the Crown appeal
29 The principal point made on behalf of the Crown was that the sentence imposed was manifestly inadequate, and that, even if no patent error could be identified in the remarks on sentence, the sentence itself was so far out of proportion to the offence as to establish error for that reason alone. Reference was made to the aggravating features I have already outlined, and to the relatively generous allowance for the plea of guilty, although the submission stopped short of suggesting that such an allowance itself represented an error.
30 In fact, on behalf of the respondent, it had been made plain at an earlier stage that consideration was being given to a plea of guilty. The matter was listed before another judge on 27 September 2001, when the respondent's then legal representative advised that he had instructions to obtain a psychiatric report prior to the entry of a plea. In response to questioning by that judge, counsel said that the question of fitness to plead was to be considered. What is of some significance is that he added that, no matter what course was taken in relation to a plea, he proposed to conduct the matter in such a way that it would not be necessary for the child to be called to give evidence. He frankly acknowledged that he was taking this course in order to avoid losing the benefit of a reduction in sentence under s22 of the Crimes (Sentencing Procedure) Act, which gives statutory authorisation to the practice of reducing a sentence where a plea of guilty is entered.
31 These points were made by senior counsel who appeared for the respondent on the Crown appeal. Given the concession of the Crown, that no challenge was to be made to the allowance made for the plea of guilty, I would simply observe that, even having regard to what counsel had told the Court on an earlier occasion, the discount was relatively generous, but not, of itself, appellably so.
32 Senior counsel for the respondent also referred to a delay in the filing of the Crown appeal. Sentence was passed on 4 April 2002, and the Notice of Appeal was signed on 29 May 2002. In my opinion a delay of this length is unacceptable. However, it is not of such a magnitude as, of itself, and again having regard to the circumstances of this case, to permit this Court to exercise a discretion to dismiss the Crown appeal.
33 Senior counsel who appeared for the respondent had, in the circumstances, a difficult task. He pinned a great deal upon what he described as "consistency in sentencing", and which he presented as a desirable end in the criminal justice system. In order to support this proposition, he referred to the content of a speech made by Spigelman CJ at the Opening of the Law Term Dinner 2002, a speech which can, in full, be obtained from this Court's website. During the course of that speech his Honour the Chief Justice said:
"Inevitably there will be differences on the part of judges in terms of their philosophical approaches to the exercise of the sentencing task. Nevertheless, it would fundamentally undermine public confidence in the administration of criminal justice if it became widely believed that the result was a complete lottery based on who the judge was. It is, I believe, essential for the maintenance of public confidence in the administration of justice that the outcomes of similar cases are, within reasonable bounds, the same. Consistency in sentencing must be more than empty rhetoric. That is a primary task of the Court of Criminal Appeal."
34 This was put as preliminary to reliance upon the only comparable case senior counsel's researches had uncovered. That was a decision of the former Chief Justice, Gleeson CJ, with whom Ireland J agreed: R v Brooker, NSWCCA; unreported, 21 February 1996. In that case the offender pleaded guilty to a charge of having sexual intercourse with a child under the age of ten years. That offence also carried a maximum penalty of penal servitude for twenty years. The sexual intercourse took the form of digital penetration of a four-year-old girl. She suffered serious physical injury, although Gleeson CJ did not find it necessary to detail the medical evidence. There was, in that case, quite a long delay before a plea of guilty was entered. The offender had a lengthy criminal history which included some offences of sexual indecency towards children. The offence was an impulsive one committed while the offender, an alcoholic, was substantially affected by alcohol. In contrast to the present case, there was no relationship of trust or authority between him and the victim, who was the daughter of a woman he had met while drinking at a hotel. Nor were there present the aggravating features of binding and gagging the victim.
35 Coincidentally, at first instance, that offender was sentenced to penal servitude for five years with a minimum term of three years and an additional term of two years, the same term as that imposed on the respondent.
36 This Court unanimously allowed the Crown appeal, and by majority (Gleeson CJ and Ireland J) it re-sentenced the offender to a total period of seven years with a minimum term of four years and six months. Meagher JA would have imposed a minimum term of at least eight years.
37 Pressing the submission concerning the desirability of consistency, senior counsel for the respondent urged that this Court should, if it allowed the Crown appeal, impose a sentence of a similar term to that to which Brooker was resentenced. Indeed, senior counsel went so far as to urge that the decision in Brooker "sets a benchmark" in relation to offences which may be said to fall into a similar class or category.
38 Perhaps there is something to be thankful for in the unavailability of a large pool of sentences imposed in relation to offences broadly similar to those committed by Brooker and the respondent. I would reject the argument that the decision in Brooker "sets a benchmark". Consistency in sentencing may be achieved by the slavish adoption, by a subsequent court, of a sentence selected by an earlier court when the facts are comparable. However, that would be consistency purchased at the cost of the sacrifice of the proper exercise of judicial discretion. Within the bounds of the appropriate range of sentences, each sentencing judge (either at first instance or following appeal) must bring to bear his or her own independent assessment of the particular case.
39 I do not find the argument in relation to the desirability of consistency in sentencing persuasive in this case. Consistency is not derived from a single case. Consistency in sentencing will be achieved from a range of cases involving similar features, and also variables. It depends upon the accumulated wisdom and experience of sentencing judges. In my opinion a single case is inadequate to enable a principled consistent approach.
40 In any event, I am of the view that, since the decision in Brooker, there has been a significant change in the approach taken by this Court to the assessment of proper sentences in relation to offences of a sexual nature: R v AEM [2002] NSWCCA 66; unreported, 12 March 2002.
41 Moreover, while consistency in sentencing is, no doubt, an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed.
42 This was a particularly abhorrent crime. It is one for which the community may rightly demand retribution. The victim was entitled to rely upon the respondent for nurture and care. Instead she was brutally and scandalously assaulted by him. Her injuries alone are a testament to the violence with which the offence was committed. That there is no explanation for the respondent's sudden departure from his previous law abiding conduct is of little assistance to him.
43 This is not a case, thankfully, where the principles of general deterrence feature prominently. There are, however, cases (and this, in my view, is one) where the nature of the criminality is such as to call for a sentence that includes a substantial component of pure punishment. Members of the community would be entitled to think that the courts were failing in their duty if sentences for crimes such as this did not reflect the revulsion of the community. The sentence imposed lacks any such component.
44 In my opinion the Crown has made good its complaint that, in the circumstances of this case, the sentence imposed was manifestly inadequate. It simply fails to reflect the objective seriousness of the respondent's crime. Accordingly, in my view, it will be necessary to quash the sentence imposed and re-sentence the respondent.
45 Against that possibility the Court received an affidavit sworn by the respondent on 2 August 2002. He deposed that, since being in custody, he has seen a psychologist regularly and has applied for admission into a sex offenders' course. He had also enrolled in some literacy courses in order to improve his reading and writing. His teacher of this course reported favourably upon him. The respondent has undertaken employment whilst incarcerated. He further deposed that, on learning of the Crown appeal, he became depressed, although he had resisted the temptation to resume his anti-depressant medication. Nevertheless, his circumstances so upset him that he made serious mistakes at the work he has undertaken.
46 He said that he thinks every day about his crime and remains very remorseful.
47 It is, of course, necessary to bear in mind the particular principles concerning the imposition of sentence by this Court following a successful Crown appeal. The sentence imposed should be at the lower end of the range reasonably available at first instance. As I said at the outset, this case can properly be seen as a being towards the worst class of offences envisaged by s61J. It would not have been surprising to have seen a starting point of a sentence of a total term of fifteen years.
48 There was no challenge to the finding of special circumstances and, accordingly, I would not disturb it.
49 Having regard to all of the circumstances, and in particular the special principles that apply to re-sentencing after a successful Crown appeal, and to the finding of special circumstances, I propose the following orders:
(i) appeal allowed; sentence imposed in the District Court quashed;
(ii) in lieu thereof the respondent sentenced to imprisonment for thirteen years with a non-parole period of eight and a half years.
50 HOWIE J: I have received the very substantial benefit of reading in draft the judgments of both the Presiding Judge and Simpson J. I agree generally with the judgment of Simpson J and the orders she proposes.
51 However, I agree with the non-parole period proposed only because the Crown Prosecutor on the hearing of this appeal conceded that the sentencing judge was entitled to find special circumstances and the parties, therefore, were not heard upon what should be the position if the sentence was significantly increased. But the fact that there are special circumstances found in respect of a total sentence of 5 years does not mean that special circumstances will be found to exist in a total sentence of 13 years. The considerations are different, particularly where a finding of special circumstances is based upon a perceived need for the offender to have a longer period on parole than would result from the application of the usual relationship between the head sentence and the non-parole period. That must have been the major factor which influenced the sentencing judge because neither the fact that the respondent was serving his first period in gaol or that he was to serve that period in protection would require, or necessarily justify, a finding of special circumstances by themselves.
52 Like the Presiding Judge, I too would cavil with Simpson J's observation that the public perception that the sentences imposed are appropriate to the nature and seriousness of the crimes committed is as important to the administration of justice as consistency in sentencing. While consistency in sentencing is a goal to which all courts should strive and can be of particular importance when co-offenders are sentenced, it cannot be allowed to overshadow the legislature's policy with respect to a particular crime which is manifest in the maximum sentence specified for an offence. Consistency must give way to the need for a particular sentence in a particular case for any of the reasons for which punishment is imposed. The need for specific deterrence is an instance where consistency or reliance upon the usual range of sentences must give way to the need for a particular sentence to be imposed upon a particular offender. Denunciation of a particularly serious crime is another.
53 In any event that is not the issue in this case, because there is no requirement that this Court impose a similar sentence to that imposed by a differently constituted Court, on a different occasion and on different facts. That was an exercise of that Court's discretion in determining a Crown appeal. The breadth of this Court's discretion is well established both in determining to dismiss a Crown appeal and in deciding what sentence should be imposed when the appeal is allowed.