R v Feuerstein

une 1996 unrep) R v Simpson [2001] NSWCCA 534, 53 NSWLR 704 R v Thomson [2000] NSWCCA 294 R v Woods [2009] NSWCCA 55 Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 Van Der Baan v The Queen [2012] NSWCCA 5 York v The Queen [2001] HCA 60; (2005) 225 CLR 46 Category: Principal judgment Parties: Regina (appellant/Crown) Representation: Counsel: P Ingram SC (appellant/Crown) G Scragg (respondent)

Solicitors: J Pheils, Solicitor for Public Prosecutions (appellant/Crown) Michael Doughty Solicitor (respondent) File Number(s): 2011/384269 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Law Date of Decision: 28 November 2013 Before: Haesler SC DCJ File Number(s): 2011/384269

Judgment

1. HIDDEN J: The respondent, Michael Feuerstein, was tried in the District Court upon an indictment charging 25 counts of sexual offences committed against boys. He was found guilty of 21 of them. He also pleaded guilty to 2 charges on a separate indictment, referred to in this court as the second indictment. These were possessing and disseminating child abuse material. The sentence passed for the first of those charges, possessing child abuse material, took into an account an offence of possessing prohibited weapons on a Form 1.
2. For the 2 offences on the second indictment he was sentenced to concurrent fixed terms of 2 ½ years and 1 year and 3 months, commencing on 1 December 2011. For the 21 offences of which he was found guilty at trial he was sentenced to an aggregate term of imprisonment for 14 years, comprising a non-parole period of 9 years and a balance of term of 5 years, commencing on 1 June 2012. The total sentence, then, was imprisonment for 14 ½ years with an effective non-parole period of 9 ½ years.
3. The Director of Public Prosecutions has appealed against those sentences, asserting that they are manifestly inadequate and were affected by specific errors in the trial judge's approach. I should record that there was a further matter on a s 166 certificate, for which the respondent was convicted without penalty, but that is not the subject of appeal.

Facts

1. It is necessary to summarise the facts of this unusual case at some length. In relation to the offences of which the respondent was found guilty at trial, this is best done by reference to the trial judge's findings expressed in his remarks on sentence, which include his assessment of the gravity of the offences.

The trial offences

1. These offences were committed over a 20 year period, between 1991 and 2011. The offences were the following:

• counts of aggravated sexual assault: s 61J(1) of the Crimes Act 1900, carrying a maximum sentence of 20 years imprisonment;
• 12 counts of aggravated indecent assault: s 61M(1) of the Crimes Act, carrying a maximum sentence of 7 years imprisonment;
• 2 counts of sexual intercourse with a child between the ages of 10 and 16: s 66C(2)(b) of the Crimes Act, carrying a maximum sentence of 10 years imprisonment;
• 1 count of sexual intercourse without consent: s 61I of the Crimes Act, carrying a maximum sentence of 14 years imprisonment. Some of the later offences under s 61J and s 61M of the Act also carried standard non-parole periods: 10 years under s 61J and 5 years under s 61M.

1. There were seven complainants, aged between 10 and 16 years at the relevant times. For the purpose of sentence, his Honour accepted tendency evidence admitted at the trial which established that:

• The respondent was sexually interested in young boys and motivated to act on that interest.
• There was a pattern of behaviour whereby he would befriend young boys, reward them "with such things as jobs, washing cars, small amounts of money, treats, playing with his guns, which he used as a security guard, dressing up and things of that nature, and providing them with pills and other drugs, including alcohol."
• He would punish some of them by beating them with a cane or other items, and recorded details of this activity in notebooks.
• He photographed the boys in sexual poses where possible, and "indecently assaulted or sexually assaulted them if the opportunity arose."

1. As to the various counts, his Honour expressed his findings in his remarks as follows: "Counts 1 and 2 [ss 61J and 61M] involved the complainant JC. All are said to have occurred at Rosemeadow in 1991. JC said that when he was about 12 or 13 he was a regular visitor to the offender's home at Romeo Crescent, Rosemeadow. ... . JC, as a boy, would stay overnight. He would drink and take pills given to him by the offender. One night after drinking and taking a 'red pill' he woke in the offender's bed to find the offender sucking his penis. He then passed out. JC said the next time he woke the offender had ejaculated on him and was rubbing the ejaculate into his chest with his hand. … . JC spoke of another incident when after a massive drinking session or bender he woke to find himself naked in the offender's bed. The offender was beside him also naked. He was rubbing JC's chest and crotch. This touching was an assault. What was done, particularly to a young boy who was semi‑conscious, was indecent. JC was at the time aged 13, the offender 31. The offender exploited the complainant's violent relationship with his own father. He exploited the child's vulnerability by offering him work and a refuge and then taking advantage of him while he was a guest at Rosemeadow. There appear to be only two incidents during the many years that the offender had contact with JC. I am prepared to accept that the offender also took an interest in other aspects of JC's welfare; this was a common factor with many of the complainants. Whether that was genuine or simply to further his sexual desires I am unable to determine. I suspect that in his mind, both were present, despite their obvious incompatibility. The two offences involved the offender taking advantage of the fact that JC, a child, was drunk on liquor made available to him by the offender. Count 3, an offence of sexual intercourse without consent knowing he was not consenting, involves GS. GS was then 16 or 17. He stayed at the offender's Rosemeadow home. … . One night while watching TV on a lounge GS was given pills. He woke to find the offender sucking his penis. … . There was no consent because GS was asleep or knocked out by the pills. The offender was well aware of this as he had given him the pills. GS was 17, the offender 35. GS was a vulnerable young man with family problems who welcomed the opportunity of work and refuge at Rosemeadow. Here the sexual act appears to be an isolated one in the context of a long relationship which continued after the event and well into GS's adulthood. That relationship, as with others, had within it elements generically described as 'grooming' but part of that relationship also involved the complainant allowing the offender to take pleasure from the company of an attractive young man in exchange for gifts and other support. … Such relationships can as here involve mutual interdependence. Something the offender, I believe, cultivated or instilled in the witness while he was young and vulnerable. The act itself, the subject of count 3, was a serious crime. GS was given pills; he was deliberately rendered helpless so the offender could sexually assault him. Counts 4, 5 and 6 involve JD. Counts 4 and 5 involve s 66C(2) Crimes Act offences, sexual intercourse with a child between the ages of ten and 16 [having the victim fellate him]. Count 6 is a s 61J(1) Crimes Act offence of sexual intercourse while a person was under authority. In relation to Counts 4 and 5, I note the offender invited a troubled young man into his home. The offender became his foster carer for a short time but then asked JD to leave. After leaving the house JD returned and with friends broke in and stole a significant amount of property from Mr Feuerstein. The offender later 'arrested' JD and took him to police. JD was charged and convicted. On arrest he made a complaint the offender had forced on him anal intercourse. This complaint was unfortunately not followed up by the police; this was not JD's fault. The offender knew JD had a drug problem. He knew how old he was. He offered him money to suck his penis. The young man did this and was paid for what he did. … . JD was then under the accused's authority. Count 5 relates to an almost identical allegation a few weeks later. In relation to Count 6, as with Counts 4 and 5, money was offered to the complainant while he was living with the offender and after the offender had taken on the duties as his foster carer. This time the money was offered and accepted to engage in anal sex. After that intercourse commenced the complainant said 'Stop. It's hurting; I don't want to do it.' The offender said, 'It's all right. It will be all right'. He kept going despite continued protests until JD pulled away after about 30 seconds. JD was a particularly vulnerable young man, aged 14, homeless, with a drug problem. The accused took him in and was paid to be his foster carer. He knew JD needed money for drugs. He exploited that need, JD's obvious vulnerability, and his position of authority. Each offence involved a humiliating and degrading experience for the young boy. The intercourse, the subject of count 6, particularly so. While there was a form of consent, in the circumstances here the offender gains little in mitigation from it, given the objective facts and the method used by the offender to exploit the young man to gain his consent. Counts 7, 8, 9 and 10 involve DH. Counts 7 and 8 are s 61M(1) Crimes Act offences. They involve incidents where the offender caned DH. DH's evidence dealt with two specific incidences of caning which establish count 7 and 8. When DH was about eight years old in school Year 3 he was in the games room and was told to pull down his pants, bend over a stool and allow the offender to hit him on the bare buttocks using a cane. During the incident he was called a "sook" and his hair was pulled. Later, he said he was given $50 and dropped off home. He described another incident when he was in Year 5 when he was given a US $100 note after the offender hit him six times on the bare buttocks after he had got him to lean over a stool in the red room at Rosemeadow. … Counts 9 and 10 involve s 61J(1) Crimes Act offences involving DH. On occasions when DH slept over at Rosemeadow he was given pills. He was told they were Valium. One time when he was in Year 5 he woke to a weird sensation and found the offender sucking his erect penis. He was told to relax and the offender kept going. This event started and continued without consent. As he was asleep when it started there could be no consent. A few weeks later DH was on the couch at Rosemeadow. Again, he woke to find the offender sucking his penis. This 'freaked' him out but the offender kept going, he said, for 15 minutes. Count 11 involves an offence of indecency from 2001, s 61M(1) Crimes Act. One night at Rosemeadow the offender masturbated DH's penis over his clothes, there was no skin on skin contact. DH was then in Year 6. This occurred on the couch in the red room. DH was the youngest of the complainants. He was caned from when he was nine years old and while the offence period covers three years his association with the offender continued until he was a young adult. His association with the offender followed the now familiar pattern. He was young, with a difficult home life. He was drawn to the offender by the apparent security of the home at Rosemeadow and also the jobs, gifts and money that were provided to him. Again, in relation to count 10 he was given a pill and woke to find the offender sucking his penis. Later incidents did not appear to involve pills. Again, each offence resulted in serious interference with the physical integrity of the child. While I am prepared to accept the canings were not as harsh as described in the notebooks they still involved the infliction of pain. They were part of a grooming process and had the capacity to cause DH significant long term emotional and psychological harm. Again, the child was groomed to play a part in the offender's ongoing fantasy and sexual interest in young boys. That interest went well beyond fantasy. He recruited DH into acting out those fantasies, taking advantage of and exploiting his youth and naivety. The next matter is count 16. It involves EC. It is a s 61M Crimes Act matter said to have occurred in 2001. EC was another young man who would hang around the office of the accused's security business. On one occasion he was taken to a separate office and told to 'drop his trousers'. He was caned on the bare buttocks by the offender who then touched the spot that had been caned. … . EC said he used to hang around the office but did not return after this. This matter appears to be, so far as this one complainant is concerned, an isolated incident. Counts 17 through to 23 involve JK. They are all matters charged pursuant to s 61M(1) Crimes Act. They all occurred in 2007. JK lived in a house that was built in front of the offender's home at Rosemeadow. … . Counts 17 to 23 all involve allegations of assault and an act of indecency on JK when JK was under the age of 16. Count 17 involves a bet JK had with the offender about a firecracker. He lost the bet and so was hit on the buttocks. He was not sure in evidence if they were bare or not, when he was hit with a cane or a strap but he said he was hit five to eight times. … . Count 18 involves an offence that occurred in the study room. The offender was sitting on the computer chair and he pulled JK over his lap, pulled his pants down and hit him multiple times on the bare buttocks with a wooden flute until it broke. JK said that he ended up with a lot of purple bruising. … . Count 19 involves an offence where JK was caned or strapped on the bare buttocks when he bent over a pool table after he lost a game of pool. He was in Year 7. … . Count 20 involves caning of JK because he was 'sooking' about bruises from an earlier caning. … . Count 21 involves an incident where JK was handcuffed and bent over a black chair and caned. Count 22 follows another bet between JK and the offender in which JK first caned the offender. He lost the bet and the offender then 'Made me pull my pants down and caned me on the bare backside.' Count 23 occurred before a trip that JK and the offender took to the town of Harden. He was caned, apparently to prevent him misbehaving on the trip. JK could not remember the exact circumstances of the caning. Each allegation occurred while JK was under 16. Each relates to a separate and specific act of caning, each involved an assault; each involved an act of indecency because of the circumstances, particularly those involving the caning on the buttocks of the child. More so, where those buttocks were bare. … . The offender actively sought out JK, the son of his next door neighbours. JK was not as vulnerable as the other complainants but the offender successfully exploited his youth and immaturity. He offered him jobs, holidays and gifts. He gradually introduced JK into his own fantasy world and induced him to act some of those sexual fantasies out. JK was intelligent and mature enough to end his association with the offender prior to there being any further escalation of indecent activity. These crimes, however, involved a significant abuse of a young child and while the offender may pretend to himself that JK was his friend, the relationship was exploitative and wrong. When I examine each of these matters individually I do form the view that they fall, however, well below the middle of the range of objective circumstances. Individually, they are not mid-range offences. When I come to impose a sentence I must impose individual sentences for each matter but the collective impact of this series of offences cannot be underestimated. Counts 24 and 25 involve matters involving sexual intercourse between the offender with JC, while JC was under the authority of the offender. They are the most recent allegations. The offender had been employed as a security officer for many years. It then appears he was for a period unemployed. He sought and obtained a job as a youth caseworker with a reputable youth support agency. The offender abused that position by first, bribing JC and then because of those bribes and pressure, that is by abuse of his position and authority, made JC suck the offender's penis while in the lounge of the agency's home at Canyonleigh: count 24. While the child obeyed the direction and did not protest there was no consent; that is, conscious and voluntary agreement. The offender knew this was the case as demonstrated by his own words and actions towards JC, as JC described them to the jury. It is not in dispute JC was a child under 16, so each element of the charge was well established beyond reasonable doubt by the evidence. So far as Count 25 is concerned JC's account must be accepted. One night he woke to find the offender had placed his penis inside his anus. He did so for only a short period as JC soon, and understandably, objected. As JC was asleep he could not consent, and as the offender was staying at the home overnight as part of his job of caring for the child it is beyond reasonable doubt that JC was under his authority. Given the description of how JC was lying on the bed the event must have happened in the room he moved to after a fire at Canyonleigh, that is, after 17 August 2011. The events of 2011 indicate the offender's criminal behaviour had escalated to another level. I can only find that he had one motive for taking the position with the youth support agency and that was the access it gave him to young boys. He got the job because he presented as a person of good character with a genuine interest in the welfare of young people. Both were lies. JC was in his care and under his authority. The offender owed a special responsibility to JC by virtue of his position. He had read JC's extensive file. He knew his vulnerabilities and I suspect believed that JC was unlikely to complain and that if he complained, unlikely to be believed. The offender used his position to compel the intercourse of count 24 and sexually penetrated the sleeping child under his care, count 25. While this was a relatively brief episode it was a gross violation of the child's physical integrity." The complainant JC in counts 1 and 2 is not the same person as the complainant JC in counts 24 and 25.

The second indictment

1. As I have said, the second indictment charged two offences to which the respondent pleaded guilty: possessing child abuse material and disseminating child abuse material, each an offence under s 91H(2) of the Crimes Act, carrying a maximum sentence of 10 years imprisonment.
2. There was an agreed statement of facts, which can be summarised relatively briefly. On 1 December 2011, police executed a search warrant at the respondent's home, then at Glen Alpine. A large variety of child abuse material was found. On computers a large number of photos and videos amounting to child pornography were found. As to the photos, there were over 7,000 images containing child pornography or child abuse material. A large number of them depicted young boys, both clothed and naked, being caned. There were 280 videos containing child abuse material. The photos and videos embraced material of a gravity within each of the five categories of the Child Exploitation Tracking Scheme (CETS).
3. Police also found a little over 2,500 printed photographs depicting young boys, naked or in various stages of undress. Some showed the boys being caned or spanked. Some of these photos had been downloaded from the internet, but others had been taken by the respondent, including photos of victims of the trial offences.
4. Police also found 13 written "stories", describing in explicit detail the sexual pleasure to be derived from caning young boys, particularly on the naked buttocks. Some went on to describe sexual experiences subsequent to the caning, ranging from homosexual experiences between boys to anal intercourse between adults and boys, as well as boys being tied and caned and subjected to sexual abuse. Most of these stories were within category five on the CETS scale, as they depicted sexual sadism. Others were categorised as two to three on the scale.
5. Also found were two books described as "punishment books", detailing chastisement of boys with a cane, strap or paddle for various "offences", such as disobedience, stealing, talking in class, and smoking. In addition, three personal diaries were found providing additional detail about the incidents in the punishment books, and describing the respondent caning particular boys, fondling their genitalia, being himself caned by boys, and generally fantasising about the boys in the punishment books. As I understand it, this material included the notebooks recording the caning of boys referred to in relation to the trial offences. Finally, police located a "consent form" purporting to be available for signature by boys prepared to agree to a variety of corporal punishments set out in the document.

Subjective case

1. Born on 20 September 1962, the respondent was aged between 28 and 49 over the period of his offending (from June 1991 to December 2011). He is now 52. He has a minor criminal history, relating to his failure to maintain a firearms register (presumably arising from his involvement in the security industry). His Honour treated him as a person of prior good character. He added, however, that that factor was not entitled to significant weight, given the pattern of repeat offending over a period of time during which he "used his position in the community to further his own sexual gratification."
2. As I have said, the respondent's employment at relevant times was as a security officer. He had formerly been an officer of the Australian Federal Police. Because of that background, and the nature of his offences, he had been on protection in conditions of "non-association" and "limited association." His Honour noted that they are harsher regimes for any prisoner, and found that he would probably spend the bulk of his sentence in some form of protection. His Honour also accepted that a fear of physical attack upon him because of his status as an ex-police officer and a child sex offender would continue "to prey upon him."
3. His Honour also took into account evidence that the respondent has a number of medical problems, which were likely to increase during his time in custody.

Other sentencing issues

1. His Honour considered the related issues of accumulation, concurrence and totality, with reference to relevant authority. He recognised the need for at least partial accumulation in a case where an offender stands for sentence for "separate and discrete criminal acts." He added: "Courts must always be cautious in accumulating sentences because of the compounding impact of long sentences. Each year in gaol has a greater impact on any person than the year preceding it. Sentences should not crush any hope or desire for rehabilitation that a prisoner might belatedly feel … . The impression, however, should never be given that there is some kind of discount for multiple offending … . A court must maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed."
2. His Honour related that last sentence to a case, such as the present, involving multiple offences against different victims. Turning to the issue of the non-parole period, he said: "The aggregate non-parole period here must reflect the minimum period of imprisonment to be served because the crimes call for such a detention … . All the purposes of sentencing relate both to the parole and non-parole portions of a sentence but these purposes are given different weight because the parts of a sentence themselves serve different purposes … ."
3. His Honour had regard to the age of the offences, and the changes in the sentencing regime over the long period during which they were committed. The first seven offences, committed between 1991 and 1999, were subject to the Sentencing Act 1989. The remaining offences were governed by the current legislation, the Crimes (Sentencing Procedure) Act 1999, which came into force in April 2000. (The eighth offence, committed between January 2000 and December 2001 spans those periods.) That said, with the exception of counts 4 and 5, under s 66C(2)(b) of the Crimes Act, which has since been replaced, the maximum sentences have not changed. The remaining offences (counts 9 to 25), committed between 2001 and 2011, are either aggravated sexual assault under s 61J(1) or aggravated indecent assault under s 61M(1). Of those the last nine, committed between 2007 and 2011, attract a standard non-parole period.
4. In the District Court the respondent was represented by Mr Scragg of counsel, who also appeared in this court. His Honour noted Mr Scragg's submission that a number of the trial offences were "historical", requiring the imposition of a lesser sentence than might be expected now. Reference was made to the judgment of Button J (with whom McClellan CJ at CL and Bellew J agreed) in Magnuson v R [2013] NSWCCA 50, a case involving sentences for historical sexual offences, albeit very much older than those in the present case. Button J dealt with this issue at [82] ff. In this court Mr Scragg focused upon the following passage at [127]-[129]: "[127] The fifth factor is judicial memory. Bell JA referred to it in Featherstone v R, when her Honour said at [45]: '[T]his review of a small sample of cases involving broadly similar sexual offences does support the applicant's submission that there has been a significant upward trend in the length of sentences for offences of this character in recent years. It is an impression that accords with my recollection of the pattern of sentencing for sexual offences before the introduction of the Sentencing Act.' [128] RS Hulme J referred to it in PWB v R, when His Honour said at [68]: 'Although as I have said, the Applicant was entitled to be sentenced in accordance with the sentencing standards applicable at the time of his offending, in the case of the second offence, 1991, it is not easy to determine what those standards were. I have no difficulty in accepting that they were more lenient than at present. This has been recognised in Featherstone v R [2008] NSWCCA 71 at [45]; McGrath v R [2010] NSWCCA 48 at [62]; R v RWB [2010] NSWCCA 147 at [176] and accords with my own recollection of events. However, such recognition provides no indication of what the standards were.' [129] My impression is identical to that of Bell JA and RS Hulme J: sentences have indeed increased for serious sexual offences over the past quarter century, in some cases markedly. The concession made in this Court by the Crown Prosecutor, who happens to be a most experienced practitioner in the area of criminal law, lends support to my recollection."

The appeal

1. The principal ground of the appeal is that the total sentence, including the effective non-parole period, is manifestly inadequate. The other grounds are for the most part particulars of that ground. In summary, they assert the following:

• The aggregate sentence for the trial offences is manifestly inadequate, having regard to the totality of criminality involved, and the non-parole period is inadequate to reflect the criminality of those offences.
• Each of the sentences for the offences on the second indictment is inadequate, noting that the sentence for the first count had to reflect the offence on the Form 1.
• The 15% discount for the pleas of guilty to the offences on the second indictment is excessive, given the timing of those pleas.
• His Honour erred in finding special circumstances, so as to ameliorate the total effective non-parole period.
• The degree of accumulation of the aggregate sentence upon the sentences for the offences on the second indictment is inadequate, failing to reflect the totality of the criminality of all the offences.

The aggregate sentence

1. As to the aggregate sentence, the Crown prosecutor in this court submitted that the indicated sentences for the various offences conveyed that his Honour had not given appropriate consideration to the maximum penalty and, where applicable, the prescribed standard non-parole period for each of them. He acknowledged that the indicative sentences were not themselves appellable, but relied upon authority that a sentencing judge must assess the criminality of the individual offences and that an erroneous approach demonstrated in an indicated sentence may reveal error in the aggregate sentence: R v Brown [2012] NSWCCA 199, per Grove AJ (with whom Macfarlan JA and McCallum J agreed) at [17].
2. I do not understand the Crown prosecutor to have argued that his Honour failed to have regard to the maximum sentences or applicable standard non-parole periods. His Honour said in his remarks, "Careful attention to maximum penalties and where applicable, standard non-parole periods, is always required." He went on to develop that proposition, referring to Markarian v The Queen [2005] HCA 25, (2006) 228 CLR 357. Rather, the Crown prosecutor's argument was that his Honour appears to have given inadequate weight to those factors in arriving at the indicative sentence for each offence.
3. That argument was not developed by reference to the indicative sentences individually. They are to be found in the table set out at [10] above. They range from 6 months (for several of the offences of indecent assault by caning the victims) to 8 years for anal intercourse with the last of the victims. Non-parole periods are also indicated for the offences carrying a standard non-parole period, ranging from 9 months (for a caning offence) to 6 years (for the anal intercourse). In my view, an examination of the indicative sentences in the table demonstrates careful attention to the gravity of each crime, having regard to the widely varying circumstances of them. None of them appear to me to demonstrate an erroneous assessment of their criminality.
4. The Crown prosecutor in this court provided Judicial Commission statistics of full time custodial sentences imposed for the trial offences. He did so acknowledging the caution which this court has consistently urged in the use of that material, reiterated recently by Bellew J (with whom Macfarlan JA and Adamson J agreed) in MLP v R [2014] NSWCCA 183, particularly at [44]-[46]. The statistics relate to the offences under the relevant provisions of the Crimes Act: s 61J(1) and s 61M(1) (both before and after the introduction of the relevant standard non-parole periods), s 61I and s 66C(2). The Crown prosecutor relied upon these figures in respect of all the offences, even though they cover the period from 2007 to 2014, embracing only counts 16-25.

The child pornography offences

1. Turning to the child pornography offences, it will be recalled that for the possession offence, taking into account the offence on the Form 1, the respondent was sentenced to a fixed term of imprisonment for 2 ½ years, and for the dissemination offence a fixed term of 1 year and 3 months. In this court the Crown prosecutor treated both terms as equivalent to the non-parole periods of sentences which might otherwise have been imposed. Noting the 15% discount for the pleas of guilty, he pointed out that the undiscounted figures would have been 3 years and 1 year and 6 months respectively. Given the level of criminality of both offences and the maximum sentence for each of them of 10 years imprisonment, and noting that the sentence for the first count embraced the criminality of the offence of possessing prohibited weapons, he argued that each sentence is manifestly inadequate.
2. The Crown prosecutor took issue with his Honour's observation (quoted at [18] above) that he did not regard fantasy communications or documents as seriously as those involving actual children, citing Jarrold v R (supra). That case involved charges, among others, of producing child pornography arising from internet communications between the offender and other men in which he described sexual activity between himself and children. The sentencing judge had found that this material was the product of fantasy rather than real events (although he recognised the gravity of the dissemination of perverted material of that kind). It was in this context that Howie J (with whom McClellan CJ at CL and Harrison J agreed) made the observation at [53]: "Whether or not the material discussed in the communications was the result of fantasies or accounts of actual events was irrelevant. If there was evidence to prove these events actually happened, other charges might have been brought against the respondent. If his Honour's finding was made in order to diminish the seriousness of the offences, then he was in error."
3. Martin v R [2014] NSWCCA 124 was an application for leave to appeal against sentences imposed by the sentencing judge in the present case in respect of child pornography offences. Some of the material comprised text messages sent by the applicant to another man describing his fantasies of engaging in sexual acts with boys. As in the present case, the sentencing judge had expressed the view that those communications were not as serious as they would have been if they described real events, although they remained serious because they produced a distorted view of reality in which sex with children was seen as appropriate. In the Court of Criminal Appeal the leading judgment was given by Beech-Jones J (with whom Hoeben CJ at CL and Rothman J agreed). In relation to this issue Beech-Jones J said at [54]-[55]: "[54] However, the applicant also contended that the 'fantasy' nature of the material meant that its production and dissemination was less serious than the material depicting sexual activity involving actual children, and the fact that it was it was only a communication between two persons via SMS meant that 'other people' would not be likely to view it. [55] In relation to the former contention it was one that his Honour accepted in this case although his Honour noted that a different approach was adopted by Howie J in R v Jarrold [2010] NSWCCA 69 at [53]. I see no error in his Honour's characterisation of the material in this case. However each case depends on its facts. There are undoubtedly situations in which the production and dissemination of material that does not involve the depiction of real children can still constitute an extremely serious breach of s 91H(2)."

The pleas of guilty

1. In relation to the child pornography offences, the Crown prosecutor also submitted that the discount of 15% for the utilitarian value of the pleas of guilty is excessive. Those pleas were not entered until the day fixed for trial. Reference was made to the familiar passage from the judgment of Howie J in R v Borkowski [2009] NSWCCA 102, 195 A Crim R 1, at [31] (9): "As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case. The amount of the discount cannot depend upon the practice of the particular court based upon its administrative arrangements. It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent. There was nothing in the present case that justified a discount above that range."
2. His Honour found the pleas to have had "some utilitarian value." It seems that the fact that they were entered so late arose from their inclusion in the same indictment as the trial counts but, in my view, nothing turns on this. The fact remains that what Howie J had to say in Borkowski was no more than a guide to the exercise of an undoubted discretion and is not prescriptive. There is no basis on which it could be said that the discount applied by his Honour was beyond the bounds of the legitimate exercise of his discretion.
3. In this court the Crown prosecutor submitted that the discount should have been no more than 10%, without conceding that it should have been that high. The practical effect of this dispute is a difference of no more than a matter of months. This ground of appeal is without substance.

Special circumstances

1. In relation to the aggregate sentence for the trial offences, the Crown prosecutor challenged his Honour's finding of special circumstances and the extent of the reduction of the non-parole period from the statutory proportion of that account. He acknowledged that the accumulation of the aggregate sentence on the sentences for the child pornography offences justified some reduction, but only such as would maintain a proportion of 75% between the effective non-parole period and the total sentence. That reduction would be modest because the accumulation was only by 6 months. In fact, the total sentence of 14 ½ years and the effective non-parole period of 9 ½ years left a period of parole eligibility of 5 years.
2. The application of the 75% ratio to the total sentence would have produced an effective non-parole period of about 10 years and 11 months, leaving a balance of term of 3 years and 7 months. The Crown prosecutor noted that, apart from accumulation, his Honour found special circumstances in the respondent's need to adjust to community life after a lengthy period in custody and to be closely supervised for "the longer the better." He referred to cl 218(1) of the Crimes (Administration of Sentences) Regulations 2014, which limits the period during which a parole order may require an offender to be subject to supervision to 3 years. Thus, he argued, the application of the statutory proportion would provide a period of eligibility more than sufficient to meet the purpose of supervision.
3. However, as Mr Scragg pointed out, the respondent's parole would not come to an end when supervision was terminated. For the remainder of the balance of his term he would still be subject to the sanction of parole, whereby his rehabilitation and the protection of the community would continue to be fostered. There is ample authority for the proposition that a finding of special circumstances, and the measure by which it is reflected in the length of the non-parole period, are matters of discretionary judgment although, of course, guided by principle: see, for example, R v Simpson [2001] NSWCCA 534, 53 NSWLR 704.
4. That said, in Simpson Spigelman CJ reminded us at [63] (718) that "there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence." The Crown's primary complaint in the present case is that the effective non-parole period does not achieve that end.

Accumulation/Manifest Inadequacy?

1. It is the issue of accumulation that gives rise to the Crown's primary complaint about the total sentence. The asserted inadequacy of that sentence is said to arise from the lack of an appropriate measure of accumulation. The Crown prosecutor argued that the 14 year aggregate sentence for the trial offences is the result of inadequate accumulation of the indicative sentences. He noted that the sentences for the child pornography offences were directed to be served concurrently, and that they were accumulated upon the aggregate sentence for the trial offences only by 6 months. He submitted that there should have been partial accumulation of the sentences for the child pornography offences and a greater measure of accumulation of those sentences upon the aggregate sentence. The result, he argued, is an overall sentence inadequate to mark the totality of the respondent's criminality.
2. The Crown prosecutor referred us to two decisions of this court dealing with sentence for offending of this kind, again acknowledging the line of authority, also referred to by Bellew J in MLP at [40] ff, that reference to other cases can only be of limited assistance. These were R v Woods [2009] NSWCCA 55, 195 A Crim R 173 and, more importantly, R v Gommeson [2014] NSWCCA 159, both of them Crown appeals. In both cases the respondent had pleaded guilty. The Crown prosecutor did not take us to the facts and circumstances, or the reasoning of the court, in either of those cases, but relied upon them generally as some indication of an appropriate range of sentence.
3. In Woods the respondent had committed a large number of sexual offences, of varying degrees of gravity, upon three boys during two discrete periods in 2005 and 2007. He had also shown the boys pornographic films. A Crown appeal succeeded and sentences totalling 9 ½ years with an effective non-parole period of 6 ½ years were passed, but after a discount of 40% for the respondent's early pleas of guilty and his assistance to the authorities in the investigation of the matter.
4. In Gommeson the respondent was dealt with for 19 sexual offences committed against seven boys, aged between 9 and 16, over a period between early 2005 and late 2011. There were 11 further offences of that kind on a Form 1. In relation to some of the boys the charges were representative counts, being part of a continuing pattern of abuse. He also showed the boys pornographic videos. He was also dealt with for a charge of possessing child abuse material, being photographs he had taken of his victims. In the District Court he had been sentenced to terms of imprisonment totalling 12 ½ years with a non-parole period of 8 ½ years. Re-sentence after a successful Crown appeal led to an overall sentence of 17 years with an effective non-parole period of 12 years.

The parties' cases

1. The Crown's case was that while a significant total sentence of 14 years and 6 months imprisonment with a non-parole period of 9 years and 6 months, was imposed, because of a number of errors in this complex sentencing exercise, the overall sentence was manifestly inadequate, given the totality of the criminality of Mr Feuerstein's offending.
2. Neither party challenged his Honour's factual findings in relation to the trial offences, but Mr Feuerstein did not accept all of his Honour's conclusions as to the objective seriousness of various of his offences.
3. Mr Feuerstein's case was that his Honour had properly applied all the applicable sentencing principles which bound him; that the indicative sentences were not unduly lenient; and that both the aggregate sentence and overall sentence imposed were the result of the proper exercise of the sentencing judge's discretion. It was also relevant that some of his individual offences would not have attracted a custodial sentence, had they been standalone offences.
4. On Mr Feuerstein's case there was no error in his Honour's fact finding and that the sentence imposed properly reflected the totality of the criminality involved in his offending, as well as paying proper attention to the evidence of his subjective circumstances. The total sentence was proportionate to the total criminality of his offending and was the result of the proper application of the principle of totality. The sentence imposed was well within sentence patterns revealed by the statistics and individual indicative sentences were within the available ranges. Matters of accumulation and concurrence were within the sentencing judge's discretion and there had been no error in his Honour's approach, warranting the Court's intervention on appeal, including in relation to the question of special circumstances and the need for supervision.
5. On Mr Feuerstein's approach, in the circumstances of his case, even if error were established the Court would exercise its residual discretion, particularly given the difficult circumstances under which he must serve his sentence. The Court would not tinker with the lengthy sentence already imposed upon him and in the circumstances, even if error were found, the Court would exercise its residual discretion not to interfere in the sentence imposed upon him.

There was error in this sentencing exercise

1. What reveals manifest inadequacy of a sentence which is out of the range of sentences that could have been imposed for particular offending, is a consideration of all of the matters that are relevant to fixing the sentence (see Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [60]).
2. In Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 it was explained at [227] that when an aggregate sentence is imposed: "... it must be remembered that the indicative head sentences cannot be the subject of an appeal to this Court. It is only the aggregate head sentence and aggregate non-parole period that can be the subject of an appeal. It follows that it is not a matter of this Court analysing each indicative sentence and determining whether it is erroneous. Rather, it is a matter of looking at the whole of the sentencing structure in order to determine whether the aggregate sentence can stand or not."
3. Nevertheless, an erroneous approach at the stage that specific indicative sentences are set, may reveal error in the aggregate sentenced reached (see R v Clarke [2013] NSWCCA 260 at [56]).
4. In this case, after giving indicative sentences for the 21 trial offences, Haesler DCJ imposed an aggregate sentence of 14 years, with a non-parole period of 9 years, commencing on 1 June 2012 and expiring on 31 May 2021. The sentence expires on 31 May 2026.
5. I consider that this aggregate sentence was manifestly inadequate, for reasons which I will explain.
6. That aggregate sentence was then partially accumulated on the sentence imposed for the possession of child abuse material offence, for which a fixed term of 2 years and 6 months was imposed after a 15% discount, taking into account the Form 1 weapons offence. That sentence commenced on 1 December 2011 and expired on 31 May 2014. The sentence for the dissemination of child abuse material offence was a wholly concurrent term of 1 year and 3 months, commencing on 1 December 2011 and expiring on 28 February 2013. Those sentences were accepted on appeal as reflecting the non-parole period imposed for each of those offences.
7. Given the gravity of the child abuse material possession offence, I consider that the sentence imposed for that offence was manifestly inadequate.
8. The overall sentence imposed on Mr Feuerstein was the result of his Honour's application of the principle of totality and the finding of special circumstances.

The aggregate sentence

1. In my view, the conclusion which Haesler DCJ reached failed to give effect to the sentencing principles which he was bound to apply, even though his Honour made extensive reference to those principles, including those which apply to historical sexual offences discussed in Magnuson v R [2013] NSWCCA 50. As Button J there observed at [82], that judgment "says nothing about appropriate sentences for such offences committed today, or in the more recent past".
2. His Honour proceeded on the basis that there was a notable increase in sentences imposed after the introduction of the Sentencing Act 1989 (NSW) and a general increase after the introduction of standard non-parole periods for some offences in 2003. The earliest of Mr Feuerstein's offences were committed in 1991.
3. His Honour noted that many of the trial offences had come to light after police found the material which became the subject of the child abuse material charges at Mr Feuerstein's home and investigated what was thereby revealed. His Honour considered that the jury had accepted the Crown case on each count to be overwhelming. He found that while individual sentences had to be imposed for each offence, the collective impact of the offences on the victims could not be underestimated and that the Court had to recognise the harm which this offending had caused them.
4. His Honour noted that each offence had occurred on a separate occasion; that where a sentence for one offence can impact the criminality of another, the sentences should be served concurrently, but that otherwise there should be at least partial accumulation to reflect the separate and distinct criminal acts committed. Care had to be taken, however, because of the compounding impact of long sentences. Nevertheless, the impression could not be given that there was some kind of discount for Mr Feuerstein's multiple offending.
5. These were undoubtedly difficult considerations to reconcile in this case. As his Honour also observed, in a case of multiple offences and different victims, the approach discussed in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 must be adhered to. That is, the final aggregation of the sentences appropriate for each offence, must result in a just and appropriate measure of the total criminality involved. That was not achieved in this sentencing exercise.

The child abuse material offences

1. In his sentencing remarks, his Honour did not refer to the agreed facts, which revealed how very serious the two offences to which Mr Feuerstein entered his late pleas were.
2. The agreed facts revealed that the electronic material found at Mr Feuerstein's home in December 2011 included some 37,000 still images and 800 videos falling into every category of the Child Exploitation Tracking Scheme, including category 4, (depicting penetrative sexual activity between children and adults) and category 5, (depicting sadism, bestiality or humiliation).
3. The print material was some 2,507 images of boys aged between 8 and 12 years in various stages of undress or naked, taken at Mr Feuerstein's residence. Some of these images had been downloaded from the internet. Others were taken by Mr Feuerstein and had notations written on them, with dates and descriptions. There were photos of boys with their penises and buttocks exposed, some with welt marks from caning. Some were taken without the children being aware.
4. The bulk of the 13 written stories found by police were categorised as level 5, the rest 2 and 3. There was also a punishment book found, recording punishment Mr Feuerstein had administered, listing 29 different boys ranging from 9 to 18 years, but mainly aged 12 to 13. It recorded the number of cane strokes administered and where. One was dated from December 1999 to February 2009. The other from January 2001 to February 2009. Three personal diaries provided further information about these incidents, including fondling boys' genitals, as well as fantasies about the boys in the punishment books. The agreed facts provided examples of these entries. A consent form designed to be signed by boys who were to be caned, was also found.
5. The dissemination charge related to email communications of a sexual nature between August and September 2006 to a male in the United States, in which naked pictures of identified victims and others were provided.
6. The Form 1 weapons offence related to six handcuffs and an extendable baton also found at Mr Feuerstein's home. Ten canes of varying lengths and thicknesses were also found there, but were not the subject of this charge.
7. For the late plea entered to these two offences a 15% discount was given, Haesler DCJ concluding that "there was still some utilitarian value in them". That was plainly a very favourable result, given that it was observed in R v Thomson; R v Houlton [2009] NSWCCA 309 at [65] per Spigelman CJ at [154] - [156] and [160] that there should be a discount towards the bottom of the range for late pleas such as those entered on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. There was nothing of that kind here.

The overall sentence

1. When these errors are considered together with his Honour's approach to the principle of totality, which resulted in the sentence for the dissemination offence being made totally concurrent with the sentence for the possession offence and all but 6 months of that sentence being made concurrent with the already inadequate aggregate sentence, the manifest inadequacy of the overall sentence imposed on Mr Feuerstein is stark.
2. The severity of a sentence is not simply the product of a linear relationship between individual sentences and severity may increase at a greater rate than an increase in the length of a sentence, as his Honour observed (see R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15] - [18]). Nor should a crushing sentence that will induce a feeling of hopelessness and destroy any expectation of a useful life after release be imposed on an offender (see MAK at [17]). What such a sentence is, must be determined, however, by reference to the offences committed, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality (see Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104).
3. Questions of accumulation and concurrency must be determined by reference to the question of whether the sentence for one offence can comprehend and reflect the criminality of another offence (see R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11] and [13]). Relevant considerations include the number of victims and whether the offences committed against each occurred on separate occasions (see Van Der Baan v The Queen [2012] NSWCCA 5 at [117]).
4. Here, the criminality involved in the child abuse material offences was not comprehended by the offences dealt with at trial. Certainly the images included some images of victims of the trial offences, but given the number and nature of those images and what was involved in these offences by comparison to those dealt with at trial, there was no question of double punishment for common elements of Mr Feuerstein's offending of the kind considered in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ at [40].
5. The sentencing discretion, in my view, miscarried, with the result a manifestly inadequate sentence for the criminality involved in the entirety of Mr Feuerstein's offending. In the result the appeal must be upheld.

The residual discretion

1. The sentence imposed being erroneously lenient, consideration must, nevertheless, be given to whether the residual discretion should be exercised in this case. The Crown accepted that it had to establish that the residual discretion not to interfere in the sentence imposed on Mr Feuerstein, should not be exercised. Mr Feuerstein's case was that it had not satisfied that onus.
2. It is not only the considerable inadequacy of the sentence which must be considered at this point, but also other matters, such as the delay since Mr Feuerstein was sentenced, although there was here no delay by the Crown in lodging the appeal (see R v Price [2004] NSWCCA 186 at [60]; R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244; (2010) 203 A Crim R 398 at [151]; R v Hersi [2010] NSWCCA 57 at [55]). The fact that the sentences for the child abuse material offences has already expired, is also relevant (see Hernando at [30]).
3. Mr Feuerstein's subjective circumstances, particularly while in custody, about which further evidence was received on appeal, must also be considered. In determining whether to exercise the discretion, the Court is not required to put itself back in the position of the sentencing judge at the moment of conviction, but must take into account this further evidence (see R v Reeves [2014] NSWCCA 154 at [19]; R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1 at [28]; R v Allpass (1993) 72 A Crim R 561 at 562).
4. Mr Feuerstein's release on parole is not imminent. He was sentenced on 28 November 2013 and the appeal was lodged in December 2013. One ground was then advanced: manifest inadequacy. The grounds were amended on 3 November 2014, to raise 7 additional grounds. The appeal was heard on 24 November 2014. Further evidence was then received. An affidavit sworn on 11 December 2014 by Mr Michie, a solicitor employed in the Office of the Director of Public Prosecutions, concerning the conditions of Mr Feuerstein's custody, dealt with in the affidavit which he had sworn on 20 November 2014, was received in December 2014. Further submissions were received in March 2015.
5. The sentences imposed for the child abuse material offences commenced on 1 December 2011. They have both expired, the possession sentence on 31 May 2014, long before the hearing of the appeal. The aggregate sentence for the other 21 offences commenced on 1 June 2012 and is due to expire on 31 May 2026.

Resentencing

1. Section 68A(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) prohibits the Court from imposing a less severe sentence on an appeal such as this, than would otherwise be considered appropriate, because of any element of double jeopardy involved in a respondent being sentenced again, or on the basis of any distress and anxiety suffered by a respondent (see R v JW [2010] NSWCCA 49).
2. In this case, on resentencing, it is necessary to take into account that it has long been considered that safety while in prison is a relevant consideration on sentencing(see York v The Queen [2001] HCA 60; (2005) 225 CLR 466); that every year in protective custody is equivalent to a longer loss of liberty under ordinary conditions of imprisonment (see AB v The Queen [1999] HCA 46; (1999) 198 CLR 111); and that custody for former police officers will involve a greater degree of hardship than might otherwise be the case (see R v Jones and Kelly (1985) 20 A Crim R 142).
3. The evidence received on appeal from Mr Feuerstein, corroborated by that led by the Crown, sheds further light on the considerably difficult circumstances under which Mr Feuerstein will continue to serve his sentence, given his former occupations. That evidence must be taken into account, by ameliorating the sentence which would otherwise be imposed upon him.
4. I will not reiterate the circumstances of the trial offences, which I have earlier discussed, or all of the other relevant matters I have earlier referred to. I agree with Haesler DCJ's conclusion that Mr Feuerstein should have an extended period of supervision once released on parole, given his need for strict supervision when so released.
5. For the trial offences, I would resentence Mr Feuerstein to a total non-parole period of 11 years and a total term of 16 years. This reflects indicative sentences which do not depart from those indicated by Haesler DCJ, but with less concurrency than his Honour concluded was appropriate, resulting in an inadequate aggregate sentence for that total criminality involved in those 21 offences.
6. I also consider that in the circumstances, for reasons already explained, that the application of the principle of totality should not result in any concurrency between the fixed term sentences imposed for the child abuse offences, the last of which expired on 31 May 2014, with the result that the aggregate term should commence on 30 May 2014, with the non-parole period expiring on 29 May 2025. The sentence would then expire on 29 May 2030.

Orders

1. For the reasons given, the orders I would make are: 1. The Crown appeal is allowed. 2. The sentences imposed by the District Court on 28 November 2013 for the trial offences are set aside. 3. Mr Feuerstein is resentenced to an aggregate sentence for the trial offences commencing on 30 May 2014 with a total term of 16 years, expiring on 30 May 2030 and a non-parole period of 11 years expiring on 30 May 2025.

Amendments 04 May 2015 - Matter heard before: Hidden J at [1]; Price J at [59] & Schmidt J at [61].

Appearance for the respondent amended to G Scragg. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 May 2015