R v G [1993] TASSC 70

2. The complainant was born on 14 May 1974 and during the relevant period was living with her mother, her sisters and the respondent. The three acts of intercourse occurred in the family home. Counsel for the Crown asserted to the learned trial judge that the respondent's "attitude towards (the complainant) involved persuasion and a form of blackmail, not amounting to creation of a lack of consent but nevertheless persuasion, the Crown would say, that resulted in her complying with what he wished to do". Counsel then referred to episodes when the complainant said "I really don't feel like doing this" and the respondent responded by breaking glasses and other things and saying things like "Right, fine, don't expect anything of me again". Counsel also said that the respondent recorded two of the acts constituting these crimes on video tape and that the Crown case was "that the use of the video machine and recording of the incidents of intercourse with his daughter ... were in part used for his own gratification, but also in part to ensure compliance or to persuade compliance from" the complainant. Counsel informed the learned trial judge that the material relied upon by the Crown to support that latter assertion was a statement made by the accused in the course of an interview with the police which included the following:

"I used to say to her 'Yes okay, there's tapes, and I

3. The respondent had one relevant prior conviction, being for one count of aggravated sexual assault in 1981, in respect of which he was made the subject of a probation order in a Magistrate's Court in Queensland.

4. Counsel for the Crown also referred to a report prepared by Sexual Assault Services Inc (Tas) from which he read statements which referred amongst other things to the complainant being "bewildered and confused", to difficulties she has had in "establishing and maintaining any form of trust within relationships" and to the fact that she had embarked on counselling which "it (was) foreseen" would "continue for some time".

5. The learned trial judge made the following comments upon passing sentence:

"You have pleaded guilty to three counts of incest upon

your daughter who on the first occasion was aged about

17 and a half years and the last about a year older.

... Two of these acts of incest were recorded by you on

a videotape which you retained. Although there is no

element of lack of consent in your daughter's

participation, the fact that you had these tapes was an

incentive for her to submit to your later approaches

notwithstanding a natural reluctance to do so. She in

no way instigated the sexual activities you indulged in.

...

All these activities involved a breach of your duty as a

parent to your children and must have inflicted

emotional hurt upon them leaving them bewildered and

confused. Both are in need of counselling which is

likely to be necessary for a considerable time to come.

This is not your first sexual offence. In 1981 you

committed an aggravated sexual assault upon a young

child and were placed on probation.

This kind of behaviour is not to be tolerated. You have

been in custody since 10 November last and I accept you

are deeply remorseful for what you have done and for the

hurt you have caused your family. Nevertheless a

substantial gaol sentence is called for."

6. The reference to "children" arises out of the fact that the respondent was also convicted of one count of indecent assault against the complainant's younger sister in respect of which the respondent was sentenced to imprisonment for six months cumulative upon the other sentences. That sentence is not the subject of any appeal.

7. I turn first to consider whether I am satisfied that in the exercise of the Court's discretion the application for leave to appeal should be granted.

8. Counsel for the applicant, whilst disavowing any claim that the complainant did not consent to the acts of intercourse, supported his submissions by referring this Court to the statements made to the trial judge by counsel for the Crown to which I have referred above, to the effect that the existence of the video tapes induced the complainant to submit to the acts of intercourse. By virtue of the Criminal Code, s2A, a person may only be regarded as having consented to something if that consent was freely given and consent is regarded as being freely given when it is not procured by "threats of any kind". To say to a woman that if she does not submit to sexual intercourse video tapes of her having sexual intercourse would be published would plainly be a threat and any subsequent act of sexual intercourse induced by it could well be rape. But this respondent was not charged with or convicted of rape and it would have been unlawful to have sentenced him as if he had been as that would violate the principle referred to in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 and Lovegrove v The Queen (1961) Tas SR 106 that a judge may not take into account aggravating circumstances if the effect of his doing so is to sentence the accused for a crime other than that of which he has been convicted. It follows that not only was counsel's submission to the trial judge that the respondent engaged in "a form of blackmail not amounting to (the) creation of a lack of consent" internally contradictory, but that had the trial judge acted upon that submission by imposing a heavier sentence than would have been appropriate had nothing been said about the complainant's consent, the exercise of the sentencing discretion would have miscarried. At the most Crown counsel's references to threats and blackmail could have been used to rebut any suggestion that the complainant actively encouraged the acts of intercourse, but they could not have been regarded as aggravating factors justifying the imposition of a heavier sentence. Counsel for the applicant also submitted that the making of the video recordings should be regarded as an aggravating factor because it was demeaning to the complainant. In my view the making of the recordings could be regarded as an aggravating factor on that ground but for the purposes of this Court's exercise of its discretion whether or not to grant leave to appeal it is relevant to take into account that no such submission was made to the trial judge.

9. Counsel for the applicant placed reliance upon the adverse effects upon the complainant which it is claimed flowed from the commission of these crimes. However the weight which could be attached to the excerpts from the report from the body corporate referred to by counsel for the Crown which were quoted to the Court was limited by the fact that the knowledge, experience or qualifications of the author or authors of the report were not disclosed to the Court. Further, the statements from the report read out by counsel did not make clear the extent to which the effects on the complainant which were referred to in it were caused by the crimes for which the respondent was being sentenced and the extent to which those effects were caused by other factors referred to in the report which apparently had nothing to do with those crimes. The trial judge was entitled to take into account direct assertions made by counsel for the Crown about the effects which those three crimes had on the complainant and to a limited extent his Honour would have been entitled to draw an inference about the adverse effects which they would have had on the complainant, but the weight which he could properly have attached to the statements made in the report was very limited.

10. The applicant submitted that the inadequacy of these sentences was made manifest when one has regard to "the appropriate tariff" for crimes of this kind committed over the last 15 years. However, leaving aside one case in which the particulars weren't recorded, all but one of those cases involved complainants under the age of 17 years or siblings and several also included charges of indecent assault or other crimes. Only one case of father daughter incest involved a complainant who was over the age of 16 years and in that case a wholly suspended sentence of four months' imprisonment was imposed. Plainly one cannot draw any generalisations from those data and in particular there is obviously no "tariff" which is relevant to this case. I reject the submission that the sentence imposed upon the respondent was outside the usual range because I am not satisfied that there was one.

11. Counsel for the applicant also submitted that the history of the respondent's domineering, violent and jealous conduct towards the complainant, her sister and her mother was a relevant aggravating feature because it flowed from the respondent's "guilty passion" for the complainant. But as no such suggestion was made to the trial judge and as that behaviour could have stemmed from a variety of non sexual motives it would not have been open to the trial judge to have been influenced by that possibility and a fortiori it would not be open to this court to take such a suggestion into account.

12. Counsel for the applicant made no submissions in which he placed particular reliance upon the respondent's prior conviction. Given the relative paucity of the information about the circumstances of that crime provided to the Court, the fact that it was committed 12 years ago and that apparently the Court in that case did not regard it as an especially serious example of that sort of crime, that was an appropriate course for the applicant to adopt.

13. Incest between adults is regarded with some abhorrence by the community because it violates a deeply entrenched cultural taboo but for obvious reasons the crime is regarded much more seriously when the complainant is a child. However in this case, although when the first crime was committed the complainant was for some purposes not an adult, she was over the age of 17 years and was thus regarded by the law as having the capacity to lawfully consent to sexual intercourse and by virtue of the Criminal Code, s133(2) was also regarded as having the capacity to commit the crime of permitting incest. When the other two crimes were committed the complainant was an adult for all purposes.

14. For the reasons which I have given I do not accept the submissions made by counsel for the applicant about the aspects of the case to which I have referred and accordingly the applicant's submissions do not persuade me that this application for leave to appeal should be granted. It is therefore not appropriate for me to consider any further what sentences I would have regarded as appropriate for these crimes.

15. I would refuse the application for leave to appeal.

CRAWFORD J The respondent pleaded guilty to three counts of incest, amounting to vaginal sexual intercourse, contrary to the Criminal Code, s133(1), committed with respect to his daughter K and to one count of indecent assault committed against his daughter R. He was sentenced to four months' imprisonment on each of the counts of incest, each cumulative upon the others, and to six months' imprisonment for the indecent assault, also cumulative upon the other sentences. In all eighteen months' imprisonment was therefore imposed. The sentences commenced on 10 November 1992 being the day upon which the respondent was taken into custody. The Crown has applied for leave to appeal against the sentences imposed on the three incest charges, the only ground being that the sentences were manifestly inadequate having regard to all the circumstances of the case.

2. The respondent was born on 24 March 1954 and was aged 37 or 38 at the time of the crimes. K was born on 14 May 1974. The first incest is alleged in a complaint to have occurred between 5 December 1991 and 31 August 1992 at Taroona. The respondent's counsel told the sentencing judge that K was seventeen years, six months old at the time and counsel for the Crown did not suggest otherwise. The second incest is alleged in an indictment to have occurred between 1 September 1992 and 30 October 1992 at Moonah, but on the stated facts it occurred in late September or early October, when K was aged eighteen years, four months. The third incest is alleged in a complaint to have occurred on 13 October 1992 at Moonah, when K was aged a day less than eighteen years, five months. The indecent assault on R occurred in about February 1992 when she was thirteen years of age. The respondent took her to her bedroom and she lay on the bed. He took off her trousers and pants and rubbed his penis between her legs. She cried. He got her to touch his penis.

3. The facts of the first incest were explained as involving intercourse at home which was recorded by the respondent with a video camera. What led to it was not directly explained to the learned judge, but when describing the third incest K had said that "it was the same when we lived at Taroona" which may be taken as a reference to the first count. The second incest occurred in the lounge room on a sheep skin rug. What led to it was also left unexplained. Once again the respondent recorded the incident on a video camera. K said that he always wanted her to look at the videos of them having sex but she would not do so. The third incest was described by prosecuting counsel in more detail. The respondent went to the kitchen and asked K "are you coming to the room?" He would normally say that if he wanted sex. She said that she did not feel like it. He said, "right, fine, don't expect anything of me again". She said that "he went round and was throwing things around, cups, glasses, anything" and she ended up agreeing. He told her to put on something revealing like a short skirt. She put on a full length dress and went to her parents' bedroom where she joined him in bed. Her description as related by counsel, continued:

"'... he rolled over towards me and started kissing me

on the mouth, my hair, and anywhere. He then started

touching me all over my body. Dad then took my dress

off, I was naked and so was he. He was touching me on

my breasts and vagina, he wanted me to have oral sex

which I did. He also wanted me to play with him.' And

she goes on to state that he told her she was a slut and

a dick-teaser. 'I didn't like what he was saying, I

gave in to him again. We then had sexual intercourse,

he used to like to take his time. We had intercourse in

many ways, he ejaculated on my stomach'."

4. He told her how much he loved her and expected her to tell him the same. That incident was not filmed.

5. It was the case for the Crown, not contested by the respondent, that the video recordings were used in part for the respondent's gratification and in part to ensure or persuade compliance by K, but it must be emphasised that rape was not alleged and the learned judge was therefore obliged to sentence the respondent upon the basis that K freely gave her consent and that her consent was not procured by force, fraud or threats of any kind nor by reason of her being overborne by the nature or position of the respondent. (See the meaning of consent in the Criminal Code, s2A).

6. The respondent's wife and three daughters left him on 15 October 1992 largely because of his violence towards them, which frequently occurred if boyfriends of the daughters, particularly of K, showed any interest. A restraining order was obtained against him. Shortly after the separation the crimes were reported to the police.

7. When interviewed by the police the respondent admitted his use of the video tapes as a persuasive tool. He told the police that he did not want to hurt the girls. After some ineffective attempts to evade some questions he became co-operative with the police in all respects. A significant fact in his background was his conviction in the Brisbane Magistrates' Court in 1981 for aggravated sexual assault for which an eighteen month probation order was made. Counsel for the Crown told the learned judge that it "involved a young girl, indeed a young child, and the accused sexually assaulting her by putting his hand in the area of her crutch."

8. Counsel for the Crown read passages to the learned judge from what he said was a report prepared by the Sexual Assault Services Incorporated (Tasmania). Nothing of what he said was disputed by counsel for the respondent and so much of what was read could be accepted by the learned judge. The report stated that when seen on 12 November 1992 K appeared to be bewildered and confused. At the time of the report she had difficulty in establishing and maintaining any form of trust within relationships. She had suffered from a lack of established support systems which made it difficult for her to disclose what had happened to her. By the age of sixteen, which was before the commission of the crimes, K had ceased her formal education. This had been contributed to by emotional stress and an inability to concentrate. She had attended at least ten schools and her schooling had been inconsistent and spasmodic, the realisation of her academic potential therefore being limited. Some of the passages read from the report by counsel were unclear as to whether some of the difficulties being experienced by K may well have stemmed, at least in part, from factors which did not involve the three acts of incest. The report included the following:

"Each of the girls have undertaken to embark on

counselling with the Service ... It is foreseen that

counselling will continue for some time in order for

each to overcome the long-term effects of the abuse that

has been present in the girls' lives. It is also

anticipated that, and wished by Mrs G in company with

her daughters, that they, at the conclusion of this

case, undertake psychiatric counselling."

9. In mitigation counsel described the respondent's "very mixed up and broken childhood". He had a limited education but some resourcefulness in seeking to obtain employment and a level of success in that regard. He and his wife had struggled financially and had moved home a lot in attempts to improve their financial position. Counsel referred to an answer by the respondent to a question from the police in which he accepted that he had hurt his daughters and said that he loved them and did not want to hurt them any more. In one particularly emotional outburst he described to the police a year of his life, when aged fourteen or fifteen, during which he was regularly sexually abused by two or three men involving anal intercourse and fellatio and how much it had hurt, but he could not tell anyone about it, not even his mother. His counsel said that he is afraid of males and prefers to deal with females. Emphasis was placed on the age of K at the time of the commission of the crimes. She was almost an adult in the eyes of the law at the time of the first incest and an adult on the other occasions. Counsel added however that her age "does not negate that there is an element of exploitation".

10. Nothing said by the learned judge in his comments on passing sentence was criticised by either counsel before this Court. His Honour said that there was no element of lack of consent in K's participation, but the fact that the respondent had the video tapes of two of the acts of incest was an incentive for her to submit to his later approaches notwithstanding a natural reluctance to do so. She had in no way instigated the sexual activities. The respondent's criminal conduct with both his daughters had "involved a breach of duty as a parent to your children and must have inflicted emotional hurt upon them leaving them bewildered and confused. Both are in need of counselling which is likely to be necessary for a considerable time to come". His Honour accepted that the respondent was deeply remorseful for what he had done and for the hurt he had caused his family, but added that behaviour of this kind could not be tolerated and a substantial gaol sentence was called for.

11. Sentences for acts of incest between freely consenting and willing adults are commonly not severe. Frequently imprisonment is not imposed in such cases. But incest by fathers upon daughters up to the age of say fifteen or sixteen years is most usually punished with a significant sentence of imprisonment. A more lenient sentence will usually be justified only in a case where particular circumstances require it in the interests of justice. In R v J (1982) 45 ALR 331 at 335, Toohey J considered the difference between cases involving consenting adults and cases involving children:

"The severity which the criminal law has traditionally

visited upon the offence of incest derives from a number

of considerations. It has been regarded as morally

wrong and an offence against religion. It involves the

genetic risk that certain diseases are more likely to

occur. It is destructive of the family relationship.

It involves a breach of the trust reposed in a parent to

care for and protect his children. The cogency of these

considerations has varied from time to time and from

community to community. In a contribution to Family

Violence - An International and Interdisciplinary Study

(Editors J M Eekelaar and S N Katz, Butterworths 1978),

Mr A H Manchester reviews briefly the attitude of the

law to incest and concludes: 'The actual practice of the

courts indicates that in this context the aim of the

criminal law of incest is, above all, to protect the

young child' (at p 502): see also Bailey and McCabe:

Reforming the Law of Incest (1979) Crim LR 749.

The move away from the notion that law is the custodian

of morals; the view that sexual conduct between

consenting adults does not require the intervention of

the criminal law; and an emphasis upon the importance of

rehabilitating the family have all led to a climate of

opinion that prison sentences may not be appropriate in

some cases of incest. But the protection of young

children from corruption and exploitation, especially by

someone in a position of trust or authority, must remain

an important and generally prevailing consideration."

12. The Criminal Code, s133(2) makes it a crime, that of permitting incest, if a person aged sixteen years or above, with consent, permits another person to have sexual intercourse with him or her knowing that other person to be his or her lineal ancestor, lineal descendant or sibling. By not making it such a crime for children under sixteen to so act Parliament has revealed an attitude that children under that age deserve particular protection whereas children of or over that age are more capable of deciding for themselves whether to engage in such conduct.

13. The sentencing judge was faced with a real difficulty in this case because of the age of K. In most cases of sexual abuse by fathers against daughters the abuse commences at a much younger age than seventeen years. The learned judge had no choice, on the facts placed before him, but to treat the case as one of abuse apparently commencing when the girl was aged 17 and a half, notwithstanding how difficult that may be to believe. Nevertheless K was still of a young age and the respondent clearly owed her a duty to protect her and a duty not to subject her to such abominable treatment. In my opinion he is not entitled to much leniency because of her age. The circumstances in which the crimes were committed show plainly that he was the instigator and that she was not willing but merely submissive to his demands.

14. This is not a case where there are significant mitigatory aspects such as those considered in R v J (supra). His court appearance in 1981 for aggravated sexual assault against a young girl is significant and assists to persuade me that his criminal conduct towards his daughter K deserves much more severe punishment than that imposed by the learned judge. His filming of two of the acts of incest was depraved and deserves particular condemnation. In all the circumstances of the case I conclude that the sentences imposed on the incest charge were manifestly inadequate.

15. For these reasons I would grant the Crown leave to appeal and allow the appeal by quashing each of the three sentences imposed for incest and by substituting for them sentences of eight months' imprisonment each cumulative upon the others and upon the sentence of six months imposed for indecent assault. The first sentence should be expressed to commence on 10 November 1992.

ZEEMAN J I have had the advantage of reading the reasons for judgment prepared by the Chief Justice. I agree with those reasons and with his Honour's conclusion that leave to appeal ought to be refused. Nevertheless there is one aspect of the matter about which I wish to make some observations.

2. In addition to pleading guilty to the three counts of incest committed upon his daughter K, the respondent also pleaded guilty before the learned sentencing judge to one count of indecent assault committed upon another daughter, R, between 10 February 1992 and 30 March 1992. At that time R was aged 13 years. All matters were dealt with together.

3. In the course of stating the facts to the learned sentencing judge, counsel for the applicant made the following observations:

"Your Honour finally I seek to refer your Honour and to

read to the Court a report prepared by the Sexual Assault

Services Incorporated (Tasmania), report for K and R. If

your Honour will bear with me I seek to read it, if that's

possible;

'The Sexual Assault Support Service Incorporated first saw

K, eighteen years, and R, fourteen years, on 12 November

1992, shortly after R had disclosed being abused by her

father. At that meeting each of the girls appeared to be

bewildered and confused, having the process of moving to

alternative safe accommodation. For this report I have

focused on some of the effects common to both girls, that

is not say (sic) as individuals they have not suffered

trauma unique to each of them.

K: K has difficulty now in establishing and maintaining

any form of trust within relationships.

R: R has adapted her behaviour in the attempt to gain her

father's approval.

Both girls lack, now have suffered from a lack of

established support systems and this lack of support system

made it difficult for them to disclose what had happened to

them.'

To both, I am referring to both Complainants now;

'During their lives each of the girls has attended at least

ten schools, and their schooling has been inconsistent,

spasmodic, resulting in limiting each of them in realising

their academic potential. Their mother, Mrs G, states that

the emotional stress, including an inability to concentrate

has been a contributing factor in K ceasing formal

education by the age of sixteen years. R has difficulty in

attending school on a regular basis, the constant moves

have caused disruptions with peer relationships. Each of

the girls have reported difficulties in sleeping and are

having nightmares for some time since this has happened in

their lives. Another affect the abuse has had on the girls

is their confusion and lack of clarity about the child-adult

role by forcing the child to assume the adult sexual

role. The affect this has had on the girls has been of

extreme pseudo maturity. This is manifested in their

willingness to undertake responsibility for feelings and

actions of those around them. Each of the girls have

undertaken to embark on counselling with the Service'

and I should hesitate to stop there your Honour to indicate

that the counselling will be provided to all members of the

family, Mrs G and all the daughters.

'It is foreseen that counselling will continue for some

time in order for each to overcome the long-term effects of

the abuse that has been present in the girls' lives. It is

also anticipated that, and wished by Mrs G in company with

her daughters, that they, at the conclusion of this case,

undertake psychiatric counselling.'

If your Honour please those are the facts the Crown relies

upon and that impact statement the Crown relies upon so far

as sentence is concerned."

4. It is now common practice to place before the Court material as to the impact of a particular crime or crimes upon the victim. It is desirable that that be done in appropriate cases. Appropriate cases include those which involve sexual abuse or other forms of violence. The impact of a particular crime upon the victim is a very relevant sentencing consideration. It assists the Court in evaluating the true nature of the criminality involved. A failure to have regard to the impact upon the victim tends to engender a lack of public confidence in the administration of justice.

5. Such material may be put before the Court in a number of different ways. Counsel for the Crown may merely assert that a victim has suffered in a particular way as a result of the commission of the crime. In the absence of the accused person taking any issue with such an assertion, in normal circumstances the sentencing judge ought to proceed upon the basis that what has been asserted has been made out. It is, of course, incumbent upon counsel for the Crown not to make any such assertion unless in possession of material which justifies the making of such an assertion.

6. Alternatively counsel for the Crown may put before a sentencing judge material in the form of reports and the like dealing with the effect of the criminal conduct upon the victim. That is the course which the applicant followed in the present case. However, the report put before the learned sentencing judge fell far short of what was appropriate. Insofar as it purported to state facts, it may be assumed that the applicant was asserting the existence of those facts. Insofar as it expressed opinions, what the applicant did amounted to no more than informing the learned sentencing judge that some unnamed person or persons, whose qualifications to express the opinions were unknown, had formed certain views as to the effect of certain unspecified conduct on the part of the respondent, in the nature of sexual abuse, upon his two daughters. Insofar as K was concerned, the inevitable conclusion is that the views which were expressed were upon the basis of the respondent having been guilty of sexual abuse of her at times and in ways not the subject of the charges to which he pleaded guilty. I form that conclusion because the report noted that emotional stress (plainly thought to be the result of sexual abuse on the part of the respondent) had been a contributing factor to K ceasing formal education by the time that she attained the age of 16 years, yet the acts of incest upon K to which the respondent pleaded guilty were all committed after she had attained the age of 17 years.

7. The report did not disclose the nature and frequency of the sexual abuse by the respondent of K which had been disclosed to the person or persons preparing the report, nor the period of time over which it was said to have occurred. The opinions expressed as to the adverse effects suffered by K were expressed by reference to conduct towards her on the part of the respondent which was not the subject of any charge and which was not disclosed to the learned sentencing judge.

8. There may be circumstances where, in cases such as the present, criminal conduct on the part of an accused person, not the subject of particular charges, may properly be put before a sentencing judge so as to put the matters to which pleas are entered into a proper context. It is not necessary to consider whether it would have been proper to do so in the present case. The fact is that it was not done. In the result, in sentencing the respondent for the crimes committed by him in respect of K, the learned sentencing judge was asked to have regard to adverse consequences suffered by K as the result of other unspecified conduct on the part of the respondent. Those adverse consequences were said to have been suffered by K in the opinion of an unnamed person having unspecified qualifications so that his Honour in any event could not form a view as to whether any reliance ought to be placed on them.

9. As the applicant put the matter before the learned sentencing judge upon the basis that the respondent had on three occasions had consensual sexual intercourse with his 17 year old daughter, it required extreme care on the part of the applicant if it were to put any material in the nature of a victim impact statement before the learned sentencing judge.

10. The following principles ought to be observed by prosecuting counsel:

1 In each case consideration is to be given to the question

as to whether material as to the effect of the crime upon

the victim ought to be placed before the sentencing judge.

2 If the nature of the case is such that it is determined

that such material ought to be placed before the sentencing

judge then its form must be carefully considered.

3 Counsel may place such material before the sentencing

judge either in the form of assertions of fact, without

reference to source, or in the form of evidentiary material

such as reports, leaving it to the sentencing judge to

determine what is established by such material.

4 If counsel determines to make assertions of fact, he or

she may only do so after being satisfied that the material

available makes it proper to make such assertions. It

would not be proper to make an assertion of fact when the

material available to counsel, if placed before a judge,

would not admit to the making of a finding of the existence

of such a fact. The material to which counsel has regard

for such purposes ought to conform to the same requirements

as those which apply to any material placed before the

sentencing judge.

5 If counsel determines to place material in the form of a

report or the like before the sentencing judge then it is

incumbent upon him or her to ensure that as to facts stated

therein they are stated with precision and that as to

opinions expressed therein that the facts upon which those

opinions are based and the qualifications of the author of

the document to express the opinions are disclosed.

6 Where a report contains opinions based upon facts which

are not to be placed before the sentencing judge then that

part of the report containing the opinions may not be

placed before the judge.

11. It need scarcely be said that these requirements were not observed in the present case and that failure alone provides a reason to refuse the application. I hope that my observations may assist prosecutors in the future in discharging what is an onerous responsibility but one which the interests of justice require be discharged.

12. I should add that nothing I have said ought to be construed as being any criticism of the author or authors of the report in the present case. The difficulties to which I have adverted are capable of being overcome by proper co-operation between those who prepare reports of this nature and those who prosecute cases. The former only are able to provide satisfactory material if the latter specify how the matter must be approached by reference to the actual charges which are laid.