R v Eisenach [2011] ACTCA 2

Court of Appeal (ACT)|2011-02-17|Before: Gray P, Ryan JJ

[2011] ACTCA 2 (17 February 2011)

APPEAL - Crown appeal against sentence - whether sentence manifestly inadequate - principles governing Crown appeals against sentence - sentence was not within range when compared to similar cases - appeal allowed - sentence set aside - sentence of eight years imprisonment imposed with a non-parole period of four years six months.

Crimes Act 1900 (ACT), , (2)

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Campbell [2010] ACTCA 20

R v King [2008] ACTCA 12

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

R v Pinder (1992) 8 WAR 19

R v Slack [2004] NSWCCA 128

R v Jammeh [2004] NSWCCA 327

SDS v The Queen [2009] NSWCCA 159

R v WWS [2009] VSCA 125

The Queen v Partridge [1998] FCA 596

R v Dent (NSWCCA, No 60496 of 1990, 14 March 1991, unreported) (BC 9102664)

GF v The Queen [2005] ACTCA 46

R v Campbell [2010] ACTCA 20

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The sentences imposed on the respondent, Benjamin John Eisenach, on 7 May 2009 be set aside.

2. In lieu thereof he be sentenced to a total of eight years imprisonment to commence on 1 May 2009 with a non-parole period of four years six months also to commence on 1 May 2009 and end on 30 October 2013 comprised as follows:

(a) On the charge of sexual intercourse with CN between 1 September 2007 and 29 October 2009, which is the third count on the indictment, there be a sentence of imprisonment for two years (the first sentence) to commence on 1 May 2009.

(b) On the charge of sexual intercourse with CN between 1 April 2008 and 30 April 2008, which is the fourth count on the indictment, there be a sentence of imprisonment for two years to commence after 12 months of the first sentence (the second sentence).

(c) On the charge of sexual intercourse with NS between 30 October 2007 and 2 November 2007, which is count 5 on the indictment, there be a sentence of two years imprisonment consecutive upon the second sentence (the third sentence).

(d) On the charge of sexual intercourse with NS on 17 June 2008, which is count 6 on the indictment, there be a sentence of two years imprisonment to commence 12 months after the third sentence (the fourth sentence).

(e) On the charge of act of indecency in the presence of CN on 17 June 2008, which is the second count on the indictment, there be a sentence of six months imprisonment consecutive upon the fourth sentence (the fifth sentence).

(f) On the charge of using a carriage service to transmit a communication containing indecent material to a person under 16 years of age with the intention to procure CN to engage in sexual activity (the grooming charge) between 21 June 2008 and 6 September 2008, there be a sentence of 18 months imprisonment consecutive upon the fifth sentence (the sixth sentence).

(g) There be a non-parole period of four years six months also to commence on 1 May 2009 and that period is to end on 30 October 2013.

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. From at least 2007, the respondent to this appeal, Benjamin James Eisenach, was the full-time carer for the mother of a 14 year old girl, CN. When CN's mother died in 2008, she named Mr Eisenach as the testamentary guardian of her two children, that is CN and her sister.

2. Later, CN's cousin became the carer of CN and her sister and reported to the authorities conversations between CN and Mr Eisenach, later identified as Mr Eisenach "grooming" CN. A police investigation ensued.

3. When interviewed by police, CN also recounted incidents between 1 September 2007 and 17 June 2008 when Mr Eisenach had sexual intercourse with her and also with another complainant, NS. Both CN and NS were aged 14 in 2007.

4. As a result of the police investigation, Mr Eisenach was arrested and charged with various offences. On 1 May 2009, he was arraigned on an indictment which charged four counts of engaging in sexual intercourse with a person under the age of 16, one count of committing an act of indecency in the presence of a person under the age of 16 and one count of using a carriage service to groom a person under 16 years of age.

5. After a plea of guilty, Mr Eisenach was sentenced to a total term of imprisonment of four years and six months with a non-parole period of two years and six months, the sentence commenced on 1 May 2009.

6. The Director of Public Prosecutions has appealed against that sentence.

7. Crown appeals against sentence are subject to particular principles set out in a number of cases.

8. In R v Clarke [1996] VICSC 30; [1996] 2 VR 520 (at 522), Charles JA helpfully summarised the principles in the following way:

This is an appeal by the Director of Public Prosecutions. The principles which apply to Crown appeals are well established: Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 per Barwick CJ at 310; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 per Deane and McHugh JJ at 234; Everett v R [1994] HCA 49; (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 299. These principles were recently stated in summary form in the judgment of the Court of Criminal Appeal of New South Wales in R v Allpass (1993) 72 A Crim R 561 at 562-3. See also R v Osenkowski (1982) 30 SASR 212 at 212-13 per King CJ.

The relevant rules may be stated in the following propositions:

1. An appeal by the Crown should be brought only in "the rare and exceptional case" (Everett at 299) to establish some point of principle. The reason is that such appeals "represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy" (Malvaso at 234).

2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to law down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).

3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass at 562-3).

Allpass is also authority for the following propositions:

4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.

9. See also House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 504-505); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 (at 671-672); R v Campbell [2010] ACTCA 20 (at [12]).

10. That statement of the principles has been expressly approved by this Court: R v King [2008] ACTCA 12 (at [21]).

11. It is in accordance with these principles that this appeal is to be decided.

12. The mother of CN suffered from osteoarthritis and, by 2007, Mr Eisenach had become her full-time carer and regularly stayed at her house. She had two children CN (born in February 1993) and her older sister.

13. Unfortunately and unexpectedly, CN's mother died on 15 June 2008. In her will she named Mr Eisenach as the testamentary guardian of her two children, despite her mother living in the same suburb in Canberra.

14. The grandmother of CN became concerned about how Mr Eisenach was relating to CN. She and the sister of CN's mother met with officers of the Office for Children, Youth and Family Services (the Office) of the Department of Disability, Housing and Community Services and those officers then caused the two children to be placed in the care of their cousin, and her husband, who lived in Melbourne.

15. The cousin contacted the Office in July 2008 about communications that Mr Eisenach was having with CN by online computer and mobile telephone text messages. The Australian Federal Police immediately commenced an investigation.

16. When CN was interviewed, she told the police that when Mr Eisenach stayed overnight at her mother's house, he would sleep in the lounge room. She also said that once every three weeks she would stay the weekend with Mr Eisenach in his flat. When she stayed with Mr Eisenach she would share his bed.

17. CN told the police that between 1 September and 29 October 2007 at her mother's home, she had been sleeping on a mattress with Mr Eisenach when she awoke to find him touching her on her neck, breasts and vagina. He encouraged her "to try new things" and he then inserted his fingers into her vagina and lay on top of her and had penile-vaginal intercourse with her. He was not wearing a condom at the time.

18. She also told police that when she was staying at Mr Eisenach's flat between 1 and 30 April 2008, she was sharing his bed and again he put his fingers in her vagina and later had penile-vaginal intercourse with her. Again, he did not wear a condom.

19. She told police that on 17 June 2008, Mr Eisenach was staying at her mother's home, as was a female friend, NS. NS was some four months younger than CN. At that time, CN had her period and did not engage in any sexual activity. Mr Eisenach, however, inserted his fingers in NS's vagina and then his penis and commenced sexual intercourse with her in the presence of CN. She said NS also masturbated Mr Eisenach.

20. The other complainant, NS, also spoke to police, telling them that between 30 October and 2 November 2007 she had been at the home of CN's mother when CN was away. She and Mr Eisenach were in the lounge and she was a little drunk. Mr Eisenach came over to her and began to rub her breasts through her clothing. He then touched her vagina under her clothing and commenced rubbing her clitoris. He pulled his jeans to his ankles and tried to put his erect penis in her vagina but could not, so he continued to masturbate her until he had penile-vaginal intercourse.

21. NS also told police that after CN's mother died, she spent a night with CN at her house. She and CN went to bed together with Mr Eisenach and he commenced to kiss NS and rub her breasts underneath her shirt. He later had penile-vaginal intercourse with her. He was not wearing a condom but NS was unsure whether he ejaculated. This was the incident referred to by CN at [19] above.

22. During the police investigation, officers examined Mr Eisenach's mobile phone, computers and material collected from a program installed by the husband of CN's Melbourne cousin.

23. Mr Eisenach's mobile phone showed pictures of CN in states of undress including pictures of her exposed breast. The material examined by them disclosed communications in which Mr Eisenach expresses a wish to have sexual intercourse with CN and expressions of affection of a sexual or pro-sexual kind.

24. The indictment to which Mr Eisenach pleaded guilty contained six counts.

25. The first count of using a carriage service to groom CN, that is "to transmit a communication to another person who was under 16 years of age and that communication contained material that was indecent and it was sent with the intention of making it easier to procure the recipient to engage in, or submit to, sexual activity" with Mr Eisenach is prohibited by s 474.27(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of 12 years imprisonment.

26. The second count, involving CN being present while sexual activity occurred between NS and Mr Eisenach on 17 June 2008, was a count alleging Mr Eisenach committed an act of indecency in the presence of a person under the age of 16 years, an offence contrary to s 61(2) of the Crimes Act 1900 (ACT) (Crimes Act) rendering him liable to a maximum penalty of 10 years imprisonment.

27. The third to sixth counts alleged that Mr Eisenach engaged in sexual intercourse with a person under the age of 16 years. Two of these counts involved CN, between 1 September and 29 October 2007 and between 1 and 30 April 2008, and two involved NS, between 30 October and 2 November 2007 and between 16 and 17 June 2008. These offences contrary to s 55(2) of the Crimes Act attract a maximum penalty of imprisonment for 14 years.

28. Mr Eisenach appeared in the Magistrates Court first on 12 September 2008 and was charged with the grooming offence. He was granted bail and the proceedings were adjourned to 3 October 2008. The further charges were then preferred. He pleaded not guilty to the charges and bail was continued.

29. On 30 January 2009 he entered pleas of guilty to all charges and was committed for sentence to the Supreme Court.

30. The hearing of the sentencing proceedings in the Supreme Court commenced on 1 May 2009 where Mr Eisenach was arraigned and pleaded guilty to all charges. After an agreed statement of facts was read and tendered, a pre-sentence report was tendered. The author was not asked any questions. A Victim Impact Statement by CN was read and tendered.

31. Mr Eisenach read out a statement to the Court and a report of a psychologist, Dr Katie Seidler, was tendered. Bail was then revoked and the proceedings adjourned to 7 May 2009.

32. On 7 May 2009, after hearing submissions, Higgins CJ imposed the following sentences:

1. On count 3 on the indictment, his Honour sentenced Mr Eisenach to 12 months imprisonment.

2. On count 5 on the indictment, his Honour sentenced Mr Eisenach to 12 months imprisonment to be cumulative as to six months on the first sentence. (His Honour at one stage referred to this count as "count 2" but it is plain that he was referring to count 5 which charged an act of sexual intercourse, not an act of indecency as charged in count 2.)

3. On count 4 on the indictment, his Honour sentenced Mr Eisenach to 12 months imprisonment to be cumulative as to six months on the sentences already pronounced.

4. On count 2 on the indictment, his Honour sentenced Mr Eisenach to six months imprisonment cumulative on the earlier sentences.

5. On count 6 on the indictment, his Honour sentenced Mr Eisenach to 12 months imprisonment cumulative on the earlier sentences.

6. On count 1 of the indictment, his Honour sentenced Mr Eisenach to 12 months imprisonment cumulative on the earlier sentences.

7. These periods of imprisonment totalled four years and six months imprisonment. Had Mr Eisenach not pleaded guilty, his Honour would have sentenced him to five years and six months imprisonment.

8. His Honour then set a non-parole period of two years and six months imprisonment.

33. His Honour's reasons for sentence were quite brief. He accurately described the facts as "pretty horrific and ... [an] abhorrent series of events". He noted that they were "made the worst [sic] ... by the fact that Mr Eisenach was, in a de facto sense at least, in loco parentis".

34. As to NS, his Honour noted that she, too, "was in effect under the protection of the household when these events took place".

35. His Honour noted that both counsel accepted that an immediate full-time term of imprisonment was inevitable and that it had to be "substantial". "Any leniency," his Honour said, "can only be reflected in the non-parole period".

36. His Honour also noted that neither the pre-sentence report nor the report of the psychologist "offer any indication that Mr Eisenach was doing anything other than making a reasoned and corrupt decision" to commit the offences.

37. The only matters in Mr Eisenach's favour, according to his Honour, were the fact that there was no violent activity and his plea of guilty which "spared the victims of his offences the ordeal of giving evidence against him".

38. The Director of Public Prosecutions lodged a notice of appeal on 22 May 2009. It set out seven grounds of appeal as follows:

b) The sentences imposed on each count were too low;

c) His Honour failed to have proper regard to the principle of totality;

d) His Honour erred in providing a discount for the plea of guilty that resulted in a lesser penalty that was unreasonably disproportionate to the nature and circumstances of the offence;

e) That his Honour erred in failing to give sufficient weight to deterrence and punishment in relation to the Respondent;

f) That his Honour erred in failing to give sufficient weight to the objective seriousness of the crime;

g) That his Honour failed to give sufficient weight to the harm done to the victims of the crime;

39. In the way that the appeal was argued by the Director of Public Prosecutions, it became clear that grounds (b) to (g) are aspects of the sentencing process that the Director wished to touch upon in support of the ground of manifest inadequacy set out in ground (a).

40. While separate comments were made in the Director's written submissions on the matters referred to in grounds (d) and (g), they were not, in the way the appeal was argued, submitted to have resulted in a specific error, but rather in a manifestly inadequate sentence. The Director's written and oral submissions did not address the other grounds separately from ground (a).

The approach of the appeal court to the grounds of appeal

41. Sentencing courts are not permitted to "add and subtract item by item from some apparently subliminally derived figure" when sentencing (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (Markarian v The Queen) (at 375)) but are required to identify "all the factors that are relevant to the sentence, [discuss] their significance and then [make] a value judgment as to what is the appropriate sentence given all the factors of the case" (Markarian v The Queen (at 378)).

42. Where the ground of an appeal against sentence is manifest excess (or inadequacy), by necessary implication no specific error is being identified. As Gleeson CJ and Hayne J said in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (Dinsdale v The Queen) (at 325-326):

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.

43. To multiply the grounds, which can be no more than speculative suggestions as to areas where the sentencer may have failed to take a factor into account in the proper way, is generally a fruitless exercise in such an appeal and hardly helpful to the appellate court, save perhaps to particularise the areas where the appellant will address argument. They may, of course, be in the nature of particulars of factors on which the appellant wishes to place emphasis in the appeal, but they are no more than that.

44. In order to succeed in the appeal, then, the appellant must make good, in the way identified in Dinsdale v The Queen that the sentence was manifestly inadequate.

45. Although his schooling was somewhat disrupted by family moves, Mr Eisenach had a supportive and otherwise unremarkable upbringing. Since leaving school he has mostly been employed, principally in the construction industry and for the longest period as a roof tiler.

46. He left home at 16 and maintained contact with his family after that, although he stopped contact with them after being charged. His mother died shortly before he was charged and he was unable to attend her funeral because of his bail conditions.

47. He has had two significant relationships. The first, which began when he was 21, resulted in the birth of a daughter. He has not had contact with her for about five years. He had a further relationship which lasted about four years and two children were born of that relationship. Conflict with their mother has meant he has had no contact with them since the relationship terminated about six years ago.

48. He has had a number of other transient relationships. He admitted to having accessed pornographic material, but there was no evidence this was inappropriate or compulsive. There was no suggestion any of it was child pornography or violent material.

49. He has no particular drug or alcohol problems and is in good physical health though with a possibility of early signs of emphysema through heavy smoking. He told the author of the pre-sentence report that he suffers, and has suffered since before being charged, from depression but had not sought treatment for it or the symptoms of loss of motivation, tearfulness and difficulties with sleeping.

51. He told the author of the pre-sentence report that he was "surprised" by the offences and that he did not encourage the victims "not that I can tell". He suggested, "I don't think I took advantage of them" as both the victims "weren't children ... far from it mentally".

52. He reported regretting his behaviour but was assessed by the author of the pre-sentence report as expressing little remorse for his behaviour. He was further assessed as seeking to minimise his culpability, suggesting that current lax mores and the victims have contributed more significantly to the offences.

53. The author of the pre-sentence report thought it was difficult to predict his risk of re-offending but suggested that "Mr Eisenach maintains a level of risk that if unaddressed, will continue to express itself in problematic or possible criminal behaviour" .

54. In his statement to the Court, however, he did express regret, saying, "how sorry I am to the victims, and to the court" .

55. Much of his statement read to the Court, however, was directed to explaining why he had kept CN away from her family and barely addressed the offences, his motivation for committing them or the effect they had on the victims. Other than encompassed in the term "victims", he made only passing reference to NS. He did say, however:

...after speaking with Dr Katie Seidler I now understand what I have [sic] and I just want to say that it is not your fault and that you have nothing to be ashamed of. I do feel terrible about it all to the point that it depresses me everyday. I wish that you both [CN and NS] have wonderful and successful lives.

56. He expressed a wish to continue treatment with Dr Seidler.

57. Dr Seidler's report was prepared after three sessions with Mr Eisenach over a total of five hours and included psychometric testing. Dr Seidler has had "particular experience specialising in sexual and violent offenders" .

58. Dr Seidler set out in her report an extensive family history and details of Mr Eisenach's life and relationships. Dr Seidler, however, did comment:

Mr Eisenach demonstrated a disturbed understanding of consent and sexual boundaries and he endorsed attitudes consistent with child sexual abuse. Specifically, Mr Eisenach commented that the age of consent should be lowered and that the criteria for consent should be based on the child's maturity, as perceived by the other sexual partner.

... Mr Eisenach also spoke about how young teenage children are sexually active and, therefore, sex with this age group is generally appropriate and perhaps the Law should recognise this.

59. She also reported that he tended to "blame the victims for the offences, suggesting they 'constantly' came onto him and 'bombarded' him with their sexual interest". He acknowledged, however, that his behaviour was "inappropriate" but could not account for it, other than referring to "male instinct".

60. Dr Seidler reported on the psychometric testing which led her to the following view:

In sum, psychometric testing with Mr Eisenach indicates that he is a man of sound intelligence, who experiences a range of difficulties with respect to his interpersonal relationships. Specifically, he is overly dependent on others emotionally, however, Mr Eisenach also appears to be somewhat avoidant of close interpersonal connections, perhaps fearing that he is going be hurt by others. This will obviously cause him difficulties in relating to others. Moreover, psychologically speaking, Mr Eisenach appears to be a quite disturbed and dysfunctional individual at present. He is experiencing symptoms of Major Depression, in addition to which, his experience of anxiety is clinically significant. This, in part, is likely to be a function of present legal concerns, however, given his personality profile, Mr Eisenach has probably experienced mood concerns over many years, such that he is prone to being negative, pessimistic and melancholic.

Mr Eisenach gave a superficial and distorted account of his offending behaviour and he could not account for his motivations in the same. However, I note that he encountered several significant life events in the period leading up to his offending, which, no doubt, served to distress and upset him, as well as potentially destabilising him emotionally and precipitating symptoms of depressed mood. These contextual factors, coupled with Mr Eisenach's problematic and distorted beliefs about sex and consent, are suggested to have facilitated his offending behaviour.

62. She gave a detailed risk assessment and concluded:

In summary, taking into account both static and dynamic risk factors, Mr Eisenach would be considered to pose a moderate risk of re-offence.

63. She further recommended an ongoing program of "offence-focussed treatment whereby his problematic attitudes may be challenged". She noted that such treatment was available both within and outside the correctional system. She also felt that he would find "the experience of custody highly confronting".

64. A Victim Impact Statement made by CN was tendered and read to the Court under s 52 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Under s 53 of that Act, the Court is obliged to consider the statement. It helps the Court to understand the effect of the offence on the victim which s 33(1)(f) of the Sentencing Act requires be taken into account.

65. No such statement was made by NS, though s 53 of the Sentencing Act prohibits the Court from drawing any inference about harm suffered by a victim from the fact that such a statement is not given to the Court. Indeed, it is clear that without specific evidence, a sentencing court will be aware of the destructive effects of offences such as these: R v Pinder (1992) 8 WAR 19 (at 40); R v Allpass (1993) 72 A Crim R 561 (at 565). If, however, particular harm is to be alleged or relied upon as a circumstance of aggravation, it must be proved in the usual way to the requisite standard of beyond reasonable doubt: R v Slack [2004] NSWCCA 128 (at [58]).

66. The Victim Impact Statement of CN recounted the contact that she had with Mr Eisenach and the events following her mother's death. She explained how the offences had led to her not going to school. She said she had had sex with him because she "was scared of what he would do if [she] didn't".

67. CN described how she became lonely when she moved to her cousin's home in Melbourne and she gained some comfort from Mr Eisenach's contact but "just listened to [him] and did whatever he wanted".

68. She said she had now begun to rebuild her life, making friends at school and working at a job where "the people there are lots of fun". She said she still finds it hard to trust males and she is having difficulty in accepting that "what has happened is not all my fault and I am not a dirty person".

69. Mr White, the Director of Public Prosecutions, submitted that the sentence was manifestly inadequate. He submitted that important factors in sentencing for sexual offences, especially involving child victims, were specific deterrence, general deterrence, punishment and protection of the community.

70. He noted that, in this case, there was a breach of trust, which the courts have always treated as rendering crimes grave and serious.

71. While accepting that his Honour described the offences accurately as "an abhorrent series of events" committed "in loco parentis", and that the sentence "should be both substantial and be a prison sentence immediately served", the sentence imposed, he submitted, did not show that these matters had properly been taken into account.

72. Mr White submitted that the Court needed to have regard to the maximum penalties and referred to the well-known comment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen (at 372) where their Honours said:

... careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

73. The maximum penalties for the offences are set out above (at [25]-[27]).

74. He noted that the offences were committed with factors of aggravation, including:

• The fact that the respondent knew the victim of the grooming charges

75. He noted, too, that the only real mitigating factor was the plea of guilty. While that entitled Mr Eisenach to leniency, he seemed to be submitting that the reduction of about 18% for this factor was too generous in the circumstances. That submission resolved itself into a contention that the starting point, before the reduction for the plea of guilty, was too low and that any reduction for the plea of guilty would lead to a manifestly inadequate sentence. It certainly does not follow that in this case, the reduction allowed by the sentencing judge could be said to be necessarily inadequate. It was a plea of guilty at a relatively early stage of the proceedings and facilitated the course of justice.

76. It was put that the non-parole period was also inadequate. It was, as Mr White noted, a reduction of 45% from the head sentence; a very generous non-parole period when no particular factors had been identified which justified that reduction. There were, however, factors such as the fact that Mr Eisenach had no previous convictions and comments made by a psychologist concerning Mr Eisenach's suitability for psychological treatment that the sentencing judge was entitled to take into account. There is no obvious error in the sentencing judge's assessment of the appropriate non-parole period as a proportion of the head sentence.

77. Mr White further submitted that his Honour had not complied with the principle of totality. In fact, his submission in that regard was no more than saying that the sentence needs to be appropriate for the offence for which it is imposed. His submission was really another aspect of what was said to be the manifest inadequacy of the total sentence. He submitted that the individual sentences were inadequate and that in the structure of the sentence "the actual time attributed to each offence is inadequate".

78. Mr White also sought to address the severe emotional and psychological consequences that offences of this nature have upon victims. This is, of course, part of the assessment that the Court makes of the objective gravity of the offence: R v Jammeh [2004] NSWCCA 327 (at [23]). Thus, again, this submission is really directed to what was said to be the inadequacy of the punishment for the offences.

79. A helpful table of sentences was attached as "Appendix A" to the appellant's submissions. Care must be taken with such suggested comparisons, for each sentence involves consideration of various factors which can differ from case to case. They are useful to help the court identify what Hunt CJ called in R v Ellis (1993) 68 A Crim R 449 (at 460) "the collective wisdom of other sentencing judges" to which the court is required to give full weight both by common law and by statute through s 33(1)(z) of the Sentencing Act.

80. In relation to the offence of grooming, the cases in Appendix A certainly show that a sentence of not less than 18 months imprisonment could be expected to be imposed in the circumstances that were before the Court on this occasion. In relation to the offence of engaging in sexual intercourse with a child under the age of 16 years, the cases in Appendix A show a range of sentences for this offence from three years and eight months up to 11 years and six months, although the latter was the total for multiple offences. A number of the decisions in both categories were of ACT courts. It does not appear that the sentencing judge had the benefit of this material.

81. Mr Livingston, who appeared for Mr Eisenach, submitted that the sentences were not manifestly inadequate. In particular, he submitted that they did not fall outside the range of sentences proper for such offences. He emphasised that his Honour had accurately described the offences. He also noted that Mr Eisenach had no criminal record of any kind.

82. The points that Mr Livingston made concerning the discount for the plea of guilty, non-parole period and the principle of totality have been addressed in the comments on the Director's submissions.

83. His principal submission has to be that the comparative cases showed that the sentences were not inadequate. He referred to SDS v The Queen [2009] NSWCCA 159 (SDS v The Queen) where the court in that case had referred to comparable sentences. In his submission, the sentences here imposed were not outside the range suggested in that case. He also referred to R v WWS [2009] VSCA 125 (R v WWS) and The Queen v Partridge [1998] FCA 596 (The Queen v Partridge).

84. As to the grooming charge, Mr Livingston made the point that it is ordinarily directed to the communication with the victim as a precursor to sexual abuse where here a sexual relationship has already been established, thus moderating what may otherwise have been seen as the culpability of the offence. He referred specifically to what CN had said in her Victim Impact Statement about being unhappy in Melbourne and the comfort Mr Eisenach appears to have provided her at that time.

85. There is no doubt that the offences committed by Mr Eisenach and to which he pleaded guilty were serious breaches of the criminal law and his Honour rightly described them as abhorrent.

86. In R v Dent (NSWCCA, No 60496 of 1990, 14 March 1991, unreported) (BC 9102664), Lee CJ at CL (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 the family situation he or she is particularly vulnerable to sexual molestation from the male parent, or step-parent. 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.

87. While formally Mr Eisenach was not in such a relationship with CN, it certainly was "in a de facto sense at least in loco parentis ...", as his Honour expressed it.

88. In order to respond to these offences, the courts are required, having steadily in mind the maximum penalties provided, to use their sentencing powers and the purposes for which they have been given, to protect the children in the community. This involves action directed at the offender, to punish, deter and provide opportunities for and encouragement of rehabilitation as well as action directed to the community more broadly with denunciation of the conduct, deterrence of others who may be likely to engage in it and vindication of the victim.

89. In GF v The Queen [2005] ACTCA 46, this Court endorsed the following comments of Doyle CJ (with whom Prior and Nyland JJ agreed) in R v AJW (2001) 80 SASR 246 (at [20]):

... the sexual abuse of children by persons in a position of trust appears to be quite widespread. Persons charged with such offences appear before the courts quite regularly. The serious consequences that such offending has on the children involved, and the insidious effects on the social relationship between those responsible for children and people who deal with their children, are a reason for the courts to treat such offending very firmly. The courts must do what they can to show to parents, and those with parental responsibilities, that when their trust in others is abused, resulting in the sexual abuse of their children, the courts will do everything that they can to impose adequate punishment on the offenders.

90. The approach that a court takes to assessing an appeal against the claimed manifest inadequacy of a sentence has been set out in R v Campbell [2010] ACTCA 20 (at [32]-[35]).

91. The circumstances of the offences of sexual intercourse with a child under the age of 16 years show the following.

92. While serious offences in themselves, they generally impair the opportunity for the victims to develop into mature adults addressing their sexuality in a timely and appropriate way.

93. In this case, there was, also, a significant breach of trust. CN's mother was dependent on Mr Eisenach, as her carer, and it is completely understandable that CN would be fearful of refusing his advances. He was, effectively, in loco parentis so far as she was concerned.

94. The fact that there were two victims, both children, is highly relevant as is the fact that Mr Eisenach had penile/vaginal intercourse without using a condom. The former increases the seriousness of the offender's culpability because it shows that he has a propensity to have sexual relations with more than one young victim and has not been guilty of only a single such relationship. The latter is an aggravating factor of the individual offences.

95. The offences were repeated, in respect of both victims, also aggravating their culpability.

96. While the appellant suggested that there was planning involved, it does not seem on the agreed facts that there was much planning, though the offences were deliberate and nothing like an out-of-character or one-off lapse of judgment. Indeed, in the discussions with both the author of the pre-sentence report and Dr Seidler, Mr Eisenach showed little insight into the criminality of the offences, apparently viewing them in some sense as acceptable.

97. The case of SDS v The Queen does not give any support for the contention of Mr Livingston that these sentences were within an appropriate range. The actual sentence imposed on the applicant in that case in respect of four charges of sexual intercourse with a child between 10 and 16 years and carrying a maximum term of 10 years imprisonment was a minimum term of three years. The effective total term was six years imprisonment and a non-parole period of four years. In that case, there was only one victim.

98. Of the comparable sentences referred to in that judgment, only one approached the level of the present sentences, a sentence imposed for two acts, apparently on the one occasion, one of digital penetration and one of fellatio, which attracted a sentence of two years imprisonment with a non-parole period of one year. It is, however, notable that in that case there was "a mental disorder which impacted upon the appropriate sentence". All of the comparable cases related to sentences imposed after pleas of guilty. The other sentences in the comparable cases ranged from two years and eight months up to six years. Some were for one offence, others for multiple offences.

99. The case of R v WWS concerns seven young victims. The charges generally related to the commission of indecent acts rather than penile-vaginal intercourse. The gravamen of the charges related to the maintaining of a sexual relationship with two of the children. The ultimate sentence of 11 years six months imprisonment was not held to be excessive. Apart from the first count, the indecent acts brought sentences of two to three years imprisonment. Even though the children in R v WWS were younger, it is difficult to see how, in the present case, a lesser punishment could be merited.

100. The Queen v Partridge also does not assist the respondent. That case was also primarily concerned with the offence of maintaining a sexual relationship with two of the accused's step-children. He pleaded guilty to three counts of acts of indecency in respect of each of the two step-children. At trial, he was acquitted of other such acts but convicted of maintaining a sexual relationship with those two children, an offence carrying a maximum penalty of 14 years imprisonment. The case does not seek to justify the fact that on a number of charges of committing an act of indecency, no sentence was passed. In certain of the matters, the offence of committing an act of indecency carried a maximum penalty of 10 years imprisonment; in others, two years imprisonment. Ultimately, the case is of no real assistance in seeking to determine an appropriate sentence for the offence of penile-vaginal intercourse with a person under 16 years of age or acts of indecency in the presence of another.

101. In the present case, the act of indecency, committed in the presence of CN, was constituted by sexual intercourse with NS, making it a serious offence, reinforcing the impression that Mr Eisenach was clearly giving the girls that not only was intercourse with him acceptable but also, more disturbingly, that it was appropriate for CN to be present while he had intercourse with NS.

102. As to the offence of grooming, it is accepted that it was not of the ordinary kind where an offender seeks to have sexual relations with a young person and is establishing the conditions where this may occur. Here, the sexual relations had occurred. Nevertheless, Mr Eisenach was taking substantial advantage of the vulnerability of CN at a difficult time in her life to re-establish a relationship that would include sexual intercourse. While the companionship that she craved could, in appropriate circumstances, have been provided by him as a compassionate act, he was using this vulnerability at least also for his own corrupt motives. It does not appear to us to justify a sentence below the 18 months that we have identified as what might be expected to be imposed in these circumstances.

103. The subjective circumstances of Mr Eisenach have been set out in detail above. They need to be taken into account. It is clear that he has no real explanation for the offences, no clear understanding of the seriousness of the offences and no deep remorse for committing them. However, we accept that there is some prospect of reform which should be reflected in a significant period of parole under supervised release into the community on conditional liberty.

104. Given the seriousness of the offences, and having regard to the subjective circumstances of Mr Eisenach, it is clear that in all the circumstances of this case, the sentences imposed were inadequate. The manifest inadequacy requires appellate intervention.

105. It seems to us that in the light of all the circumstances referred to above and the maximum penalty provided for the offences, it would be inadequate to impose less than two years imprisonment for each of the offences of sexual intercourse.

106. In relation to the charge of grooming, there are no circumstances that would require less than a sentence of eighteen months imprisonment.

107. The indictment is framed in a confusing manner as to the sequence of charges. Although the sentencing judge attempted to bring some form of order to his task, his approach was also not strictly chronological. That is important because although offences in respect of one particular complainant may justify some form of concurrence, it is difficult to justify offences against the other complainant being other than wholly consecutive upon those offences. The sentencing judge does not appear to have drawn such a distinction.

108. There are, however, two matters which require moderation in the re-sentencing.

109. In the first place, it is well-recognised that on a Crown appeal, there will be a recognition of the double jeopardy which Mr Eisenach has faced. The re-sentencing will ordinarily be less than the sentence that would otherwise be imposed: see Dinsdale v The Queen (at 340-341).

110. In the second place, this judgment has been regrettably delayed because of the substantial pressure of business of the Court. That has left Mr Eisenach in a state of uncertainty as to the time he will have to spend in custody over and above the anxiety that the double jeopardy principle accommodates.

111. As a result of these two considerations, the sentence should be moderated and be less than should otherwise have been imposed at first instance.

112. However, the sentences to be imposed instead are not so minimal a change that they could be considered to be tinkering (see Dinsdale v The Queen (at 341), R v Wilson [2000] VSCA 202; (2000) 116 A Crim R 90 (at [27]). Having carefully considered this issue, it appears to the Court that this is not so. The sentence needs to be adjusted although the individual sentences and the totality are to be moderated because of the factors mentioned above.

113. The appeal is allowed and the sentences imposed by the learned sentencing judge are set aside.

114. The following sentences should be substituted, to be reduced for the plea of guilty, as noted below.

115. On the charge of sexual intercourse with CN between 1 September 2007 and 29 October 2009, which is the third count on the indictment, Mr Eisenach is to be sentenced to imprisonment for two years.

116. On the charge of sexual intercourse with CN between 1 April 2008 and 30 April 2008, which is the fourth count on the indictment, Mr Eisenach is to be sentenced to imprisonment for two years to commence after 12 months of the first sentence.

117. On the charge of sexual intercourse with NS between 30 October 2007 and 2 November 2007, which is count 5 on the indictment, Mr Eisenach is to be sentenced to two years imprisonment consecutive upon the second sentence.

118. On the charge of sexual intercourse with NS on 17 June 2008, which is count 6 on the indictment, Mr Eisenach is to be sentenced to two years imprisonment to commence 12 months after the third sentence.

119. On the charge of act of indecency in the presence of CN on 17 June 2008, which is the second count on the indictment, Mr Eisenach is to be sentenced to six months imprisonment consecutive upon the fourth sentence.

120. On the charge of using a carriage service to transmit a communication containing indecent material to a person under 16 years of age with the intention to procure CN to engage in sexual activity (the grooming charge) between 21 June 2008 and 6 September 2008, Mr Eisenach is to be sentenced to 18 months imprisonment consecutive upon the fifth sentence.

121. That is a total sentence of eight years imprisonment and is to commence on 1 May 2009. The sentences imposed in this matter take into account the offender's plea of guilty. Were it not for that plea, an overall sentence of 10 years would have been appropriate.

122. The Court sets a non-parole period of four years six months to also commence on 1 May 2009 and to end on 30 October 2013.

123. The orders of the court will give effect to these sentences.

I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the appellant: Mr Jon White, Director of Public Prosecutions

Solicitor for the appellant: ACT Director of Public Prosecutions

Solicitor for the respondent: Ben Aulich & Associates

Criminal Code Act 1995(Cth)

(Sentencing) Act 2005

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