his remarks on sentence his Honour referred to the procedural history and to the "lapse" of the Regulation. He concluded that "the only fair and just outcome" would be to "defer" sentence so that the respondent could complete the Program. He stated that this would mean that the respondent's position would then be "identical" to that of other defendants in criminal proceedings who were dealt with prior to the "lapse" of the Regulation. 19The DPP thereafter wrote to the victim and publicly announced on 17 July 2013 that he had declined to appeal against the sentences.

The legislative scheme 20The Program is constituted under s 30A of the Act. The purpose of the Program is "for the treatment of a person who commits a child sexual assault offence with or upon the person's child or the child of the person's spouse or de facto partner": s 30A(1). The rationale for the Program was explained by Barr J in R v Humphries [2004] NSWCCA 370 at [23] as being "to protect children and to encourage them to come forward without the fear of being held responsible for the break-up of families." 21That objective of protecting the victim is reflected in s 2A of the Act, which is in these terms: "2A Purpose of Act The purpose of this Act is to provide for the protection of children who have been victims of sexual assault by a parent or a parent's spouse or de facto partner. The Act provides for the establishment of a program administered by the Department of Health. In the implementation of the Act, it is intended that the interests of a child victim are to prevail over those of a person pleading guilty to a charge of sexual assault in relation to the child." 22The Act applies to a person who is charged with a "child sexual assault offence" committed upon particular categories of victims. Offences with which the respondent was charged fell within that term as defined. 23The Act provides that the prosecutor must first consider whether to refer an offender for assessment in relation to the offender's suitability for the Program. Section 10 of the Act provides that the prosecutor must consider the guidelines set out in the Regulation and must also ascertain from the Program Director whether a place for the offender in the Program is available. Prior to its repeal, cl 5 of the Regulation provided that the prosecutor should not refer an offender for assessment: "(a) if the child sexual assault offence with which the offender is charged is alleged to have been accompanied by acts of violence towards the alleged victim or others, or (b) if the offender is under 18 years of age, or (c) if the offender has a prior conviction for a sexual offence, whether in New South Wales or elsewhere, or (d) if the alleged victim is 18 years of age or more when the person first appears before a court in relation to the offence, or (e) if the person has previously been requested under section 23 of the Act to give an undertaking in relation to any offence." 24If an offender is referred for assessment as to his or her suitability to participate in the Program, the Local Court may adjourn the proceedings pending the assessment: s 13 of the Act. The offender must be assessed in accordance with the Regulation: s 14(1) of the Act. In this regard, cl 6 of the Regulation provided that the assessment must be "carried out by means of structured clinical interviews" of the offender and "such other persons acquainted with [the offender] as the Director may determine." 25A person who is to be referred for assessment in relation to the person's suitability for participation in the Program must be referred for assessment, and be assessed, in accordance with the regulations: s 14(1). The Director is then required to assess a person's suitability for the purposes of s 14(1) and in doing so may take into account any or all of a number of specified matters which appear to be relevant and any other matter which he or she considers to be relevant. Those matters include statements made to police in relation to the offence, relevant information concerning treatment, interviews conducted as part of the assessment, whether the offender accepts responsibility for the sexual assault of the child and demonstrates understanding of the impact of the offence, whether the offender and the offender's spouse or de facto partner are prepared and able to participate in the Program and whether such participation is in the "best interests of the child." 26If an offender is assessed as suitable for the Program, the charges must not be dealt with summarily: s 19 of the Act. Upon entry of a guilty plea in the District Court or the Supreme Court, the offender will be requested to enter into an undertaking to participate in the Program for a period not exceeding two years, and during that period to comply with all reasonable directions of the Director: s 23 of the Act. If an offender gives this undertaking to the Court, he or she will be convicted of the offence in question, but will not be sentenced or otherwise dealt with in respect of the charges: s 24 of the Act. 27The Act applies to an offender until an event occurs that causes the Act to "cease to apply in respect of that charge". These events include: Where the offender requests that the Act cease to apply: s 7. Where a prosecutor informs a Magistrate that an offender is not to be referred for assessment: s 12. (In this respect it should be noted that s 11 of the Act provides that the prosecutor must inform the Magistrate that the offender will not be referred if the prosecutor has ascertained that there are no available places for the offender in the Program). Where a prosecutor informs a Magistrate that an offender has been assessed as not being suitable for participation in the Program: s 16. Where an offender does not enter a plea of guilty to a charge (unless the person pleads guilty to another child sexual assault offence, and that charge is accepted by the Magistrate) or if an offender's plea of guilty is not accepted by the Magistrate: ss 17(3), 18 and 22. Where an offender does not comply with the directions of the Program Director pending the offender's appearance before a higher court: s 21. 28The offender may also apply to be released from an undertaking made to the Local Court at any time, in which event the offender will be sentenced as if the undertaking had not been given: s 25 of the Act. If an offender breaches an undertaking, and the breach is not minor or trivial, the court may sentence the offender as if the undertaking had not been given, or may extend it for a further period not exceeding 12 months: s 28 of the Act.

Grounds of appeal - errors Ground 1A: His Honour erroneously took into account how certain further disclosures by the respondent of other offences would have been dealt with under regulations made pursuant to the Pre-Trial Diversion of Offenders Act at a time when the regulations had by then been repealed. 29The appellant submitted that it was apparent from his Honour's remarks on sentence that he intended to structure a sentence that duplicated the effect of the Regulation as it had existed prior to its repeal. His Honour indicated that he proposed to "defer" the sentence in order to enable the respondent to complete the Program and then continued as follows: "Effectively this means that his outcome will be identical to that of all other offenders who have been honest and made admissions as part of their involvement in the Pre-Trial Diversion Program. As I say but for the lapse of the regulation, this offender would never have appeared before this Court." 30In R v ABS [2005] NSWCCA 255 the offender was unable to gain access to the Program due to the unavailability of places. The sentencing judge deferred sentence under s 11 of the Crimes (Sentencing Procedure) Act 1999 so as to enable the offender to undertake a rehabilitation course that was similar to the Program. The Court determined that a s 11 deferral was "entirely inappropriate" given the objective seriousness of the offending conduct. Buddin J observed at [18] that: "...reconciling the outcome provided for in s 24 of the Act with the way in which the courts, particularly in recent times, have approached the sentencing of offenders who have committed offences as serious as those which the respondent committed, may be thought to be extremely difficult, if not impossible." 31Moreover, the appellant contended that his Honour misconstrued the effect of the Regulation as it existed prior to its repeal in any event. At page 2 of his remarks on sentence his Honour said the following: "Originally, the regulations that deal with the pre-trial diversion of offenders program had a provision which allowed for full disclosure to be made and for a person to continue in the course without further charges or the matter being relayed back to the court. That is in fact what has occurred in the past for all those who have been diverted to the program and who have complied with the program. That is, further charges would not have been laid and the accused would not have been brought to this Court or sentence. Unfortunately, for some reason, the regulation lapsed in September 2012, or some six weeks before the present charges." 32That was an incorrect statement of the effect of the Regulation, which was unfortunately not drawn to his Honour's attention by any of the lawyers appearing before him in the proceedings. Prior to its repeal, the Regulation did not contain any protection concerning disclosures made during assessment for, or during the course of, the Program. The Program has never contained a provision at any time since the Act and the Regulation came into effect that modified the obligation for the Program staff to notify police when an offender confessed to further offences: see, for example, s 316 of the Crimes Act. 33The appellant contended that prior to the repeal of the Regulation, if an offender confessed to other offences during the course of the assessment for, or treatment in, the Program, those offences would have been reported to police and charges would have been laid in the usual way. His Honour stated that "but for the lapse of the regulation, this offender would never have appeared before this Court." That was an incorrect statement made during the proceedings that neither party sought to correct and which was in fact supported by the Crown's representative. 34The repeal of the Regulation did change the position in respect of the second set of charges, in that it was no longer possible for the second set of charges to be referred to the Program. Prior to its repeal, it would have been possible for the second set of charges to be referred to the Program, effectively combining both sets of charges. However, it is incorrect to say that but for the lapse of the Regulation the respondent would not have been charged or brought to Court: even if further charges were ultimately to be referred to the Program, they would still have been laid and the respondent would still have appeared before the Court during the assessment process and the giving of the undertaking. 35Additionally, prior to the repeal of the Regulation there was nothing that required further offences disclosed during the assessment process to be combined with earlier charges. Rather, the later charges would be subject to the procedures required by the Act and the Regulation, namely, referral by the DPP and assessment by the Program Director. The Regulation never had the effect of protecting further disclosures, nor did it require the offender to make any. 36The appellant contended that if the Regulation had not been repealed, it was not inevitable that the second set of charges would have been referred to the Program. For example, the Program Director may have determined, in accordance with s 2A of the Act, that it was no longer in the interests of the child for the respondent to be referred to the Program. The victim's attitude to her father being referred would likely have been particularly significant in this respect. She was by then almost 19 years of age. 37In these circumstances the appellant submitted that his Honour erred in finding that the Regulation previously allowed for full disclosure to be made of conduct amounting to further offences without further charges being laid or the matters coming before the Court and in presuming that all offenders who made further disclosures pursuant to the Program would necessarily be dealt with under the provisions of the Act. Ground 1B: His Honour failed to have regard to the errors that had been made in referring the respondent to the Program in the first place. 38The appellant contended that the respondent was not even properly admitted to the Program in respect of the first set of charges. 39When the matter first came before the Local Court, the prosecutor informed the court that there were no places available for the respondent in the Program. Section 11 provided that in these circumstances the prosecutor was required to inform the Magistrate that the respondent would not be referred for assessment. Section 12 further provided that where a prosecutor informs the magistrate that a respondent is not to be referred for assessment, "this Act shall cease to apply to the person in relation to the charge." 40There is no provision that re-enlivens the operation of the Act once it has "ceased" to apply. The appellant submitted that in such circumstances the prosecutor was not empowered to refer the respondent for assessment after the matter was remitted to the Local Court by the District Court. Section 23 of the Act is conditional upon the offender being "a person to whom this Act applies." It is therefore doubtful that the District Court had power under that section to accept the undertakings. In R v ABS at [16], Buddin J commented that where the court is informed that no place is available in the Program for an offender, the Act "ceases to apply" and "thereafter the matter could only proceed in what may be regarded as the conventional fashion." 41By reason of the committal of the respondent to the District Court and the subsequent remittal of the charges to the Local Court, there was a delay of almost ten months between the first return date of the charges and the second referral of the respondent for assessment. At the time of the second referral on 23 August 2012, cl 4 of the Regulation provided that the maximum adjournment period to enable the DPP to make a decision regarding referral was four weeks. The same clause provided that the maximum adjournment period to enable a decision to be made regarding assessment was eight weeks. 42The appellant accepted that any errors concerning the referral of the first set of charges to the Program were not the subject of this appeal and that this Court had no jurisdiction concerning them. The appellant submitted, however, that even though the errors were not detected below, they infected his Honour's decision to grant the respondent good behaviour bonds so as to give effect to a placement in the Program. The appellant also contended that the errors might be relevant contextually in the exercise of the Court's residual discretion. Ground 1C: His Honour erroneously gave no weight or insufficient weight to the objective seriousness of the offences. 43It appears that his Honour concluded that a good behaviour bond was appropriate only by reference to the unfortunate procedural history of the charges and the rehabilitative benefits of the Program. His only reference to objective seriousness is to be found in his Honour's remark at page 4 that: "Had he not been sent to the Cedar Cottage program, which this Court had nothing to do with, he would in the normal course of events [have] been committed to this Court for sentence and a lengthy sentence of imprisonment would have followed." 44All of the offences were committed after 1 February 2003. The appellant accordingly submitted that the offences in this case were objectively very serious having regard to the relevantly applicable standard non-parole periods. 45The repeated and continued nature of the offences over an extended period had also to be taken into account. As Buddin J remarked in R v ABS at [25], "[t]his fact deprived the respondent of any claim for leniency which may have been available to him had his offending only involved an isolated incident." See also R v Holyoak (1995) 82 A Crim R 502. The respondent engaged in various forms of sexual misconduct, each of which constituted a serious offence in its own right. 46The offences also involved the most fundamental breach of trust and abuse of parental authority: see R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1; R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466; s 21A(2)(k) of the Crimes (Sentencing Procedure) Act. The victim was also at a vulnerable age at the time of the commission of the offences and the offences caused her substantial emotional harm: s 21A(2) (g) and (l). The respondent instigated the offences and engineered the circumstances in which they were committed: see generally R v CJP [2004] NSWCCA 188. 47In R v ABS, Buddin J commented at [26] as follows: "[26] Offences involving acts of significant sexual exploitation against children are almost without exception met with salutary penalties. Moreover, the legislature has in recent years provided for increased penalties in respect of many such offences. It is an area in which the need to protect children from exploitation and to deter others from acting in a similar fashion assume particular significance: see R v Fisher (1989) 40 A Crim R 442; R v Burchell (1987) 34 A Crim R 149 at 150-151." 48Similar comments are to be found in R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 at [57] and R v TJH [2001] NSWCCA 433 at [35]. 49His Honour noted that the offending conduct involved acts that were "in the main" acts of indecency or cunnilingus. The remarks on sentence do not in terms otherwise address the specific seriousness of the criminal conduct concerned. The appellant contended that his Honour has accordingly failed in any way to take account of the objective seriousness of the offences. Ground 2: The sentences were manifestly inadequate 50The appellant submitted, uncontroversially in our opinion, that but for the fact that the offences came to light during the respondent's assessment for the Program, the sentences imposed would be well outside the range of permissible sentences for these particular offences. The prospect of rehabilitation alone would not have justified a non-custodial sentence. 51This is not a case where any particular factors such as mental impairment lead to a conclusion that deterrence, denunciation or retribution assumed some lesser significance than might ordinarily be the case. The appellant contended that, objectively assessed, the offences required the imposition of a substantial prison term. 52The single most important issue that demands consideration in this case is the effect and relevance of the fact that the circumstances underpinning the second set of charges only came to light as the result of the respondent's admissions made during the assessment phase of the Program. Does that fact support a conclusion that the imposition of good behaviour bonds was within a range of permissible outcomes? The appellant argued that it did not, for the following reasons. 53The appellant acknowledged that where an offender makes voluntary disclosure of involvement in serious crime that is unknown to police, and which may never have otherwise come to light, the offender is entitled to a "significant added element of leniency": R v Ellis (1986) 6 NSWLR 603 at 604; s 23(2) of the Crimes (Sentencing Procedure) Act. However, s 23(3) provides that a lesser penalty imposed as a result of assistance to authorities "must not be unreasonably disproportionate to the nature and circumstances of the offence." The appellant also acknowledged that as entry into the Program was to an extent conditional upon disclosure of all previous offending conduct, the respondent's revelation of the further offences was partly the result of coercion. 54These matters have to be balanced against the fact that the respondent was not given any false or misleading assurances or promises. He was cautioned. When he made the admissions he was in the course of being assessed for the Program. Acceptance was not guaranteed. He always faced the prospect of being sentenced for the further offences. 55The appellant also contends that it is significant that the respondent did not disclose the additional offences when first interviewed by police. The appellant referred to the remarks of Barr J in R v Humphries at [23] that "the applicant himself could have taken his chances of getting into the programme if he had been prepared to tell the police what had happened." See to like effect R v EGC [2005] NSWCCA 392 at [27]. 56In summary, the appellant adopted the position that even with the significant added elements of leniency arguably indicated by the particular circumstances in which the admissions were made, a sentence of full-time imprisonment was still appropriate.

The residual discretion to dismiss Crown appeals - discussion 57The appellant acknowledged that this Court has a residual discretion to decline to interfere with a sentence even though it is erroneously lenient: see Green and Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [1]. 58Section 68A of the Crimes (Appeal and Review) Act 2001 provides that an appeal court must not dismiss a prosecution appeal or impose a less severe sentence than would otherwise be appropriate, because of any element of double jeopardy in the respondent being sentenced again. That provision removes from consideration by this Court the distress and anxiety to which respondents to Crown appeals are presumed to be subject if they have to undergo sentencing for a second time and also prevents this Court from having regard to the frequency of Crown appeals as a sentencing principle: R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 at [141]. 59The conduct of prosecuting authorities nonetheless remains relevant: R v JW at [92]. The appellant conceded that there were at least two features of the present case that are relevant to the exercise of the residual discretion. First, delay in instituting this appeal. Secondly, the conduct of the DPP at first instance. 60In the present case there was a delay of three and a half months between the imposition of the sentence and the filing of a notice of intention to appeal. That occurred eight days after the DPP publicly announced his decision not to file a Crown appeal. The notice of appeal was filed ten days after that. 61The significant consideration is the extent and degree of prejudice that is occasioned by the delay. The prejudice may be great if the respondent faced a return to prison following completion of the original sentence. Even so, the seriousness of the crime may outweigh even substantial prejudice. Presumptively the respondent is prejudiced by the delay in this case to the extent that a non-custodial sentence was originally imposed: R v Y [2002] NSWCCA 191 at [34]; R v Tortell [2007] NSWCCA 313 at [63]. The appellant contended that the seriousness of the crimes being considered in this case outweighed the significance of any prejudice otherwise evident. 62More pressing would appear to be the circumstances that influenced his Honour in dealing with the respondent at the sentence hearing. The prosecution quite plainly contributed to his Honour being led into error. This is relevant to the exercise of the residual discretion: R v Allpass (1993) 72 A Crim R 561; R v Chad (NSWCCA, 13 May 1997 - unreported); R v JW at [92]. 63The facts sheet that was provided to his Honour correctly referred to the repeal of the Regulation and to the fact that in those circumstances the offences "must be dealt with at law." However, at the sentencing hearing the prosecutor not only acquiesced in the Court imposing a good behaviour bond, but also misled his Honour with respect to a highly relevant matter, namely, the operation of the Regulation prior to its repeal. Notwithstanding these matters, the appellant contended that the seriousness of the crimes and the manifest inadequacy of the sentences lead to the conclusion that this Court should intervene.

The respondent's position 64In response to ground 1A, the respondent submitted that the error was not material so that the ground was not therefore established. But for the repeal of the Regulation, the second set of charges could have been dealt with alongside the first set of charges. The respondent contended in those circumstances that the error was not material: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [83]. The change was relevant to the operation of the Regulation but only to the extent that "the technicalities were misunderstood by all parties concerned at first instance." 65The respondent contended that ground 1B was not a proper ground of appeal. Errors in relation to the respondent's admission into the Program on the first set of charges were irrelevant to the adequacy or inadequacy of any sentence imposed upon the respondent in relation to the second set of charges. 66The respondent dealt with grounds 1C and 2 together. He submitted that his Honour did take account of the objective seriousness of the offences when passing sentence. The difference between the parties in this respect would appear to be whether his Honour's reference to the likelihood of a substantial prison term was a sufficient recognition of the objective seriousness of the offences if the sentence imposed by his Honour did not itself otherwise appear to reflect or to give effect to that assessment. 67The respondent contended that his Honour demonstrated that he had a full appreciation of the objective seriousness of the offences and the prospect that they would ordinarily attract lengthy terms of imprisonment. His Honour also had a similar appreciation of the unavoidable context of the Cedar Cottage Program that the respondent was undertaking. It followed that the sentence was not manifestly inadequate having regard to the onerous nature of the Program and the careful monitoring of the respondent's behaviour to gauge compliance, his potential for progress to rehabilitation and the prospect that if the Program requirements were not met the respondent could be re-sentenced on all charges to a lengthy term of imprisonment. 68The respondent also drew attention to the importance of the limitation upon appellate review of the exercise of the sentencing discretion: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. This Court cannot simply substitute its opinion as to the appropriate sentence for that of the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672. On the contrary, this Court may only interfere where error is demonstrated: R v Tait (1979) 46 FLR 386 at 388; Wong and Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605 and 624. 69In support of these contentions the respondent made the following written submission: "30. As emphasised at the outset, a Crown appeal against sentence is concerned with establishing matters of principle for the governance and guidance of courts having the duty of sentencing convicted persons. This power, however, extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299-300; Dinsdale v The Queen (2000) 202 CLR 321, at 340-1, and Wong and Leung v The Queen at 624. Here, it is submitted, that in the unique circumstances of this case manifest inadequacy has not been established. Should this Court find otherwise the residual discretion is relevant." 70The so-called residual discretion was recently considered and discussed by the High Court in Green and Quinn at [1]-[2], [24] and [43] as follows: "[1] The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 ... is 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.' That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the 'residual discretion'. [2] In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice. Relevant circumstances include consequential disparity relative to an unchallenged sentence imposed on a co-offender and delay in the appeal process which may be associated with disruption of the offender's progress towards rehabilitation. In such cases it may be appropriate for a court of criminal appeal, in the exercise of its residual discretion, to dismiss a Crown appeal. ... [24] Section 5D was enacted in its original form in 1924. Crown appeals under s 5D and like provisions in other States and Territories have long been regarded by this Court as exceptional. That exceptional character, reflected in the primary purpose of such appeals, informs the exercise of the Court's 'residual discretion' embedded in the words 'may in its discretion' in s 5D(1). That 'residual discretion' is a discretion to dismiss a Crown appeal notwithstanding that the sentence appealed against is shown to be erroneously lenient. Where an appeal is allowed, the powers to vary the sentence and to impose such sentence as seems proper are engaged. Those powers should be read with the general provisions of the Sentencing Act which constrain and inform their exercise. ... [43] Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual." 71Without in any way wishing to derogate from the significance of the respondent's other contentions, it is apparent that the exercise of this Court's residual discretion to decline to intervene in this case lies at the heart of his response to this appeal. The respondent proffered detailed submissions in this respect to the following effect. 72The residual discretion, where it is exercised, necessitates an immediate and highly subjective assessment of the circumstances of the case in hand: R v Holder and Johnston [1983] 3 NSWLR 245 at 256. In determining whether or not it should be exercised, it is open to the Court to look at material that has occurred up to the time of the hearing of the appeal: R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1 at [28]; R v Todorovic [2008] NSWCCA 49 at [32]. If this Court determines that error has been established in this case, it should nevertheless exercise its discretion not to intervene and re-sentence the respondent on the basis of the following factors. 73First, it is appropriate for the Court in the exercise of its residual discretion to dismiss the appeal where the guidance provided to sentencing judges will be limited and the decision will result in injustice: Green and Quinn at [2]. In the case of this respondent, the guidance provided to sentencing judges will be particularly limited and the decision will result in injustice when account is taken of the unique procedural history of the matter, including the fact that the admissions that led to the second set of charges were made with a view to the respondent's participation in the Cedar Cottage Program that has since been dismantled. It is of particular relevance to the exercise of the residual discretion that the charges that are the subject of this appeal were disclosed as a result of compliance with that Program. The offending had not been reported by the victim and would not have come to the attention of authorities but for the respondent's confession to the Cedar Cottage counsellor. 74Secondly, there was considerable delay by the Crown in lodging the appeal: R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 at [30]: R v JW at [92]. The respondent was sentenced on 4 April 2013. On 26 July 2013, the Attorney General served a notice of intention to appeal. Section 10(1) of the Criminal Appeal Act 1912, which provides that an appeal must be filed 28 days from the date of sentence, does not apply to Crown appeals. While there is no formal time limit to bring a Crown appeal, the delay in bringing it is a matter relevant to the Court's exercise of its discretion whether to intervene: Green and Quinn at [43]. 75Thirdly, the case is being conducted on appeal partly on a different basis to that pursued at first instance: see R v JW at [92]: "Accordingly, conduct by the Crown with respect to sentence hearings and Crown appeals may be taken into account in exercising the discretion as to whether to intervene at all. Such matters are not, in my opinion, limited to considerations of double jeopardy. The responsibility of the prosecutorial authorities for the fair, just and proper administration of the criminal justice system is such that many forms of inappropriate or unfair conduct can be taken into account in the exercise of the power and discretion vested in a Court." 76Fourthly, the respondent has made substantial progress toward rehabilitation: R v Tortell at [63]; R v SC [2008] NSWCCA 29 at [55]; and "the effect of re-sentencing on progress towards the respondent's rehabilitation" are factors that should be taken into account: Green and Quinn at [43]. This is a factor that looms large in this appeal and clearly emerges from the respondent's affidavit and the reports from the Cedar Cottage Program. Additionally, the Attorney General concedes that there is a degree of prejudice that arises from the fact that a non-custodial sentence was imposed at first instance: R v Y at [34]; R v Tortell at [63]. 77Fifthly, the forensic conduct of the Crown below must be considered: R v Allpass, R v JW at [92]. The Crown did not challenge the approach adopted by his Honour and in fact positively led the Court into error. The Attorney General concedes that it is relevant to the exercise of the residual discretion if the prosecution leads a court into error at first instance. 78At the proceedings on sentence on 31 January 2013, the Crown representative said this: "NORRIS: Your Honour I don't object to that course of action. It would be unfair, given that they are very serious charges, to perhaps look at them at law at this point in time. It would be against the spirit of the program and it was just that on 1 September 2011 [sic, 2012], the lapse of the regulation, he wasn't entitled to have those dealt with as part of the program which would've been the normal course. So it would be unfair to deal with him in any other way at this point I think your Honour." 79Further, at the sentencing proceedings on 4 April 2013, the Crown representative responded to comments from the bench as appears in the following exchange: "HIS HONOUR: And is the suggestion that up until September 2012 there was a regulation which provided that if a person made further disclosures that could, as it were, be taken into account as part and parcel of what had brought him before Cedar Cottage in the first place? NORRIS: Correct. ... HIS HONOUR: And people like that do not normally put their hand up and say yes I did it all, they often go to trial as my list will show here, 50% of pending trials in this place relate to allegations of a sexual assault and often with children and there is a rather large stigma so I have always considered that a plea of guilty in a sexual assault involving a plea of guilty to sexual abuse of a child is more likely to be demonstrative of genuine contrition than a plea of guilty in some other areas because it brings with it a rather large social stigma. All right well today you are asking me to allow him to continue in the Cedar Cottage program by giving him a s 9 bond conditioned that he comply with the Cedar Cottage program. DAY: Yes. HIS HONOUR: What is the Crown's attitude to that? NORRIS: Well it seems like a sensible course of action. I can't put before your Honour the penalty that normally would be invoked by these offences given that that's against the spirit of the program and it is not the accused's fault that in fact the regulation lapsed as much as the Crown would like to submit otherwise." 80Sixthly, s 68A of the Crimes (Appeal and Review) Act dealing with double jeopardy has not removed from consideration evidence of any actual anxiety or distress experienced by the respondent to a Crown appeal: DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [175], R v Rae [2013] NSWCCA 9 at [71]. In this context the affidavit of the respondent is relevant. 81Finally, in R v Hernando at [12], Heydon JA (as he then was), with whom Levine J and Carruthers AJ agreed, indicated that the Crown must surmount two hurdles if the Court is to impose a more severe sentence. The first is identification of an appellable error. The second is negativing any reason why the residual discretion of this Court not to interfere should be exercised. The Court in R v Smith [2007] NSWCCA 100 took the opposite approach in relation to onus. Hernando, however, has been considered, applied and cited with approval in a number of cases: see for example R v Tam Van Nguyen [2004] NSWCCA 155 at [39], R v Fadde Assaad [2009] NSWCCA 182 at [46]. The respondent contended that the Attorney General bears the onus of negativing any basis for the exercise of the residual discretion.

Ground 1A 82It seems apparent that his Honour's approach to the sentencing problem that confronted him was significantly born of a not unreasonable concern for the fact that the respondent was facing charges based upon a voluntary disclosure of conduct that might not otherwise have come to light. In simple terms, some unfairness arguably attended the disclosures. The respondent was never eligible for inclusion in the Program in respect of the second set of charges. He was not given any false or misleading assurances or promises and always faced the prospect of being charged. It is therefore not entirely clear whether at the time he confessed to his further criminal conduct he erroneously expected or believed that he was eligible for inclusion in the Program with respect to that conduct, or that he would not have revealed the earlier offences without such an expectation or belief. It is also not entirely clear whether or not the respondent apprehended that admissions made in the course of the Cedar Cottage counselling or assessment phase would not be made the subject of criminal charges. Having regard to his treatment with respect to the first set of charges, such an apprehension on his part seems unlikely. 83It is apparent that his Honour was attempting, to the extent possible, to ameliorate or eliminate the consequences of the perceived unfairness. The approach that he took was both fostered and encouraged by the Crown. The patent unavailability of his Honour's approach should have been drawn to his attention. His Honour's so-called error was directly referable to a failure by the Crown to address him accurately on the law as it then applied. 84As unfortunate as that combination of failings may have been, it nonetheless bespeaks error. We are unable to accept that the error was not material or merely technical. It underpinned and characterised the whole sentencing process. So much is apparent from his Honour's references to the fact that the offences would "otherwise" have attracted significant custodial terms. The assumption of, and reliance upon, factors otherwise permitting a departure from what the circumstances warranted, which his Honour described as "a lengthy sentence of imprisonment", was erroneous.

Ground 1B 85This ground is without merit. The correctness or validity of the respondent's referral or admission to the Cedar Cottage Program was not before his Honour for determination. The Crown's attempt to enliven possible or even established irregularities concerning his referral or admission to that Program in aid of the current appeal is precatory at best. 86As noted already, the appellant has accepted that any errors concerning the referral of the first set of charges to the Program were not the subject of this appeal and that this Court had no jurisdiction concerning them. We do not accept in such circumstances that even though the errors were not detected below, they therefore somehow infected his Honour's decision to grant the respondent good behaviour bonds facilitating his continuation in the Program. Nor in our opinion can it helpfully be said that the errors become relevant contextually in the exercise of the Court's residual discretion. This is so for the fundamental reason that there was no legal basis for the admission of the respondent to the Program on the second set of charges quite independently of whether or not the respondent's admission to the Program with respect to the first set of charges was also in doubt.

Grounds 1C and 2 87At the centre of any assessment of the adequacy or inadequacy of the sentences imposed by his Honour must be an understanding and appreciation of the details of the particular offences concerned. The offences charged, based upon what the respondent revealed to the police during his electronically recorded interview, were as follows: "Offence 1 - Aggravated Indecent Assault Between 1 May 2005 and 30 June 2005 whilst residing at Green Point, the victim got into her parent's bed whilst the accused was sleeping. The victim's mother was attending a Sunday morning church service. The accused woke to find the victim in his bed and began stroking her legs with his hands. The accused was lying on his back with the victim's head against his chest. The accused had his right arm around the victim. The accused began to stoke the victim's vagina with his fingers and stated 'I stroked her on her clitoris'. The accused did this for a few minutes before rolling her onto her back. Offence 2 - Aggravated Sexual Assault Whilst the victim was on her back the accused parted her legs and removed her underpants. The victim was wearing a nightie and the accused recalls that he was wearing a tracksuit, as it was cold. The accused was kneeling on the floor and was bent over the bed. The victim was lying on her back on the bed with her legs parted. The accused believed that the victim was pretending to be asleep as she was lying still with her eyes closed. The accused kissed the victim's vagina using his lips. The accused indicated that he then used his tongue to lick the victim's clitoris. The accused did this for some time before getting back into his bed. The accused stated that the victim rolled over and placed her head on his chest. The accused placed his arm around the victim and he returned to sleep. The accused did not say anything to the victim during this incident nor did she say anything to him. The victim was 11 years of age at this time. Offence 3 - Aggravated Sexual Assault During the electronically recorded interview with the accused he indicated that there were occasions where he 'orally abused' the victim during the year 2006 when she was 12 years of age. On one occasion in 2006 the victim was lying on a lounge in the downstairs lounge room of the family home at Green Point. The accused was kneeling on the ground next to her. The accused bent over the victim and kissed her vagina with his lips prior to licking her clitoris with his tongue. The accused stated he did this for approximately one or two minutes before stopping. Offence 4 - Aggravated Sexual Assault On a further occasion in 2006, the victim was lying in her parent's bed with the accused. The child was lying on her back. The accused told the victim to spread her legs and he kissed her vagina prior to licking her clitoris for approximately one to two minutes. After doing so the accused rolled the victim over so that she was laying face down on the bed. Offence 5 - Aggravated Sexual Assault On a further occasion during the year 2006 the victim was lying on her parent's bed with the accused. The victim was lying on her back on the bed. The accused climbed off the bed and knelt on the floor beside it. The accused spread the victim's legs apart and kissed her vagina prior to licking her clitoris whilst she was lying fully on the bed with her legs apart. The accused did this for approximately one to two minutes. The accused indicated that the victim had her eyes closed and was pretending to be asleep. The accused climbed back onto the bed." 88We have already indicated our opinion that these offences were objectively very serious. They were not isolated in number or time and extended over two years. The physical acts involved were also not confined to a single reoccurring act but were multifaceted. It also goes without saying that the familial relationship between the respondent and his daughter compounds the seriousness of all the offences as they involve the most basic breach of trust existing between a parent and a child. There is no issue that the offences also caused the victim substantial emotional harm, culminating in her complete disinclination to have any further contact with her parents and her understandable refusal to endorse or engage in the respondent's referral to the Cedar Cottage Program in the first place. 89Subject to consideration of whether or not the residual discretion not to intervene should be exercised in this case, we consider that the sentences imposed by his Honour were erroneously lenient and manifestly inadequate. No sentence other than a period of full-time imprisonment is appropriate. That is so in our opinion even after the subjective and procedural considerations are taken into account. These are considered and evaluated below.

The proper sentence 90In NT v Regina [2007] NSWCCA 143 at [38]-[39], Harrison J referred to authority dealing with sexual abuse by parents as follows: "[38]... this Court has on many occasions stressed the need to protect children from sexual abuse by adults and that this is especially so when the perpetrator is the victim's parent. In R v Dent (Court of Criminal Appeal, 14 March 1991, unreported) Lee J at [6], with whom Gleeson CJ and Loveday J agreed, stated: 'One begins with the proposition . . . that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature in providing for greater penalties when the victim is under sixteen . . . That acknowledgement has been in our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life, caused by such conduct. When a child is living in a family situation, he or she is particularly vulnerable to sexual molestation from the male parent, or stepparent. The community regards the family unit as one in which each parent is in a position of trust in respect of the child, under a duty to rear it and give it proper guidance and to refrain from using the child for sexual pleasure. The child is usually helpless to protect itself against sexual attack from the parent - as in this case - and that can be seen in so many other cases of a like kind that come before us. One sees in such cases that the child is too embarrassed, too afraid or develops too great a sense of guilt to complain. When the male parent takes advantage of the helplessness of the child, he not only commits a breach of trust, but it is a cowardly breach of trust. The protector of the child's body, the guide and mentor of the child, in those circumstances has abandoned his proper role in order to gratify his lust on the child'. [39] It is well established that the age of the victim is important in determining the criminality of the offending behaviour. Generally speaking, the younger the victim the more serious the criminality due to the helplessness of a young child in a family unit: R v BJW (2000) 112 A Crim R 1 at [21], a case involving a 13 year old child." 91These remarks remain relevant and pertinent in the context of the present case. 92More particularly, material tendered without objection in this appeal by the Crown for consideration in the event that this Court were minded to allow the appeal and to re-sentence the respondent, confirmed in stark and troublesome terms the profound and deleterious effect that child sexual abuse may have upon victims for many years, if not for the whole of their lives. That material consisted of reports from Dr Colette Hourigan dated 1 May 2013 and Dr Patricia Jungfer dated 9 May 2013. Part of Dr Jungfer's report is in the following terms: "9.3 [The respondent's daughter] reports as a consequence of the experiences in her childhood and the events subsequent to the disclosure of the sexual abuse, that her entire life has been disrupted. She reports that her academic performance, her right to a stable and secure home environment, her ability to socialise, engage in an intimate relationship have all been devastated by the ramifications of the sexual assault. She reported as a consequence of disclosing the sexual assault, a constant preoccupation with what occurred, although prior to the disclosure this was something that she constantly focussed on and tried to put out of her mind. She described developing a strategy of dissociating from her past and her experiences to be able to function in the community. She continues to work hard at repressing the events that occurred in an attempt not to have to deal with the emotional consequences of acknowledging these events. 9.4 [The respondent's daughter] reports recurrent intrusive thought about the sexual abuse that occurred to her. She dreams of the sexual abuse. She finds it difficult to concentrate and focus with the thoughts constantly intruding. Coupled with the thoughts of the abuse are feelings of guilt, self blame and considering that she is in some way at fault for the circumstances. She describes difficulties with concentration, memory, avoids wanting to have to deal with the issues in any way, shape or form. She actively avoids engaging in relationships with others for fear that she will be abused and that her trust will be broken. She finds it difficult to enjoy and experience pleasure in a sexual relationship. She has found it difficult to form friendship relationships because of her secret past. 9.5 [The respondent's daughter] as a consequence of the disclosure of the events, and as a consequence of the ramifications of this, became seriously depressed and has made a number of severe suicide attempts. She continues to have thoughts of self harm, remains depressed, has difficulties with regards to self esteem, decision making and self confidence. [Her] ability to engage in normal community activities has been profoundly affected by the events that occurred to her with the repeated sexual contact with her father. This repeated sexual contact has also resulted in a confusion regarding her identity. She is troubled by the events that occurred and distressed that the events occurred and she did nothing to stop them. She maintains a somewhat childlike approach to the events that occurred and blames herself for the activities, internalising the accusations that were directed by her parents." 93It is uncontroversial that the facts underpinning the second set of charges only came to light as the result of the respondent's admissions made during the assessment phase of the Program. However, the significant added element of leniency to which the respondent is therefore entitled must not lead to a sentence that is unreasonably disproportionate to the nature and circumstances of the offences. The respondent's entry into the Cedar Cottage Program was conditional upon full disclosure of all previous offending conduct, so to that extent the respondent's revelations were partly the result of illegitimate influences. While that must be a matter of significance, it should also be noted that the first set of charges arose from complaints by the victim that were unrelated to the respondent's admission or self-reporting of the criminal conduct involved. The respondent did not come forward before that occurred. To that extent the context in which the admissions were made consisted of a process that was only taking place as the result of a police investigation triggered by the victim's original report. The revelations by the respondent that led to the second set of charges did not therefore materialise in a neutral setting, but were clearly prompted by the looming prospect of imprisonment in relation to the first set of charges. There was a considerable element of self-interest in the respondent's admissions, which were not in those circumstances unambiguously altruistic or purely cathartic. The additional offences were not in that sense unconditionally volunteered. 94Part of the material upon which the respondent relied in this Court included an affidavit affirmed by him on 25 November 2013. It was read against the contingency that this Court might consider terms of imprisonment were warranted. The whole of the affidavit is relevant to that consideration. Portion of it is in these terms: "2. Between September and November 2012 I was assessed for participation in the Pre-Trial Diversion of Offenders Program run by Cedar Cottage. During the course of assessment I was told that treatment is based on making a full disclosure of all offences, not just those for which I had been charged. 3. I made a disclosure of additional offences to Cedar Cottage during assessment. I wanted to be completely honest and open to my wife and family in saying this is everything that happened. If I did not disclose everything, both my daughter and I would know I was participating in the Program on the basis of a lie by omission. 4. I do not want to spend any more of my life living with secrets and the fear of their being disclosed. 5. During assessment I came to understand the only way I could adequately demonstrate my remorse was to disclose the additional offences to the police. I had previously been told that established precedent was that these offences were normally included with those for which I was being assessed by Cedar Cottage. 6. After disclosing to Cedar Cottage I consulted my solicitor about going to the police. I voluntarily attended an interview with the police at Wyong police station and was subsequently charged with these additional offences. 7. I was advised by my solicitor that prior to the change in Regulations additional offences disclosed during assessment could be included with the original offences for referral to Cedar Cottage. 8. I was admitted to the Cedar Cottage Program in November 2012. I am very grateful to be given this opportunity to rehabilitate myself. I feel a tremendous obligation to my wife, my family and the many others who have faith in me to rehabilitate myself. I promised my family that I shall do everything in my power to complete the Program because I don't want to let them down. 9. Though I was relieved to be accepted into Cedar Cottage, the additional charges were a source of great anxiety when I commenced the Program. I experienced deep depression while waiting to be sentenced. I managed this with considerable help from my therapists at Cedar Cottage. 10. I was relieved that the sentences were such that I could continue to participate in the Cedar Cottage Program. I felt that I could now concentrate on my participation in the Program. I am very aware that failing to complete the Program or any breach of my good behaviour bonds will result in my imprisonment. I felt that my fate was now dependant on my behaviour, and my actions, attitude, diligence and effort in completing my treatment at Cedar Cottage." 95It is apparent that, with minor and presently irrelevant exceptions, the respondent adhered to the conditions of the Program and complied with its rules. He expressed both his desire to complete the Program and his opinion that it was of great benefit to him and, he hoped, ultimately to his family. The respondent has deposed to being extremely anxious about the outcome of these proceedings and to being terrified at the prospect of gaol. He has had suicidal thoughts from time to time. He also expressed remorse in his affidavit in the following terms: "58. I look back in astonishment, horror and shame at the sexual abuse I perpetrated on my daughter and the behaviour that I am capable of. There are no words that adequately express the remorse I feel for the pain, distress and ruin my actions have caused my daughter and family. There is no apology I can give that will make it up to them. Every day I regret my abusing my daughter. I wish I could somehow undo the harm I have done." 96These are all important matters to be taken into account in the sentencing equation. Indeed, the respondent's rehabilitative efforts are impressive and well documented. It is a troubling matter that the imposition of a custodial sentence carries with it the necessary, or at least highly likely, consequence that those rehabilitative endeavours would be severely truncated if not entirely destroyed. That is a concern that also commands incorporation in the sentencing process, including a finding of special circumstances. It leads necessarily to the result that the sentences that we are minded to impose are less than those that should have been imposed if the respondent had been sentenced by his Honour. 97There are also at least two other matters that are important in that context. They are first, the attitude and approach taken by the Crown in the proceedings on sentence before his Honour, and secondly, the question of delay. Whatever else may be said about the fact that his Honour received less than proper assistance from the bar table, the net effect of what occurred included vocal support from the Crown for a non-custodial sentence. It is not to the point that such support only arose because of the misunderstanding concerning the application and the applicability of the Act to the second set of charges. It had the significant consequence that the respondent was not then sentenced to a term of imprisonment, as in our view he should have been, and he has since then been subjected to a wholly unsatisfactory and undoubtedly distressing uncertainty concerning his fate. The effect upon him of that uncertainty has no doubt been considerably exacerbated by the fact that the announcement of what should happen to him has ultimately run an arguably unsatisfactory course over many months until the publication of these reasons. These are matters that should be taken into account in the overall assessment of what is a proper sentence in this case. They also combine to produce the result that the sentences that we consider to be appropriate now are less severe than sentences that might have been imposed if the respondent had been sentenced when he should have been. 98The respondent relevantly pleaded guilty at the first opportunity. He is entitled to a discount of 25 percent for the utilitarian value of that plea. 99In the circumstances of this case, paying due regard to the objective seriousness of the offending conduct, and the particular subjective factors attending the respondent, no penalty other than the imposition of a term of full-time imprisonment is appropriate. The nature of the offences under consideration commands the imposition of sentences that recognise and give effect to the requirements of punishment, denunciation and retribution, as well as specific and general deterrence. The importance and relevance of these factors are not in our view offset in this case by the respondent's particularly awkward current uncertain status or the subjective considerations outlined in his affidavit and elsewhere. 100We have already indicated that the s 61J offences each carry a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years and that the s 61M offence carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 5 years. 101We consider that the respondent should be sentenced as follows. For the s 61M(1) offence, the respondent should be sentenced to a term of 12 months, reduced to 9 months for the early guilty plea, with a non-parole period of 6 months. For each of the s 61J offences, the respondent should be sentenced to a term of 4 years, reduced to 3 years for the early guilty plea, with a non-parole period of 2 years. The sentences for offences 1 and 2 should be concurrent in as much as they concern the one incident and the s 61M offence does not materially add to the criminality inherent in the s 61J offence. There should however be some accumulation of the other sentences to reflect the fact that they each concern discrete incidents. We consider that the respondent should be sentenced to an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years.

Should this Court re-sentence? 102It will be apparent that we have taken the view that the answer to that question should be yes. The issue was discussed with counsel in the course of this appeal. No strong or principled opposition to the respondent being sentenced by this Court was raised by either side. Indeed, material was placed before this Court by both sides for consideration in the event that we were minded to re-sentence the respondent. Neither counsel indicated a desire to make additional submissions upon the issue or upon the proper sentence in the circumstances. Senior counsel for the respondent did not suggest or indicate that there was any further or other material upon which she would propose to rely in the event that the matter were remitted to the District Court for sentence. There is as well the added consideration of even further delay if that course were to be adopted. It will be apparent from what has already been said about delay that such an outcome would be entirely unsatisfactory.

The residual discretion to dismiss Crown appeals - conclusions 103In accordance with the s 68A of the Crimes (Sentencing Procedure) Act, any presumed distress or anxiety occasioned by the need to re-sentence the respondent must be disregarded. The same is not true of actual distress and anxiety to which a particular respondent to a Crown appeal may be subject. The distinction is made plain in the judgment of McClellan CJ at CL in De La Rosa at [174]-[175] as follows: "[174] At [14] in JW, the Chief Justice provided a summary of the propositions which emerged from his analysis of the situation following the enactment of s 68A. His Honour said: 'The following propositions emerge from the above analysis: (i) The words "double jeopardy" in s 68A refer to the circumstance that an offender is, subject to the identification of error on the part of the sentencing judge, liable to be sentenced twice. (ii) Section 68A removes from consideration on the part of the Court of Criminal Appeal the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject. (iii) Section 68A prevents the appellate court exercising its discretion not to intervene on the basis of such distress and anxiety. (iv) Section 68A also prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety. (v) Section 68A prevents the Court from having regard to the frequency of Crown appeals as a sentencing principle applicable to an individual case by taking either step referred to in (iii) or (iv), or otherwise.' [175] I have added my own emphasis to make plain my understanding of his Honour's reasoning. In short, s 68A has removed from consideration the element of anxiety and distress to which all respondents to a Crown appeal are presumed to be subject. However, it has not removed from consideration any actual anxiety or distress occasioned by the fact that the respondent may be re-sentenced. Notwithstanding s 68A, being a subjective consideration of that particular offender, it must be considered. The appropriate sentence must be informed by all of the relevant objective and subjective circumstances. It may be that, in the circumstances of a particular respondent, including his or her actual anxiety or distress, the appeal court should exercise its discretion and decline to intervene (at [95], [146]) or impose a lesser sentence." 104The respondent's affidavit sets out in detail the matters that he has drawn to this Court's attention in terms of the anxiety and distress to which he has been subject since he was notified of the Attorney General's proposal to prosecute this appeal. The affidavit was read without objection or cross-examination. We accept that the respondent's description of how this appeal has affected him is both truthful and reasonable. 105The respondent did not become the subject of the present appeal until three and a half months after the imposition of his original sentences. Unlike many cases in this area, the respondent does not face a return to prison following his release upon completion of the original sentence. The prejudice faced by a respondent to a Crown appeal in such cases would be considerable. However, in our opinion, the prejudice faced by an offender anticipating a return to prison on the one hand and that confronting the respondent, being the prospect of imprisonment for the first time on the other hand, cannot legitimately be distinguished. Each is likely to be significant in its own way and the source of considerable prejudice, albeit in slightly different terms. 106The prejudice to the respondent arising in this way has also to be assessed in light of the fact that the Crown representative at the sentencing proceedings was largely, if not predominantly, responsible for the way in which his Honour dealt with the respondent in the first instance. It is probable that his Honour would not have placed the respondent on bonds if it had been apparent to him that the respondent was not eligible for consideration as a candidate for admission to the Program. But for that error, the respondent would, and should, have been sentenced to terms of imprisonment. We do not understand the respondent in this case to suggest otherwise. If it is suggested, we are unable to accept it. 107However, we do not consider that the conduct of the Crown representative in the proceedings before his Honour could be characterised as either inappropriate or unfair. The undiluted responsibility of the prosecutorial authorities for the fair, just and proper administration of the criminal justice system produced a result at first instance that the respondent quite obviously sought to embrace. The Crown's errors were not the subject of complaint by the respondent's representative at the time. His latter day dissatisfaction with what occurred is as much the result of his representative's arguably opportunistic, if understandable, failure to correct the error as it is the result of the error itself. 108The Cedar Cottage Program has now been dismantled. To that extent at least the determination of this Court has a more limited effect than it otherwise might. For example, this Court's decision will be of no utility in guiding courts or practitioners with respect to the operation of the Pre-Trial Diversion of Offenders Act. The significant aspect of this case, that the respondent disclosed the offences in the course of complying with requirements for entry in that Program, is unlikely ever to arise again. 109We are not satisfied that the respondent's apparent progress within the Program so far, and his accepted rehabilitative achievements, are sufficient to outweigh the patent seriousness of his offending and the corresponding propriety of imposing a sentence upon him that reflects it. 110We are ultimately not satisfied that there is any basis upon which, or reason why, this Court should exercise its residual discretion not to intervene. We take the law to be that "the onus lies upon the respondent to establish that that discretion ought to be exercised in his or her favour", as indicated by Simpson J in R v Smith at [60]. The respondent in this case has identified and analysed an impressive collection of factors pertinently informing the exercise of that discretion. The identified matters do not satisfy us, however, that his Honour's sentencing discretion did not wholly miscarry in a way that mandates correction in this Court. It is correspondingly wholly inappropriate in this case to exercise the available discretion not to intervene.

Conclusions 111In the circumstances the Court makes the following orders: 1. Allow the appeal. 2. Quash the sentences imposed upon the respondent by Ellis DCJ on 4 April 2013. 3. In lieu of the sentences imposed upon the respondent by Ellis DCJ, sentence the respondent to an aggregate sentence of 5 years and 6 months commencing on 19 March 2014 and expiring on 18 September 2019 with a non-parole period of 3 years expiring on 18 March 2017. 4. The first date upon which the respondent will become eligible for release on parole is 19 March 2017.

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