• Statutes Amendment (Truth in Sentencing) Act 1994 ;
• Criminal Law (Sentencing) Act 1988 ss3(1), 7, 7A, 9B, 10(1)(c),(d),(e),(l) & (m);
• Criminal Law Consolidation Act 1935 s354;
• R v Liddy [2002] SASC 19; (2002) 81 SASR 22;
• R v Lewis [1993] SASC 4053; (1993) 60 SASR 582;
• R v Lane (1995) 80 ACrimR 208;
• R v Freer (unreported, Court of Criminal Appeal, SA, No S6087, 20th March 1997);
• R v Benier (unreported, Court of Criminal Appeal, SA, No S6077, 13th March 1997);
• R v Sangricoli (unreported, Court of Criminal Appeal, SA, No S6079, 18th March 1997);
• Hoare & Easton v The Queen [1989] HCA 33; (1989) 167 CLR 348;
• The Queen v Tio and Lee (1984) 35 SASR 146;
• R v Dube & Knowles (1987) 46 SASR 118;
• R v King (1988) 48 SASR 555;
• Kovacevic v Mills (2000) 76 SASR 404;
• R v Place [2002] SASC 101; (2002) 81 SASR 395;
• R v Garrett (unreported, Court of Criminal Appeal, SA, No S5652, 29th May 1996);
• R v Wilson (1978) 19 SASR 311;
• R v Bednikov (1997) 95 ACrimR 200;
• R v MWH [2001] VSCA 196;
• R v Holyoak (1995) 82 ACrimR 502;
• The Queen v Golding (1980) 24 SASR 161;
• R v Davies & Gorman (1978) 68 CrAppR 319;
• Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295;
• R v Lowe (1977) 66 CrAppR 122;
• R v Cartwright (1989) 17 NSWLR 243;
• Webb v O'Sullivan [1952] SASR 65;
• R v Osenkowski (1982) 30 SASR 212, referred to.
• R v Cadd [1997] SASC 6187; (1997) 69 SASR 150;
• R v Hooper (1995) 64 SASR 480;
• R v Braham [1994] NTCCA 60; (1994) 73 ACrimR 353;
• Crowley & Garner (1991) 55 ACrimR 201;
• R v Bell (1982) QdR 216;
• R v Duncan (1982) 9 ACrimR 354;
• Vartzokas v Zanker [1989] SASC 1591; (1989) 51 SASR 277;
• R v Lekaj (1997) 92 ACrimR 325;
• The Queen v Thompson (1975) 11 SASR 217;
• The Queen v Stehbens (1976) 14 SASR 240;
• The Queen v Martin (1983) 32 SASR 419;
• The Queen v Reiner (1974) 8 SASR 102;
• R v Smith (1987) 44 SASR 587;
• R v De Vroome (1988) 38 ACrimR 146;
• R v Hunter (1984) 36 SASR 101;
• R v Birmingham (No 2) (1997) 69 SASR 502;
• Marchant v Police [2000] SASC 100; (2000) 76 SASR 234;
• Bekker v Police [2001] SASC 50;
• RH McL v The Queen [2000] HCA 46; (2000) 203 CLR 452;
• R v Stewart (1984) 35 SASR 477, applied.
• R v MJR (unreported, Court of Criminal Appeal, NSW, 18th April 2002), not followed.
• Ryan v The Queen (2001) 75 ALJR 815, discussed.
• R v D [1997] SASC 6350; (1997) 69 SASR 413;
• R v AJW (2001) 80 SASR 246;
• R v Whyte (2000) 207 LSJS 479;
• R v Miller (2000) 76 SASR 151;
• R v Rose [2002] NSWSC 26;
• R v Richards (1980) 2 CrAppR(S) 119;
• R v Todd [1982] 2 NSWLR 517;
• Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59;
• R v Miceli [1997] VSC 22; (1997) 94 ACrimR 327;
• R v D'Arcy [2001] QCA 325; (2001) 122 ACrimR 268;
• R v Bell [2001] WASCA 40;
• R v Wagenaar [2001] WASCA 325;
• R v Gabriel (1999) 137 CCC(3D) 1;
• R v AB (No 2) [2000] NSWCCA 467; (2000) 117 ACrimR 473;
• R v Bailey (1988) 35 ACrimR 458;
• AB v The Queen [1999] HCA 46; (1999) 198 CLR 111;
• R v Everett (1994) 73 ACrimR 550;
• R v Ferrer-Esis (1991) 55 ACrimR 231;
• R v Heryadi (1998) 98 ACrimR 578;
• R v Giri & Karki [1999] NSWSC 1269; (1999) 109 ACrimR 499;
• R v Gooley (1996) 66 SASR 380;
• The Queen v Shrestha [1991] HCA 26; (1990-1991) 173 CLR 48, considered.

CRIMINAL LAW --- PARTICULAR OFFENCES --- OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE --- INTERFERENCE WITH WITNESSES OR JURORS

JUSTICE GRAY: APPEAL AGAINST SENTENCE Appellant found guilty of six counts of unlawful sexual intercourse with a person under the age of 12 years, three counts of indecent assault and one count of offering a benefit to a witness - sentenced to 25 years imprisonment with a non parole period of 18 years - appeal against conviction allowed on one count - verdict of indecent assault substituted for verdict of unlawful sexual intercourse - need to re-sentence appellant - additional evidence submitted to court on hearing of sentence appeal relating to medical condition of appellant and his experiences in prison - use that could be made of additional evidence - review of appellant's offending and the matters of aggravation - proper approach to sentencing - sentencing of paedophiles - whether new head sentence and non parole period should be fixed by reference to sentencing approaches and standards as they existed at the time of the appellant's offending - delay in the sentencing process and its relevance - appellant's harsh prison conditions and their cause - relevance of prisoner hardship to sentencing - whether it is appropriate for prior good character to be taken into account when sentencing sexual offenders - sentencing standards - whether R v D raised the level of penalties for sexual offending against children during the late 1990's and whether its terms were prescriptive - age and its relevance to sentencing - effect of custodial sentence on the appellant's elderly mother - purpose of victim impact statements and their legitimate use - one penalty imposed pursuant to section 18A - sentence of 25 years imprisonment with a non parole period of 18 years fixed- appeal dismissed.

• Criminal Law Consolidation Act 1935 (SA) ss 354(1), 354(2);
• Criminal Law (Sentencing) Act 1988 (SA) ss 3, 7, 7A, 10, 18A;
• Warner, Sentencing in Tasmania 1991;
• Prevention (1997);
• Fox and Frieberg Sentencing State and Federal Law in Victoria 2nd ed 1999;
• R Edney `Hard Time, Less Time: Prison Conditions and the Sentencing Process' Criminal Law Jurnal vol 26 June 2002;
• R Fox `Case Note: Ryan v The Queen Paradox and Principle in Sentencing a Paedophilic Priest: Ryan's Case in the High Court' Melbourne University Law Review vol 26, referred to.
• Ryan v The Queen [1982] HCA 30; (1981-1982) 149 CLR 1;
• R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452;
• R v Smith (1986-87) 44 SASR 587;
• Eliasen (1991) 53 A Crim R 391;
• R v Liddy [2002] SASC 19; (2001-2002) 81 SASR 22;
• R v Jenner [2001] SASC 98;
• AB v The Queen [1999] HCA 46; (1999) 198 CLR 111;
• R v Rushby [1977] 1 NSWLR 594;
• Wong v R [2001] HCA 64;
• Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610;
• Ryan v The Queen (2001) 75 ALJR 815;
• Channon v the Queen (1978) 20 ALR 1;
• Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465;
• R v Dole [1975] VicRp 75; [1975] VR 754;
• R v Kane [1974] VicRp 90; [1974] VR 759;
• R v Williscroft [1975] VicRp 27; [1975] VR 292;
• R v Holder [1983] 3 NSWLR 245;
• R v Young [1990] VicRp 84; [1990] VR 951;
• Leonaris Unreported 13 November 1985;
• R v Lane (1996) 188 LJS 93;
• R v Major [1998] SASC 7089; (1997-1998) 70 SASR 488;
• R v Bird (1987) 9 Cr App R (S) 77;
• Mill v The Queen [1988] HCA 70; (1988-1989) 166 CLR 59;
• R v Todd [1982] 2 NSWLR 736;
• R v PLV (2000-2001) 51 NSWLR 736;
• Re MJR [2000] VSCA 44; [2000] 1 VR 119;
• Radenkovic v The Queen [1990] HCA 54; (1990) 170 CLR 623;
• Tiso (1990) Cr App R 122;
• Holyoak (1985) 82 A Crim R 303;
• Dick (1994) 75 A Crim R 303;
• R v Deputy Governor of Pankhurst Prison; ex parte Hague [1992] 1 AC 58;
• Prisoners A-XX Inclusive v New South Wales (1995) 38 NSWLR 622;
• R v Davies and Gorman (1978) 68 Cr App;
• Astill (No 2) (1992-93) 64 A Crim R 289;
• R v Rostom [1996] VicRp 59; [1996] 2 VR 82;
• Inge v the Queen [1999] HCA 55; (1999-2000) 199 CLR 295;
• R v Boon Unreported NSW Court of Criminal Appeal 17 November 1983;
• R v Lowe (1997) 66 Cr App R 122;
• R v Cartwright (1989) 17 NSWLR 243;
• R v Perez-Vargas (1987) 8 NSWLR 559;
• R v Bailey (1989-1988) 35 A Crim R 458;
• Bekink v the Queen [1999] WASCA 160; (1997) 107 A Crim R 415;
• R v Gooley (1995-96) 66 SASR 380;
• Richards (1980) 2 Cr App R (S) 119;
• R v Wright [No 2] [1968] VicRp 17; [1968] VR 174;
• R v D [1997] SASC 6350; (1997) 69 SASR 413;
• R v Place [2002] SASC 101; (2001-2002) 81 SASR 395;
• The Queen v Hunter (1983-84)36 SASR 101;
• R v Esposito [2000] SASC 182;
• R v Miller (1999-2000) 206 LSJS 313;
• R v Bazley (1992-1993) 65 A Crim R 154;
• R v Crowley S 6719;
• R v Birmingham (No 2) 1997 69 SASR 502;
• Marchant v Police [2000] SASC 100; (1999-2000) 76 SASR 234;
• Bekker v Police (2001) 120 A Crim R 170;
• R v Agius [2000] SASC 259; (2000) 77 SASR 469;
• Drohan v Police [2000] SASC 207;
• R v Symonds [1997] SASC 217, considered.

• Criminal Law Consolidation Act 1935 s353(5);
• Criminal Law (Sentencing) Act 1988 s18A, referred to.
• R v Small (1994) 72 ACrimR 462;
• R v Gooley (1996) 66 SASR 380, applied.
• R v D [1997] SASC 6350; (1997) 69 SASR 413;
• R v AJW (2001) 80 SASR 246, distinguished.

Counsel: MR D H PEEK QC WITH MS N M HURLEY - Solicitors: MCGEE SOLICITORS

Counsel: MS W J ABRAHAM QC WITH MS L M BOORD - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2002] SASC 306

(Court of Criminal Appeal: Mullighan, Williams and Gray JJ)

[2002] SASC 306

Court of Criminal Appeal: Mullighan, Williams and Gray JJ

MULLIGHAN J The appellant appeals against the sentence of 25 years with a non-parole period of 18 years upon his having been found guilty by a jury of six counts of unlawful sexual intercourse with a person under the age of 12 years, three counts of indecent assault and one count of offering a benefit to a witness.

The circumstances of the offences are discussed in the judgments of this Court upon the appeal against conviction (R v Liddy [2002] SASC 19; (2002) 81 SASR 22) and are summarised in the judgment of Gray J, except in relation to two counts where he has recounted some of the evidence in detail.

In her sentencing remarks the learned Sentencing Judge referred to the connection between the appellant as a coach and the four boys through the life saving club, his position as a Magistrate, which she described as a high position of trust and which she said made his offending particularly serious. She went on to refer to other matters of aggravation, including that the appellant had failed the community expectation that a person in his responsible position should be vigilant in the care and protection of the children of parents who had entrusted him with the responsibility to care for their children.

The appeal proceeded on the basis of contentions that the sentencing discretion had miscarried which necessarily involves consideration of the matters which were before the learned Sentencing Judge which I categorise as the first part of the appeal and also upon matters which have arisen or become manifest since sentence was imposed, which I have categorised as the second part of the appeal. There is some overlap but I have endeavoured to consider the two parts separately.

The first ground of appeal is that the learned Sentencing Judge erred in law in that she purported to sentence the appellant in accordance with current sentencing standards rather than the standards which existed when the offences were committed in 1983 to 1986 and further that she failed to address, or take into account, the substantial delay between the date of the offences and the date of sentencing.

Upon sentencing, the learned Sentencing Judge specifically referred to R v D [1997] SASC 6350; (1997) 69 SASR 413. In that case the Court was concerned with the offence of persistent sexual abuse of a child. This offence is created by s 74 of the Criminal Law Consolidation Act 1935 which came into operation in 1994. The offender in D was aged 41 years when he was sentenced. He was the stepfather of the victim. He committed a series of sexual offences against her over a period of about two months on almost a daily basis when she was aged 12 years involving indecent touching, sexual intercourse, masturbation of him by the child, fellatio and cunnilingus. None of the offences constituted rape. Section 74(7) provides:

"A person convicted of persistent sexual abuse of a child is liable to a term of imprisonment proportionate to the seriousness of the offender's conduct which may, in the most serious of cases, be imprisonment for life."

Doyle CJ reviewed a number of cases where a sentence had been imposed for multiple counts of serious sexual offending, all of which included unlawful sexual intercourse: see 421-422. He then addressed an appropriate sentencing standard. He said at 423:

"This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future. By this I mean cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority.

It is not necessary to repeat what the court has said so often in the past about such offences. I merely add this. They are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.

Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing."

He acknowledged that the sentences for offences involving children under the age of 12 years should attract a higher penalty than offences involving children over the age of 12 years. Doyle CJ indicated the sentencing standard is as follows at 424:

"It is not necessary for the court to give a warning before increasing the range of penalties for a particular type of offending: Poyner v The Queen (1986) 60 ALJR 616; Yardley v Betts (1979) 22 SASR 108 at 113-114, per King CJ; R v Lewfatt (1993) 3 NTLR 41 at 43-44, per Angel J and (at 45-46) per Priestley J. Nevertheless, as the cases cited recognise, warnings do have a part to play in the sentencing process. I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previously decided cases to which I have already referred."

In doing so, the Chief Justice made it plain that the standard should be applied in cases where conviction is recorded after the decision in D. He said that although the sentencing standard could be applied in that case, as a matter of fairness the sentence should be determined by reference to the standard reflected in the earlier cases to which he had referred, namely R v Lewis [1993] SASC 4053; (1993) 60 SASR 582, R v Lane (1995) 80 ACrimR 208, R v Freer (unreported, Court of Criminal Appeal, SA, No S6087, 20th March 1997), R v Benier (unreported, Court of Criminal Appeal, SA, No S6077, 13th March 1997) and R v Sangricoli (unreported, Court of Criminal Appeal, SA, No S6079, 18th March 1997). Millhouse J did not address the question of a sentencing standard and Bleby J agreed with the standard proposed by Doyle CJ.

The learned Sentencing Judge adopted the sentencing standard in D. She also specifically referred to R v AJW (2001) 80 SASR 246. The offender was convicted of sexual offences, including unlawful sexual intercourse, gross indecency and indecent assault against his natural daughter, his two stepsons and two other boys who were friends of his stepsons. The offending occurred over a period of about three years when the children were aged between six and 12 or 13 years. Doyle CJ, with whom the other members of the Court agreed, applied the sentencing standard discussed in D: 248. He considered that a total head sentence of 22 years was appropriate but that there should be a reduction to 18 years because of the principle of totality and for other reasons. After the application of other factors, the sentence was fixed at 16 years.

Clearly, the learned Sentencing Judge applied the standards expressed in these cases as a starting point and, in doing so, was in error. AJW followed D in which it was made clear that the sentencing standard was applied to offences committed in the future. The appellant's offending had occurred well before that standard was established. It is true that in D Doyle CJ did say, in a passage which I have cited, that the standard should apply where a conviction is recorded or a plea of guilty is entered after the decision in that case but, as has also been seen in an earlier passage of his judgment, he said that in future sentences "should be increased for persons who commit such offences in the future": 423.

Ms Abraham QC, who appeared with Ms Boord for the respondent, drew attention to R v Whyte (2000) 207 LSJS 479 where the sentencing standard in D was considered in the context of an offender who committed serious sexual offences against his niece on occasions over a period of 13 years from late 1982 until early 1996. He was sentenced to imprisonment for nine years with a non-parole period of five years. His offending occurred, and he was sentenced, before the decision in D. It was argued on his behalf that the sentencing Judge had erroneously applied the sentencing standard in D. It was unnecessary to decide whether such an error had been made because the offending in Whyte constituted the worst type of case and none of the cases before, and including D, purported to establish a sentencing standard for that type of case. It was not established that the sentencing Judge had applied the standard in D. Indeed, the contrary seems likely because of the gravity of the offending and the sentence imposed.

It was submitted by Mr Peek QC, who appeared with Ms Hurley for the appellant, that the sentencing standard which existed when the offences were committed, ie in 1983 to 1986, should be applied upon sentencing the appellant.

In D, the Court reviewed sentences for serious multiple offending imposed in 1993 to 1997. The head sentences in those cases were eight years in one case and six years in the others. In each case the offender pleaded guilty and showed contrition. Given the allowance often made for those matters, those sentences possibly represent a starting point of imprisonment for eight years to about 11 years. In Whyte it was accepted that in cases involving sexual offences over a significant period of time, sentences of five to seven years were not uncommon. However, as was observed in Whyte the Court, in earlier cases and in D, had not purported to establish a maximum standard or range of sentences for the worst type of case. As I observed, and the other members of the Court agreed, at 481:

"In my view they establish a general standard at the time for multiple offending of this nature where there are common features of aggravation such as a breach of trust. There will always be cases which fall outside an established sentencing standard either because in the particular circumstances the standard would be inadequate or too severe."

Another matter of significance is that the sentencing of the appellant had to be undertaken in the present sentencing regime. From late 1983 until 1st August 1994 when s 12 of the Statutes Amendment (Truth in Sentencing) Act 1994 came into operation, with the exception of a few months after the decision of the High Court in Hoare & Easton v The Queen [1989] HCA 33; (1989) 167 CLR 348, remissions applied to both the head sentence and the non-parole period and some sentences were increased for that reason: The Queen v Tio and Lee (1984) 35 SASR 146 and R v Dube & Knowles (1987) 46 SASR 118. It was for the sentencing judge to decide how long an offender was to remain in prison. Some sentences were increased to take account of remissions and perhaps others were not.

As the appellant had to be sentenced in the present legislative regime and not that which existed at the time of his offending, I have doubts that a sentencing standard which existed at that time must now be applied. It is unnecessary for present purposes to have to resolve that contention as there was no sentencing standard in 1983 to 1986 relevant to the appellant's offending as his crimes fall into the worst category of offences of their type. There has never been a sentencing standard for the worst type of cases. In that category the court must fix a sentence proportionate to the gravity of the crimes in the context of the range of penalty for each offence and upon the application of the well known sentencing principles.

Another way of expressing the position is that:

"The ordinary punishment is applicable to the ordinary case. The ordinary punishment is an approximate standard to be applied making due allowance for the circumstances of the particular case": R v Cadd [1997] SASC 6187; (1997) 69 SASR 150 per Doyle CJ at 167."

See also the observations of Cox J in R v King (1988) 48 SASR 555 at 557 and R v Hooper (1995) 64 SASR 480 at 491. In Hooper Cox J, with whom the other members of the Court agreed, said at 491:

"It is necessary to say again that a penalty range or tariff for a particular crime, established by the practice of sentencing judges or by decisions made on appeal, is not something rigid and immutable from which no departure, certainly no upward departure, may ever be made. Any standard range is intended to accommodate the ordinary run of cases, but there will be exceptional cases from time to time that fall outside the range: see R v King (1988) 145 LSJS 278 at 280; R v Prendergast (1988) 147 LSJS 486 at 487-488; R v Nixon (1993) 66 ACrimR 83 at 88-89. The overriding principle is always the need to fix a sentence that is proportionate to the gravity of the offence - the principle of proportionality, as it has been called."

These observations were expressly approved by the Court of Criminal Appeal in this State in Kovacevic v Mills (2000) 76 SASR 404 and R v Place [2002] SASC 101; (2002) 81 SASR 395.

I have not found it necessary to consider the significance of the judgments in R v MJR (unreported, Court of Criminal Appeal, NSW, 18th April 2002) in which the New South Wales Court of Criminal Appeal, comprised of five judges, considered whether a contemporary sentencing standard should be applied to an offender who offended many years ago. That matter should be considered by this Court when it arises for decision.

Although I think the learned Sentencing Judge erred in applying the sentencing standard in D applied in AJW, it is not an error which, standing alone, calls for a reconsideration and reduction of the sentences.

Our attention was drawn to two cases where head sentences of imprisonment for 25 years were imposed for multiple offences of rape: R v Garrett (unreported, Court of Criminal Appeal, SA, No S5652, 29th May 1996) and The Queen v Wilson (1978) 19 SASR 311. The offending in both of these cases was undoubtedly extremely grave, but these cases do not establish an upper limit of sentences for cases of rape with the consequence that sentences for sexual crimes other than rape must attract lesser penalties. Once criminal conduct is in the worst type of offending of that nature, the sentencer must fix the appropriate sentence on the basis which I have mentioned. I have not regarded either of these cases as of any assistance.

The second ground of appeal is that the learned Sentencing Judge erred in law in that she failed to consider and give credit for the effect of the sentence being that the appellant was likely to die in prison or shortly after release, his otherwise previous and subsequent good character, his loss of profession and his employment, the special disopprobrium, distress and stress arising out of his conviction whilst he was the holder of a prominent position of trust and his alleged rehabilitation since the offending of which he was convicted. In the context of this ground, submissions were also made as to the significance of his age and the lapse of time between his committing the crimes and being sentenced.

The learned Sentencing Judge did not refer to any of these matters in her sentencing remarks. It is highly unlikely that she did not have regard to them. As the trial Judge, she had seen the appellant give evidence which included evidence as to his background, his work as a magistrate and his resignation from that position. She was aware that the appellant had no record of any prior offending and, apart from the subject offences, had lived a productive, industrious and otherwise valuable life, including in the community interest. His fall from grace, conviction and imprisonment obviously had a devastating effect upon him and would continue to have such an effect for the rest of his life. These matters could not have been lost upon the learned Sentencing Judge. The same must be said about the possibility of the appellant dying in prison or soon after release.

In Ryan v The Queen (2001) 75 ALJR 815, the High Court had to consider an appeal against sentence by a former priest who had been convicted of 14 serious sexual offences against 12 young boys aged between six years and 14 years and had asked the sentencing judge to take into account 39 additional offences. The offences had occurred over a period of 20 years. He had otherwise been a person of good character. He was sentenced to imprisonment for 16 years. Earlier he had been convicted of 20 similar offences against a number of victims and had been sentenced to imprisonment for six years. It was ordered that the two sentences be served cumulatively. The appeal to the High Court was against the sentence of 16 years. Kirby and Callinan JJ (836, 845), in separate judgments, accepted that in sentencing an offender, such as the appellant, account might properly be taken of additional opprobrium, adverse publicity, public humiliation and personal, social and family stress which he has suffered. Kirby J went on to say at 836:

"Thus, in resentencing the present appellant, it might be appropriate to fix a custodial sentence proper to his case taking into consideration, in a general way, the extent to which the appellant is now publicly identified as a paedophile as a result of the criminal proceedings taken against him. Where this occurs, the stigma will commonly add a significant element of shame and isolation to the prisoner and the prisoner's family. This may comprise a special burden that is incidental to the punishment imposed and connected with it. If properly based on evidence, it could, in a particular case, be just to take such considerations into account in fixing the judicial punishment required."

"To ignore such matters would be as unjust to a prominent person as it would be, in the case of a person in a menial position, to ignore disadvantages to him peculiar to his position, such as a likely greatly reduced, if not utterly destroyed capacity on release from prison, to find any remunerative employment at all."

McHugh J was not convinced that such matters should be brought to account. He said at 825-826:

"First, it would seem to place a burden on the sentencing judge which would be nearly impossible to discharge. The opprobrium attaching to offences varies greatly from one offender and one offence to another. How a judge could realistically take such a matter into account is not easy to see. Whether or not public opprobrium will attach to an offence and, if so, to what extent, will depend on the individual, his or her position and reputation in society, whether and when the offender will return to the community where the offence occurred and the nature of the publicity, if any, that the conviction receives. In the case of long sentences, taking into account the impact of public opprobrium or stigma would seem an impossible exercise and almost meaningless. In addition, taking public opprobrium or stigma into account would seem to favour the powerful and well known over those who were lesser known. I see no reason why the well known individual should get a lesser sentence than the person who is hardly known in his or her community.

Second, the worse the crime, the greater will be the public stigma and opprobrium. The prisoner who rapes a child will undoubtedly be subject to greater public opprobrium and stigma than the prisoner who rapes an adult person. But, without the benefit of a full argument on the issue, I do not see why the objectively appropriate sentence for raping a child should be reduced by reason of any public opprobrium or stigma that the prisoner might suffer."

Gummow J did not consider the matter and Hayne J disagreed with Callinan and Kirby JJ.

As to what is often referred to as "otherwise good character", the sentencing Judge had held that the appellant was not entitled to leniency. McHugh J said at 821:

"First, there were multiple offences involving repeated acts committed over a number of years. They were not isolated incidents which might be said to be out of character. Second, the appellant was, as his counsel conceded before Judge Nield, leading a double life. Over many years, the appellant was doing 'good works' while he was committing grave offences. This contradiction indicates that the appellant's otherwise good character was a minor factor to be weighed. Third, the appellant committed the offences in the course of his priestly duties and it was as a priest that he did the 'good works' which are at the heart of his claim of good character. This reduces the weight that ought to be given to his otherwise good character. Fourth, and related to the third point, the offences involved breaches of trust."

Gummow J did not regard the otherwise good character of the offender as of significance on the facts of the matter as he had used his apparent good character to assist in the commission of the offences and now sought to use it as a matter in mitigation: 827. Kirby J held that the offender was entitled to have brought to account his otherwise good character: 833ff. Hayne J said that no absolute rule of general application could be adopted. He said at 840:

"As I have pointed out, the 'character' and reputation of an offender will ordinarily have many disparate elements. None of those elements can be seen as inevitably and invariably tending in aggravation or mitigation of sentence. The art of the advocate may be to place those features in one light rather than another, and to do so by application of descriptions such as 'good character' or 'umblemished reputation'. But the task of the sentencer requires consideration of what the offender did, and why, as well as who the offender is, and requires consideration of the particular purposes for which sentence is to be imposed. There will be many competing strands of information which are available to be taken into account."

He concluded that there had been no error by the sentencing Judge in rejecting otherwise good character as a reason to reduce the sentence in the circumstances. Callinan J held that otherwise good character is a matter to be considered in mitigation: 845-846. The appeal was allowed and the matter was remitted to the Court of Criminal Appeal in New South Wales to impose a fresh sentence.

There is no clear statement by three members of the Court in Ryan that otherwise good character should usually operate in mitigation. Obviously there are clear cases where it could reduce a sentence, however in cases such as the present case I do not think this matter is of much significance. The appellant used his otherwise good character and his position of trust and prominence in the community to gain the confidence of the parents of the boys and, indeed of the boys themselves, which is a matter of aggravation. The fact that he had otherwise lived his life without offending and had made positive contributions to the community is a matter in his favour but, in all the circumstances, does not justify a reduction in the sentence.

I now turn to the question of the age of the appellant and the lapse of time between the offending and punishment. As has been seen, in this ground of appeal the complaint is that the learned Sentencing Judge failed to consider and give credit to the appellant because the effect of a long sentence such as she imposed was likely to result in the appellant dying whilst in prison or shortly after release.

Section 10(1)(l) of the Criminal Law (Sentencing) Act 1988 ("the Sentencing Act") provides that in determining sentence the Court should have regard to the age of the offender if relevant and known. The question in most cases, particularly when an offender is elderly and has committed serious offences, is how to properly have regard to age.

At the time of sentencing the appellant was aged 56 years and is now aged 57 years. In The Queen v Hunter (1984) 36 SASR 101 on a prosecution appeal, the Court had to consider a sentence of five years imposed with a non-parole period of 14 months upon a 73 year old man for many offences of fraudulent conversion. He was a solicitor and was otherwise of good character. King CJ said at 103:

"The difficult aspect of the respondent's case is his age. A sentencing judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to him. It may be that when that consideration is borne in mind, it can be said that the sentence of five years' imprisonment, which at first sight seems very lenient for the respondent's criminal conduct, is nevertheless within the scope of the judge's sentencing discretion. I am unable to feel the same way, however, about the non-parole period."

He concluded that if the offender had been a younger man, a head sentence of very much in excess of five years would be required. The Court did not interfere with the head sentence but increased the non-parole period to three years and six months. Jacobs and White JJ accepted that there should be some reduction in the sentence on account of advanced age.

In R v Bednikov (1997) 95 ACrimR 200, Olsson J, at 226, made the observation that the question of age of an offender is only one consideration but:

"It may be of critical practical importance in the case of older offenders, where a merciful approach may warrant some moderation of an otherwise justified non-parole period."

The Court of Criminal Appeal in Victoria in R v MWH [2001] VSCA 196 considered an appeal against sentence by an offender aged 57 years who, upon pleading guilty to four counts of indecent assault, eight counts of rape and six counts of assault occasioning actual bodily harm, was sentenced to imprisonment for 12 years with a non-parole period of nine years. The offences had been committed when he was aged between 18 years and 28 years. One victim was a widow who was 10 years older than the offender, and the other victims were five young girls and boy who were young at the time. Callaway J acknowledged that the offender's age at the time of sentencing may mean that he is less likely to re-offend. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual.

In R v Braham [1994] NTCCA 60; (1994) 73 ACrimR 353 the Court of Criminal Appeal of the Northern Territory had to consider the appropriate sentence upon the conviction of an offender of a serious drug offence committed when he was aged 70 years and a further offence committed when he was aged 78 years. Angel J reviewed a number of cases where the significance of advanced age was considered. Although he dissented in the final result, his analysis of the relevant principles of sentencing was not in issue. He concluded that both youth and advanced age often call for some leniency, though not always so. It depends upon the circumstances. He acknowledged that some crimes are so "heinous" that long sentences of imprisonment are appropriate, whatever the age of the offender: 366-367. One case to which he referred was Crowley & Garner (1991) 55 ACrimR 201 where Crockett J said at 206:

"......... it does not follow that every sentence which justifiably deserves that epithet must on that account and on that account alone be held to be manifestly excessive. There will, in my view, be cases in which the offender has by his criminal act or acts forfeited the right to any such hope or expectation [of again living at liberty in the community]."

I respectfully agree with the observations of Angel and Crockett JJ in these cases.

The Court of Criminal Appeal in New South Wales also considered the question of advanced age of the offender in R v Holyoak (1995) 82 ACrimR 502. At the time of sentencing, the offender was aged 75 years. He was found guilty of two counts of indecent assault of a young child over 20 years earlier. He asked that two further and similar offences involving two children be taken into account. The sentence imposed was imprisonment for eight years with a minimum term of seven years. It was submitted that the minimum term was such that the possibility of the applicant dying in prison was quite real. Allen J said at 507:

"Particular complaint is made that all that his Honour said, apart from the reference to his age to which I have already referred, was: 'Age is not a licence to commit sexual offences, nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years'. I find no fault with that observation. Indeed it would seem to be taken directly from the judgment of Badgery-Parker J in DCM (unreported, Court of Criminal Appeal, NSW, 26 October 1993) with whose reasons for judgment Kirby ACJ agreed. The question, rather, is whether there was other significance in his age such that his Honour's failure to identify it and specifically allow for it is demonstrative of error on his part. It is, or course, clear that a sentence imposed upon an offender when he of such an age that, should he not die in gaol, he will have little worthwhile life left after his release is likely to bear more heavily upon the offender than a similar term imposed upon a younger man who can look forward to a worthwhile life after release. This is so obvious that I would not infer that his Honour did not recognise it. The real question, as I see it, is whether the objective gravity of the offences in the present case were such that it was within the proper bounds of judicial discretion for his Honour to impose the sentence that he did notwithstanding what, having regard to the applicant's age, the consequences well might be. It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he well may spend the whole of his remaining life in custody."

He went on to say that advanced age usually means that it will be more onerous for the offender to serve the sentence than if he had been younger. These observations were applied by Kirby J in R v Rose [2002] NSWSC 26 at par 24-26.

The cases clearly show that advanced age may have the effect of reducing a sentence in appropriate circumstances but it does not follow that such age necessarily has that consequence. Obviously a person in his eighties or nineties is not to be inadequately punished for serious crime, merely because of his age. It is to be expected that in such cases the effect of the sentence is that the offender will probably die in prison. Age cannot subsume all other matters to be taken into account, including the four main considerations on sentence, appropriate punishment, protection of the public, deterrence, both general and personal, and rehabilitation, although it may be said that advanced age may have an effect upon one or more of those considerations, particularly deterrence: see Holyoak per Allen J at 507.

In R v Miller (2000) 76 SASR 151 Doyle CJ, when fixing a non-parole period, considered the possibility that a man convicted of six counts of murder could die in prison, or at best have a limited period at liberty in the community at the end of his life. He took the view that this matter would usually require careful consideration of the totality principle and might well result in a reduction of the relevant sentence or non-parole period in the interests of mercy. He said that but for this consideration he would have fixed a longer non-parole period.

Of course, the appellant is not yet of advanced age. He is of an age at which many offenders are sentenced. The significance of his age is that if he is to serve the total period of the head sentence, he will be aged 81 years upon his release unless he is released on parole at some time after the expiration of the non-parole period of 18 years. At that time he will be aged 74 years.

I do not think that the age of the appellant is a reason to reduce either the head sentence or the non-parole period. His crimes are in the worst category of such offending and committed in circumstances which call for severe punishment regardless of his age. At the time the sentence was imposed, there was no evidence before the learned Sentencing Judge to suggest that there were any real prospects of rehabilitation. Only some brief reference had been made by him that he was suffering ill health. He had not expressed any remorse or contrition and there was no evidence that he would not be a danger to the community by committing similar offences as an old man.

The next matter is the appellant's loss of his profession and his employment, including financial loss.

When allegations which became the subject of charges against the appellant were made, he was asked not to sit on any case until the matter was satisfactorily resolved. He retired early as from 28th December 1999 at the age of 55 years. But for these matters he intended to retire at the age of 65 years. He lost the income which he would have earned if he had not been obliged to retire and also sustained a loss in taking his superannuation at an age earlier than age 65 years. Other financial losses have been sustained by the appellant since he was sentenced. I refer to them later.

Also the appellant received substantial publicity when the trial commenced and thereafter. This matter would obviously have been known to the learned Sentencing Judge. He was on bail prior to, and during, the trial. The media filmed him most days at Court, including on a view and at various times during the day which was published extensively on television. There was also substantial publicity in the printed media. It is unnecessary for present purposes to set out in detail the nature and extent of the media publicity. It is sufficient to say that it was about as extensive as was possible. It may be accepted that the appellant suffered considerably from this publicity.

In R v Richards (1980) 2 CrAppR(S) 119 the Court of Criminal Appeal reduced a sentence of imprisonment for 30 months imposed upon a medical practitioner aged 57 years to a sentence of imprisonment for 12 months because of the impact upon him of imprisonment, loss of his profession and the consequential large financial penalty. In Ryan McHugh J acknowledged that the loss of employment or profession or financial benefits such as superannuation may be taken into account when imposing sentence.

The learned Sentencing Judge did not refer to any of these matters in her sentencing remarks. Clearly they are matters which should be brought to account. However, it could not seriously be suggested that the learned Sentencing Judge was not aware of the devastating consequences to the appellant of the loss of his position as a magistrate, the financial losses to him and the effect of the publicity. Her failure to mention them does not suggest any sentencing error. In my view, although they are important matters they did not count for much given the enormity of the appellant's offending and the other matters which the learned Sentencing Judge had to consider.

I mention further submissions made on behalf of the appellant in the general context of this ground of the appeal.

The first is the effect of the delay between the offending, conviction and sentencing of the appellant.

It was submitted that since the offending and before the trial, the appellant was rehabilitated. There is no evidence of any other offending and he had lived a useful life of value to the community.

It is well established that if there has been delay between offending and sentencing and the offender is rehabilitated, that is a matter which usually justifies a lesser sentence: R v Bell (1982) QdR 216 at 220-221; R v Duncan (1982) 9 ACrimR 354, Vartzokas v Zanker [1989] SASC 1591; (1989) 51 SASR 277; R v Lekaj (1997) 92 ACrimR 325

The significance of rehabilitation over a period of substantial delay was discussed by Street CJ in R v Todd [1982] 2 NSWLR 517. He said at 519-520:

"........ where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

The Court was there concerned with delay in sentencing due to a long sentence being served elsewhere. See also Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 64 and R v Miceli [1997] VSC 22; (1997) 94 ACrimR 327.

Obviously rehabilitation, if it has occurred, is a matter of importance in the sentencing process and s 10(1)(m) of the Sentencing Act requires that the court should have regard to the rehabilitation of an offender. Prospects of rehabilitation in appropriate cases must be assessed and brought to account.

The starting point in the consideration of this matter is whether there is evidence which establishes that following his proven offending the appellant had been rehabilitated. The evidence establishes that the appellant continued to work as a magistrate. There is no evidence that he committed any other offences subsequent to the sexual offences in respect of which he was convicted, except the offence of offering a benefit. He committed that offence whilst serving as a magistrate. The evidence establishes that the appellant has not acknowledged his guilt. He has not shown any remorse or contrition. Whether he is in a state of denial as a mechanism to make his life tolerable is not known. Dr Raeside reported that the appellant maintains his innocence and feels badly let down by the system for which he worked. He expressed the opinion that denial is a useful psychological defence mechanism at times of significant threat and stress, presumably caused by the criminal justice system.

Since the appellant committed the sexual offences, he lived with a dark secret kept by him and largely by his victims until recent years. When threatened with exposure, he resorted to the very serious criminal offence of offering a benefit to a witness in an attempt to prevent disclosure of the sexual offences. Mr Peek submitted that this offending has little relevance to the rehabilitation and personal deterrence of the appellant. It only arose because of an investigation in relation to the sexual offences. The real question is whether the appellant is at risk of committing further sexual offences. It was submitted that because the appellant had not been charged with any later sexual offences and had continued his work as a magistrate and his good works in the community for some 15 years, he had been rehabilitated in relation to sexual offending.

I do not accept those submissions. The offence of offering a benefit to a witness was a very serious breach of the criminal law which, in the circumstances, struck at the heart of the criminal justice system and was designed for self protection at the expense of the victims and of the community generally. It is difficult to see how a man who has committed serious crimes when a serving magistrate and who continues to participate in the administration of the criminal justice system as a member of the judiciary, including in the determination of guilt and the imposition of punishment in relation to those who appeared before him, can be said to have been rehabilitated. I expect that a person in the position of the appellant, if rehabilitated, would have resigned from the magistracy or at the least declined to sit in the criminal jurisdiction. Furthermore there is no evidence that the appellant ever sought professional assistance for his deviant behaviour. The cause of it has remained untreated and undiagnosed. It seems that it is only his age when released from prison and his not having been charged with further offences which is the basis for the submission that he is not a threat to the community.

None of the cases to which I have referred thus far on this matter involved an offender who had gone on with his life with the secret of very serious offending and in the hope that it would never be disclosed. It was noted by Chesterman J in R v D'Arcy [2001] QCA 325; (2001) 122 ACrimR 268 that judicial opinion is divided on whether rehabilitation can be proved in the absence of demonstrated remorse. In Bell v R [2001] WASCA 40 the Western Australian Court of Criminal Appeal regarded mere lapse of time between offending and sentence without re-offending as not necessarily establishing rehabilitation and concluded that such cases should be distinguished from cases where there had been genuine remorse and contrition and actual rehabilitation had been established. Anderson J said, at para 9:

"Where nothing more than mere lapse of time without any conviction is relied on for the exercise of clemency, the sentencing court could properly take the view that it was always open to the offender to give himself or herself up and accept his or her just deserts. Failure to do so and success in keeping guilt hidden ought not to be rewarded by sentencing discounts"

"That the applicant ceased offending under those circumstances is not necessarily indicative of rehabilitation. Anyway, the first step towards genuine rehabilitation must surely be a willingness to acknowledge the offending behaviour itself and that it was wrong. There is nothing of that in this case. The applicant has never admitted the offences and has never shown any remorse. He pleaded not guilty. There was a two-day trial and it appears from the sentencing remarks that the line taken on behalf of the applicant at trial was that the complainant's accusations and evidence were maliciously false - motivated by a desire to get back at the applicant for the discipline that the applicant had meted out to the complainant as he was growing up and to punish the applicant for the break-up of the parents' marriage. In my opinion, this was a contraindication of any genuine process of rehabilitation."

Stein AJ said that during the extensive delay it would always have been open to the applicant to make a clean breast of his offences which would have indicated a positive approach to his rehabilitation: para 50. Kennedy J agreed with both Anderson J and Stein AJ.

A different view was taken in R v Wagenaar [2000] WASCA 325. The appellant had been convicted of two counts of rape and two counts of indecent assault which had occurred about 30 years earlier. Ipp J, with whom the other members of the Court agreed, expressed the view that living "a blameless and socially constructive life" since the offending was itself evidence of rehabilitation. Duncan is another decision of the Court of Criminal Appeal, Western Australia. There had been a delay of a few years between the commission of offences under the Bankruptcy Act 1966 (Cth), which was not the fault of the appellant, and sentence. The Court said at 356:

"....... where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail ......."

In D'Arcy a former state politician was convicted of serious sexual offences committed against young children when he was a school teacher some 30 years earlier. No subsequent wrongdoing was alleged against him. McPherson JA expressed his view about this matter as follows at 295:

"I am not, however, persuaded that the appellant's apparently unblemished record since the time when these offences were committed some 30 or more years ago can count for very much in his favour. If it had been known that he had offended in this way, it is certain that he would not have been nominated for or elected to parliament, or appointed to the high offices of State which he has held, with all the advantages of status and remuneration that they entail. Instead, he has brought shame and disgrace on his party and the Parliament of which he was a member. Taking the risk, as he did, that he would one day be found out, does not suggest to me that the appellant has ever had any real appreciation of or remorse for his serious criminal conduct."

Chesterman J in D'Arcy said that he preferred the approach in Duncan. He said at 299:

"A court is likely to have more confidence that an offender has reformed where there is a demonstration of remorse arising from a realisation of personal wrongdoing and a sense of guilt, but I do not think it right that rehabilitation may only be proved in that manner. Other factors such as those described by Ipp J, particularly positive contributions made by the offender to the general welfare of the community, are indicative of rehabilitation. Remorse, when present, is conventionally regarded as a reason to mitigate a sentence, but that is so whenever the offender is sentenced. Its absence does not mean that one should disregard evidence of a substantial period of law-abiding and socially useful living."

I do not think it is possible to state any definite view about the matter in absolute terms as it is the post offence life of the offender which must be considered in its entirety. However, I am inclined to the view expressed by Chesterman J in D'Arcy. Earlier in his judgment he defined "rehabilitation" in this context as meaning "reformation of attitude or character so that the offender regards participation in criminal conduct as unacceptable": 298.

At all events the evidence in the present case does not establish that the appellant has been rehabilitated for the reasons I have mentioned. It is not just a matter of his having denied his past offending, but he has blamed the criminal justice system for his present circumstances and, as I have mentioned, he committed a very serious breach of the criminal law in an attempt to avoid detection.

It was submitted that the effect of a custodial sentence and adverse publicity generally on the appellant's aged mother should be taken into account. I accept that the offending of the appellant, his sentence and the adverse publicity must have had a devastating effect upon his mother. Serious crime and punishment usually have such an effect upon all members of an offender's family. This is a matter which must also have an effect upon the appellant as he is responsible for the distress of his mother.

However, these matters cannot prevail over the need for adequate punishment, protection of the community and deterrence and must, in all the circumstances, be of little weight.

The third ground of appeal relates to the presentation to the learned Sentencing Judge by the prosecution of some assertions contained in victim impact statements. Also, it is contended that the material submitted by parents of the boys who were the victims of the appellant's offending should not have been received because they were not victims within the scope of s 7 or s 7A of the Sentencing Act or, in the alternative, that they had not suffered the required injury or damage so as to entitle them to make a victim impact statement.

In my reasons for judgment in the appeal against conviction, I referred to the boys who were the victims referred to in the charges in respect of which the appellant was convicted as W, Y, R and D. Each of them submitted a written victim impact statement. The mothers of W, R and Y and both parents of D also submitted written victim impact statements. W, his mother, R's mother, Y and his mother, D and his parents all read their victim impact statements to the learned Sentencing Judge in the presence of the appellant. I do not propose to set out the contents of all of those statements. Later I briefly summarise what each of the victims said. They reveal the devastating effects of the appellant's crimes upon each of W, Y, R and D which continued throughout their formative years into adulthood. The effect upon the parents was also devastating. They saw the consequences of the sexual abuse upon their children without realizing the cause at the time.

Section 7 of the Sentencing Act provides, inter alia, that the prosecution must, for the purpose of assisting a court to determine sentence for an offence, furnish the court with particulars of the injury, loss or damage resulting from the offence. Section 7A of the Act provides:

"7A (1) A person who has suffered injury, loss or damage resulting from an indictable offence committed by another may furnish the trial court with a written personal statement (a 'victim impact statement') about the impact of that injury, loss or damage on the person and his or her family.

(2) A victim impact statement must comply with and be furnished in accordance with rules of court.

(3) The court, on convicting the defendant of the offence-

(a) will, if the person so requested when furnishing the statement, allow the person an opportunity to read the statement out to the court; and

(b) in any other case, will cause the statement to be read out to the court.

(4) The validity of a sentence is not affected by non-compliance or insufficient compliance with this section."

Rule 19 of the Supreme Court Criminal Rules 1992 relates to victim impact statements. It provides for the furnishing to the Court and the reading of such statements. R 19.06 provides that the presiding judge may direct that irrelevant matter in a victim impact statement not be read out to the Court.

Section 10(1)(d) and (e) of the Act provides that, in determining sentence for an offence, the Court should have regard to the personal circumstances of any victim of the offence and to any injury, loss or damage resulting from the offence. "Injury" is defined in s 3(1) of the Act as including "pregnancy, mental injury, shock, fear, grief, distress or embarrassment resulting from the offence". "Victim" is not defined in the Act.

In R v Birmingham (No 2) (1997) 69 SASR 502 Perry J held that he could have regard to the impact of the crime of causing death by dangerous driving upon the parents of the deceased. He reviewed cases in this country decided in some instances on different legislation and said at 506:

"In my opinion, the words in the Act, 'any injury, loss or damage resulting from the offence', are apt to describe not only the effects of the offence upon the immediate victim, but also the effects, in so far as they answer that description, on others."

Bleby J expressed the same view in Marchant v Police [2000] SASC 100; (2000) 76 SASR 234. Birmingham (No 2) was decided before the introduction of s 7A of the Act but there is no reason to give a different meaning to "victim" in s 7 than in s 7A. In Bekker v Police [2001] SASC 50, Gray J accepted that the mother of a victim of a sexual offence could make a victim impact statement following Birmingham No 2 and Marchant.

I can see no reason to restrict the meaning of "victim" in either s 7 or s 7A to the immediate victim of an offence. It is unnecessary for present purposes to discuss the scope of the word "victim" in the Act as it obviously covers the parents of the boys who were sexually abused. They were deceived by the appellant into believing that he would care for their sons. They trusted him in view of his position as a magistrate and as a person of apparent good character and also because he was a coach in a respected and well regarded sporting activity. They had the care of their children who were young and dependant upon them. To sexually abuse the children was to interfere in a serious way with the parenting of their children at an important stage of their development. They were clearly victims of the appellant's conduct not only because of the psychological effect of his offending upon them but because of the difficulty he caused to them in their upbringing of their children.

Our attention was drawn to some Canadian cases where the use of victim impact statements has been discussed. In one such case, R v Gabriel (1999) 137 CCC (3d) 1 Hill J, of the Ontario Superior Court of Justice, said at 18:

"Much can be said for an interpretation of 'victim' in s 722 of the Code which limits the production of a victim impact statement to the direct victim of the crime: see R v Curtis (1992), 69 CCC (3d) 385 (N.S.C.A.) at 391-393 per Stratton JA."

In that case the use of a victim impact statement was governed by s 722 of the Criminal Code which defined victim as meaning the person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence and if such a person was dead, ill or otherwise incapable of making a statement, victim includes a spouse or any relative of the person and certain other specified persons: s 722(4). Gabriel is a case involving death.

There is no definition of victim in the Sentencing Act and I do not think Gabriel, or other North American cases cited to us, assist in deciding whether the parents of the boys are victims. As I have said, in my view, they are victims and their statements were properly received by the learned Sentencing Judge.

The alternative complaint was that the victim impact statements addressed matters that went beyond what is permitted by s 7 of the Act (and presumably s 7A). The following passage occurs in the statement of D's mother:

"From what I have learned both before and during the trial, I feel Mr Liddy is an extremely manipulative and sick person. It is not normal to place young boys in both a physical and mental situation that they cannot possibly understand or cope with. I can only wonder at the continuing anguish imposed not only on our son [D], but who knows how many other boys placed in this position."

"All I can really say is that Mr Liddy is a very sick man who has manipulated my son in a very cunning way. Unfortunately it seems my son is not the only one, and I can only hope he is put away and can no longer impose his will on any other children."

"Y was very happy being in the surf life saving club."

"To this day my son still carries the pain of the betrayal by Mr Liddy as I will always carry my guilt. Guilt for not seeing Liddy for the kind of man that he is. Yet I also do understand that monsters like Liddy have made a life out of deceiving parents with all the right words and motions.

For the beautiful soul you so violently took all those years ago, I pray Mr Liddy that your God deserts you and that you rot in hell."

"Yes. I hope that Peter Liddy is found to be guilty of these crimes - he deserves it. He is a sick man who has used his position in society to gain access and opportunity to molest little boys. How could he work in a court as a magistrate and 'pass judgment' on other people's crimes when he is committing one of the most shameful and disgusting crimes? I hope that he is put in gaol for life. M may be able to justify his actions in his own mind or simply deny that they ever took place. However those whose lives he has effected will be left with this for life. Hopefully his peers will recognise his ill-effect on society and do what is right and just."

I accept that these statements do go beyond what should be included in a victim impact statement. They contain insulting and demeaning remarks and opinions about the appellant which are of no use in the sentencing process, although it may readily be understood why the victims would make those remarks. The statement of D expresses a view about the sentence. The purpose of s 7A is to facilitate participation by a victim in the sentencing process by the presentation of a written statement to be considered by the Court which may be read to the court. It is to be expected that many victims will not know the limits of what may be included in a statement. As I have said R 19.06 provides that the presiding judge may direct that irrelevant material not be read out to the Court.

The learned Sentencing Judge did not direct that the impugned sections of the victim impact statements not be read, but I do not think there has been any compromise of the sentencing discretion. The power to direct that parts of the statements not be read is to preserve the dignity of the process and to prevent abuse of the offender.

However, it follows that if the presiding judge is to give such a direction, the judge will be aware of the offending parts of the statement. The fact that the presiding judge is aware of these matters cannot prejudice the sentencing process unless the judge has regard to that material. There is no reason to suppose that the learned Sentencing Judge had regard to any of these matters so that the sentencing discretion miscarried. She had heard the evidence of the boys, then adults, at the trial and would have been well aware of their feelings towards the appellant. She would have anticipated the feelings of the parents.

Later I refer to the complaint that the learned Sentencing Judge declined to adjourn the sentencing hearings with the consequence that the appellant could not obtain legal representation. It was submitted that he did not accede to the reading out in the Court of the impugned passages of the victim impact statements and that the lack of legal representation affected his capacity to contest the assertions made in the statements. I do not think these matters affect the sentencing process in any relevant way.

The fourth ground of appeal is that the learned Sentencing Judge sentenced the appellant on a factual basis which was not proved. It was submitted that the appellant disputed all of the incidents alleged by the complainants, including those which were not the subject of charges. The jury found the appellant not guilty of some of the charges. In the judgments on the appeal against conviction, the basis of the verdicts of not guilty was analysed and I need not repeat what was said in the judgments of the Court on that occasion. It is sufficient to say that there is no reason to suppose that the jury rejected any of the evidence that the appellant had committed the uncharged acts. The learned Sentencing Judge was entitled to reach her own conclusions about the extent of the conduct of the appellant provided that it was not inconsistent with the verdicts of the jury: The Queen v Thompson (1975) 11 SASR 217, The Queen v Stehbens (1976) 14 SASR 240 and The Queen v Martin (1983) 32 SASR 419.

The complaint is that with regard to W and D, the learned Sentencing Judge had regard to the evidence of uncharged acts which, she said, reflected a course of conduct over a lengthy period of time. However, she went on to say:

"Although you are not to be sentenced for crimes of which you have not been convicted, the evidence of that other conduct confirms that these offences were not isolated acts but were part of a continuing course of conduct involving the preying on young children. That thereby reduces the scope for leniency."

"In this case, however, I am confronted with six counts of unlawful sexual intercourse involving each one of these victims. At least four of those acts can be characterised as acts of a violent nature."

In my view, this ground of appeal must also fail. Section 10(1)(c) of the Sentencing Act provides that the Court should have regard to:

"(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct."

It is well established that a person may only be sentenced for offences of which he or she has been convicted and is not to be punished for offences which are not the subject of charges, however the Court is entitled to take into account the context and the surrounding circumstances of the crime, including whether the crime is an isolated offence. The surrounding circumstances may be taken into account in considering whether to extend leniency: The Queen v Reiner (1974) 8 SASR 102 and D at 418-419. Doyle CJ summarised the position in D as follows at 419:

"The term ['representative counts'] is well known, and is to be found in a number of decisions. However, as is equally well known, the term is a convenient if somewhat inaccurate term. As applied these days it refers to the approach to which I referred when making reference to R v Reiner. That is, the court sentences an offender in respect of a relatively small number of offences, but does so on the basis that those offences were not isolated offences, but part of a course of conduct involving similar behaviour. On that basis, the scope for extending leniency is reduced. The uncharged offences that are part of the course of conduct cannot be used to increase the potential maximum punishment, which maximum remains the accumulation of the maxima attracted by the charged offences. The only way in which the uncharged offences can be used is to rely upon them to refuse to extend the leniency that might be extended if the offences for which the offender is convicted were isolated offences. As Bray CJ said in R v Reiner (at 105), the distinction may seem metaphysical, but as he also said it is 'a recognised and time honoured distinction for all that'.

The process of sentencing for a limited number of offences, on the basis that they are part of a wider course of conduct, has been regarded by this Court in the past as enabling the court adequately to take account of the seriousness of a course of conduct as a whole. The practice is well established."

In my view s 10(1)(c) does not extend the significance of uncharged acts in the sentencing process.

The jury could only give verdicts as to incidents which were the subject of charges. They were required to consider all of the evidence as to the conduct of the appellant for the purposes discussed in the judgments relating to the appeal against conviction, but they could not announce any decision about the uncharged acts. However, the learned Sentencing Judge was obliged to reach her own conclusion about those matters provided that it was not inconsistent with the verdicts of the jury. In my view, she was entitled to reach the conclusion which she expressed in her remarks on sentence which I have mentioned. She did not err in her approach to this matter and this ground of appeal must fail.

The fifth ground of appeal is that the learned Sentencing Judge erred in refusing to adjourn the sentencing process as requested by the appellant.

The jury returned the verdicts on 5th June 2001 and the appellant was remanded in custody for sentence. At that time he was represented by counsel. On 15th June 2001 the matter was called on for hearing. The appellant was represented on that occasion. Victims were present. Their victim impact statements had been given to the appellant's legal representatives the previous day. The appellant made an application to be absent from the court when victims read their statements and when sentencing submissions were made. He also made an application for the sentencing process to be adjourned until after the completion of his appeal against conviction on the ground that the extraordinary media publicity could influence the exercise of the sentencing discretion. The learned Sentencing Judge was informed that the victims and their families were distressed at the applications which had been made. It appears that those who were proposing to read their statements wanted to do so that morning and all victims wanted sentencing to proceed expeditiously. The learned Sentencing Judge intimated that she would accede to an application by the prosecution that she state a case to the Full Court to decide whether the appellant had to be present during the sentencing process and particularly when victims read their victim impact statements.

Section 9B of the Sentencing Act was enacted by Act 37 of 2001. It provided, inter alia, that a person who is to be sentenced for an indictable offence must be present when the sentence is imposed and throughout all proceedings relevant to the determination of sentence. This new provision came into operation on 3rd August 2001. I understand that there was no longer any need to state a case to the Full Court.

On 17th August 2001 the matter again came before the learned Sentencing Judge. The appellant was represented by counsel who informed the learned Sentencing Judge that some victims had instituted civil proceedings against the appellant and that an injunction had been made restricting the use of his assets with the consequence that he did not have access to funds to enable his lawyers to prepare his case on sentencing. The learned Sentencing Judge intimated that she did not regard lack of funds as a reason to delay sentencing as the appellant was legally qualified and if he could not secure legal representation, he could present his own case. She said that she would proceed on 31st August 2001 whether or not the appellant was represented.

On that day the appellant was present without legal representation. He applied for a further adjournment. The victims were again present. The appellant said he had not seen the victim impact statements. Copies were given to him and the victims who read their statements out to the Court proceeded to do so. Submissions were then made by the prosecution. At the conclusion of those submissions the appellant said that he wanted to be represented by his lawyers. The learned Sentencing Judge adjourned the matter until 7th September 2001 and told him that if he was not represented he would have to make submissions personally.

When the hearing resumed on that day, the appellant was not represented. He said that his assets remained frozen and he could not pay for legal representation. He said that he could not make submissions personally for the reasons which he expressed in a letter he had written to the learned Sentencing Judge at an earlier time. In that letter he had said that he did not feel that he could represent himself adequately and he sought an adjournment until funds became available to enable him to secure legal representation. He said that he wanted sentencing postponed until after his appeal against conviction had been completed as it was important that he should use all of his funds for that purpose rather than have them depleted on sentencing issues. The appellant also wrote that he had been diagnosed as suffering from depression over the previous two years and more so in recent times, particularly after the verdicts. He had difficulty in attending court and concentrating and he did not want to make decisions as to what to put forward in submissions. He said he wanted his legal representatives to question victims as to the content of their statements and perhaps to test the statements in other ways. He asserted that he was not the proper person to undertake that task. He wrote that he had been in solitary confinement for almost three months and apart from the effect of this circumstance on his depressed state, he did not have the facilities to arrange character witnesses or other material for sentencing submissions.

The learned Sentencing Judge asked the appellant if he wanted her to consider ordering a pre-sentence report or a psychiatric report. He declined saying that he wanted legal advice and could not do so without obtaining funds as he owed a significant amount to his lawyers. The learned Sentencing Judge said that she was sympathetic to the appellant's position but, in the circumstances, it was necessary that the matter be brought to a conclusion. She proceeded to sentence after a brief delay.

I have been troubled about this ground of appeal. The learned Sentencing Judge did not state the circumstances which she considered prevented further delay in the sentencing but I expect she had regard to the community interest and the interest of the victims in finalising the matter without further delay and that the matter had been brought on for hearing on three previous occasions. She may also have considered that it is usually in the interests of the administration of justice that sentencing occur before the hearing of an appeal against conviction so that if there is an appeal against sentence the two appeals may be heard together by the same coram. She may also have considered that no explanation had been given to her about why sufficient funds for legal representation in the sentencing process could not be excluded from the operation of the injunction.

Nevertheless the crimes of the appellant and the circumstances in which they had been committed are of the utmost seriousness. The appellant was without legal representation. He was being held in solitary confinement in prison. He claimed to be suffering a psychiatric illness. Plainly any sentence had to be of imprisonment for a long period of time and from his point of view delay in sentencing would not result in injustice to him as there was no prospect of early release from prison.

In my view, further delay was justified to enable the appellant's case to be presented by his lawyers with supporting character and psychiatric evidence if available and a further adjournment should have been granted for that purpose. The adjournment need not have been for a lengthy period, but sufficient for an application to be made for the injunction to be varied or perhaps for legal aid.

The consequence of refusing a further adjournment is that the learned Sentencing Judge was deprived of the type of evidence and information which has been placed before us upon this appeal.

What then is the significance of this matter on appeal? The evidence and information which have been placed before us is of the same nature as could have been placed before the learned Sentencing Judge but is more extensive. We have been obliged to sentence afresh for a reason which I mention shortly. All of this evidence and information has been considered by us and consequently the appellant has not suffered any detriment and the refusal of a further adjournment is of no practical significance.

The sixth ground of appeal is that the head sentence and the non-parole period are manifestly excessive.

The head sentence is undoubtedly severe. It is at the top end of the range of sentences for serious crimes of this nature. However, as I have said, these crimes are in the worst category of offences of their kind and the appellant had to be punished accordingly.

The learned Sentencing Judge concluded that if she adopted a mathematical approach with respect to each offence she would have rapidly reached a sentence in excess of imprisonment for 30 years. That observation is undoubtedly true. The crimes committed against each of the victims required sentences of substantial terms of imprisonment.

Later in these reasons I address matters relating to the sentence which should be imposed. When they are considered and given appropriate weight, it cannot be said that the head sentence is manifestly excessive. Given that the non-parole period must reflect general deterrence and the punitive and protective purposes of punishment as well as any matters favourable to the appellant, a lengthy non-parole period is required and a non-parole period of 18 years is well within the proper exercise of the sentencing discretion.

88. I now turn to the matters which have arisen since the sentence was imposed.

89. The first matter is raised by the seventh ground of appeal which was added by leave granted by Gray J on 8th March 2002. The ground is that the sentence, both as to the head sentence and the non-parole period, should be set aside and the appellant be re-sentenced because the verdict of guilty of unlawful sexual intercourse with a person under the age of 12 years in relation to anal intercourse with D charged in count 15 on the Information was set aside on the appeal against conviction and a verdict of guilty of the alternative charge of indecent assault was entered. The maximum penalty for unlawful sexual intercourse with a person under the age of 12 years is imprisonment for life: s 49 of the Criminal Law Consolidation Act. The maximum penalty for indecent assault is eight years: s 56 of that Act. The reason for setting aside the verdict was that the evidence was not capable of proving beyond reasonable doubt that D was under the age of 12 years when the incident occurred. Clearly, the jury was satisfied beyond reasonable doubt that anal sexual intercourse occurred because of the verdict which they gave.

90. Obviously the learned Sentencing Judge sentenced on the basis of an offence the maximum penalty for which was life imprisonment and not eight years and that basis is no longer appropriate. Section 354 of the Criminal Law Consolidation Act 1935 empowers the Court on appeal to impose a fresh sentence on the charge which the Court considers that the appellant should be convicted. In RH McL v The Queen [2000] HCA 46; (2000) 203 CLR 452 McHugh, Gummow and Hayne JJ at 469, held that the power is to sentence de novo and is not merely a power to review the adequacy of the sentence: see also R v AB (No 2) [2000] NSWCCA 467; (2000) 117 ACrimR 473. In my view this is the position when only one verdict is set aside and a sentence for a number of offences is imposed pursuant to s 18A of the Sentencing Act. The sentence must be considered afresh, however it does not follow that the appeal must be allowed and a lesser sentence imposed. However, I have taken the view that upon re-sentencing a higher sentence should not be imposed even if we were minded to do so, as this is not a prosecution appeal.

91. The second matter is that the Court upon sentencing afresh must have regard to the circumstances of the appellant, including those circumstances which have occurred since he was sentenced. In R v Smith (1987) 44 SASR 587, King CJ, with whom the other members of the Court agreed, accepted that evidence as to events after sentencing may be received to show the extent and implications of the state of health of the offender when he was sentenced. In part that is the situation in the present case as some of the evidence assists in determining the state of health of the appellant at the time he was sentenced and the effect of the harsh regime of solitary confinement upon him. However, there is another reason to consider the circumstances of the appellant since he was sentenced and that is because he is being sentenced afresh. As King CJ observed in Smith at 589, "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender".

92. Evidence placed before us related to the state of health of the appellant at the time of sentencing and when the appeal against sentence was heard, his character and the conditions in which he lives in prison.

93. In an affidavit sworn by the appellant, he deposed to the considerable distress caused to him and his mother by the extensive media attention to him and the case. He said that he regularly attended church but had to desist because of intrusion by the media. The attention from them and members of the public, which included abuse and the killing of pets, caused him to leave his house and acquire a small cottage in a country town. He said that he became ill.

94. Since being convicted he has been kept in maximum security in G Division at Yatala Prison. He described in detail the way in which he has been treated. He has opted to remain in G Division for his personal protection. He says that he receives threats from other prisoners. The facilities in his cell are designed to minimise the risk of self harm. The evidence as to the circumstances of the appellant, a description of his cell and his life in G Division is summarised in the reasons for judgment of Gray J and I need not repeat them. I merely add that the appellant makes no criticism of the prison officers who supervise him or of the prison authorities. Undoubtedly the appellant has to endure very harsh conditions in prison. The reasons seem to be that his former occupation as a magistrate and the nature of his crimes are likely to attract severe violence to him by other prisoners. The appellant says that he is acknowledged to be a magistrate who imposed stern penalties and that prisoners at the Yatala Prison, or some of their friends, probably were dealt with by him at some time. The Chief Executive Officer of the Department of Correctional Services, Mr Paget, gave evidence at the hearing of the appeal and accepted that proposition. The appellant says that he has developed a stress-related skin rash and his depression has increased due to his circumstances in prison. He has developed a bowel condition and suffers chest pains, insomnia and loss of memory.

95. The appellant also deposed to his service to the community over many years in a football club, a students association, life saving, the Royal Society for Prevention of Cruelty to Animals, an historical society and his Church. I need not repeat his evidence about these matters in any detail. I accept that the appellant was an enthusiastic and valuable contributor to the activities of those bodies.

96. In January 2000 before the trial, and before he was in custody, the appellant was seen by Dr Fugler, a forensic psychologist. At that time the appellant had concerns about the lifting of the order suppressing his name from publication and, I expect, his legal advisers wanted to be sure that he was capable of giving instructions. Dr Fugler made the diagnosis that the appellant was suffering depression, an Adjustment Disorder with mixed anxiety and depressed mood. He found that he was suffering a high level of stress which had impacted on concentration, memory skills and the ability to fully attend to the legal matters in which he was involved. However, he was capable of giving instructions.

97. In February and May 2002, after the trial and sentence, the appellant was seen by Dr Raeside, who is a forensic psychiatrist with considerable experience in the prison system and of examining prisoners in G Division. He found that the appellant was suffering considerably in G Division. He was experiencing hyper-responsivity to external stimuli, such as the inability to tolerate certain smells and sounds which were probably not abnormal, difficulties with thinking, concentration and memory and severe anxiety and agitation. Dr Raeside expressed the opinion that the appellant is at some risk of developing confusional psychosis with severe agitation and paranoia. Prolonged solitary confinement, threats and abuse from other prisoners and real fears about his safety are likely to hasten and aggravate his psychological difficulties. He is experiencing doubt and uncertainty resulting in a loss of self confidence and self esteem and there is a likelihood that his cognitive functioning is likely to decline further and the appellant is at risk of severe depression and psychotic breakdown. He is not, at present, suicidal.

98. Dr Raeside also expressed the opinion that the life expectancy of the appellant may be considerably shortened with prolonged incarceration in the harsh environment of G Division. He said that the appellant will obviously experience hardship in prison, but being kept in G Division multiplies the impact of imprisonment.

99. Mr Smith, an Ordained Minister employed by the Salvation Army, has visited the appellant since he has been in prison. In a statement placed before us, he states that the appellant has deteriorated over the time he has been in prison as he does not appear to be as alert, has no interest in the outside world and does not exercise. His physical appearance has changed and he appears to have aged. A statement of another member of the clergy, who does not want to be named so as not to compromise his relationship with other prisoners whom he assists, was also placed before us. He also described the harsh regime in G Division.

100. Statements by various persons were also placed before us relating to the past character of the appellant. They speak of his good character, genuineness and sincerity. One of them is a retired magistrate who was the Supervising Magistrate of various magistrates, including the appellant. He states that the appellant was dedicated to his work as a magistrate, meticulous, generous in his assistance to Justices of the Peace and a contributor to the community. He undertook a large workload and was a good magistrate. A similar testimonial to his work as a magistrate was made by a sheriff's officer at the Magistrates Court at Elizabeth who also described him as a dedicated and honourable person. A former police officer who worked as a police prosecutor provided a statement to much the same effect.

101. Calculations made by an actuary establish the net loss of earnings after income taxation sustained by the appellant by reason of his early retirement are $208,240 as to the past and $557,500 as to the future, using a discount rate of three percent and a retiring age of 65 years. These calculations are made on the assumption that the appellant would have continued in full time work as a Magistrate, the future loss is calculated at the salary of a magistrate as at 31st May 2002 and the appellant would not have access to any part of the entitlement before retirement. It was estimated that by not continuing to work until age 65 years, he had lost about $490,000 in superannuation benefits.

I accept that the appellant has sustained substantial losses by his early retirement and that he would have lost his position as a magistrate upon his having been convicted of the offences had he not retired. In cases of serious criminal offending, financial losses of this nature can have limited impact in the sentencing process. It would be an error in principle that offenders without financial losses must serve longer sentences of imprisonment than wealthy offenders who commit the same crimes and suffer financial losses. In the present context these losses are of virtually no significance in view of the seriousness of the crimes, the circumstances in which they were committed and the need to impose a sentence which reflects adequate punishment, protection of the community and general and personal deterrence.

I next consider the significance of the evidence as to the health of the appellant. It appears that the appellant was in good health before he was informed of the allegations of sexual abuse. Thereafter he suffered psychologically, according to Dr Fugler. I do not regard that matter as of significance as I expect most offenders of otherwise good character and of standing in the community would suffer psychologically upon being accused and charged. It is likely that the level of stress and anxiety suffered by most offenders would increase as the trial commenced and proceeded.

The submissions as to evidence of Dr Raeside and Mr Paget and the other evidence as to the harsh conditions in G Division and the mental and physical health of the appellant may be considered together.

I accept this evidence and the submission that the appellant is suffering in prison and will continue to suffer with further deterioration in his health if he remains in G Division for a substantial period in the future. The conditions are necessarily harsh and extremely restrictive because of the need to protect the appellant from other prisoners and, perhaps, himself. He has chosen not to move out into the general prison because of fear for his safety which he regards as very real. As long as he maintains that view, he must be kept in protective custody which, at least at this stage, involves solitary confinement. I accept that he has very little quality of life and that his present circumstances will continue for some time.

I refer to some features of the evidence of Mr Paget. He said that at the present G Division was the only suitable place to keep the appellant but consideration was being given to other possibilities as G Division is unsuitable for long term incarceration of any prisoner. These possibilities include placement interstate or development of long-term management cells at a country prison if feasible and funding is available. Such a facility would not only provide protection but some degree of quality of life. Also, he said it is possible that given time the risk to the appellant may abate. He said that he could not say where the appellant would be kept in three, five or ten years time.

Mr Paget acknowledged that the appellant was at risk of harm because regardless of the security measures put in place, it is difficult to foresee who may perpetrate an act of violence. He regards the appellant as someone who will always require some type of protection. Also, he said that his Department would be trying to ensure that the regime of isolation of the appellant did not continue over a long period of time.

There is another matter which I regard as significant. The criminal justice process, so far as the appellant is concerned, has not yet been completed. The appellant sought leave to appeal to the High Court against his conviction which was refused and his appeal against sentence is now being resolved in this Court. It would be surprising if long term and possibly expensive initiatives were undertaken for the future care of the appellant before the judicial process had been completed.

The matter in issue is whether an otherwise just sentence should be reduced because of the health of the offender or the harsh conditions to be endured in prison.

A convenient starting point in the consideration of this issue is the observation of King CJ in Smith at 589:

"How far should the new information about the appellant's health affect the matter? The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

There, of course, the Court was concerned with ill health of the offender not caused by serving the sentence: see also R v Bailey (1988) 35 ACrimR 458. It is to be expected that in some cases a pre-existing condition of an offender, such as claustrophobia or quadriplegia may justify a reduction in sentence because such a condition may mean that the offender would suffer added hardship in prison. There are many cases where pre-existing conditions of physical, psychological or mental ill health have been taken into account.

The significance of claustrophobia was considered in R v De Vroome (1988) 38 ACrimR 146. The respondent was sentenced to imprisonment for five years for offences of unlawful sexual intercourse with a person under the age of 12 years and attempted unlawful sexual intercourse with his eight year old stepson. The sentence was suspended on the ground that the appellant's condition would cause an even worse punishment than for most people. In allowing an appeal by the Attorney-General, King CJ said at 147-148:

"An offender's psychological or medical condition which would render imprisonment a greater hardship to him than to another person, is a relevant consideration in determining the length of a term of imprisonment and whether it should be suspended. Nevertheless an offender cannot be allowed to escape punishment for serious crime simply because he possesses a claustrophobic temperament. It is the responsibility of the Correctional Services system to manage prisoners in a way which minimises any harm to them which might result from abnormal psychological or medical conditions. The courts can make some adjustment to sentences to take account of the additional hardship caused to an offender by his condition, but they are necessarily limited in the extent of such adjustment by the necessity of maintaining proper standards of punishment.

I think that the respondent's condition of claustrophobia falls far short of being an adequate reason for suspending the sentences for such grave crimes. Those crimes clearly call for severe punishment in order to mark the gravity of the crimes and to provide the necessary degree of deterrence to this offender against future offending and of deterrence to persons with similar opportunistic and evil inclinations. In my opinion there was no sufficient reason for suspending the sentences and the appeal should be allowed."

He went on to say that any additional hardship to the respondent of a term of imprisonment by reason of his psychological condition is to be taken into account in assessing the length of the sentence.

Also it is accepted that a sentence may be reduced because an offender has provided evidence to the authorities about other offenders and perhaps has given evidence against them which may also result in added hardship in prison: see The Queen v Golding (1980) 24 SASR 161; R v Davies & Gorman (1978) 68 CrAppR 319.

In these cases the allowance for the harsh conditions to be endured by the offender has arisen because of circumstances unrelated to the nature of the offending, the status of the offender in the community or his or her particular occupation. In my view, a sentence should not be reduced because the crime was committed by a member of the judiciary. Usually that would be a matter of aggravation and should not operate in any way as a matter of mitigation. Furthermore, a sentence should not be reduced because the crime is so odious that life in prison must be in a protected environment. As was observed by King CJ in Smith and De Vroome in the passages cited, it is the responsibility of the Correctional Services authorities to provide appropriate care which must include a safe environment with some quality of life.

I do not regard an observation of Kirby J in Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295 as contrary to the view which I have expressed. He said at 316:

"Consideration must also be given to circumstances which may increase the impact of the sentence imposed upon the prisoner. Thus, it is relevant to consider the age of the offender, whether the offender may have to be kept in protection (AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 151-152) and whether the offender suffers from an illness or other condition which may render the punishment especially severe in his or her case (R v Smith (1987) 44 SASR 587 at 589; R v McDonald (1988) 38 ACrimR 470)."

In that passage of his judgment, Kirby J referred to his own judgment in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 152 where he said that it had long been recognised in England (R v Lowe (1977) 66 CrAppR 122 at 126 and R v Davies & Gorman (1978) 68 CrAppR 319 and in Australia (R v Cartwright (1989) 17 NSWLR 243 at 253 that every year in protective custody is equivalent to a significantly longer term under the ordinary conditions of prison. In each of these cases the offenders were informers who had provided assistance to the police and would have to be kept in protective custody for that reason. In that context the principle stated by Kirby J in Inge and AB is well accepted.

In AB the offender was a former member of a religious teaching order and pleaded guilty to 67 offences of a sexual character against 15 boys and girls at schools where he was a teacher. He was sentenced to 18 years' imprisonment with a minimum term of 13½ years. It was held by the majority, Gummow, Kirby and Callinan JJ that the sentencing judge's discretion had miscarried because he did not have regard to the fact that the trouble and expense of a long trial and further extradition proceedings had been avoided or to the desirability and public interest in encouraging full revelation of all criminality by offenders. The offender had fled to the United States and was extradited to Australia but did not raise an objection under extradition law which was available to him. The sentence was set aside and the matter was remitted to the Court of Criminal Appeal in New South Wales to impose sentence. None of the other members of the Court, McHugh and Hayne JJ who dissented, or Gummow and Callinan JJ who, with Kirby J comprised the majority, referred to time to be served in protective custody.

The Court of Criminal Appeal, New South Wales, reconsidered the sentence in R v AB (No 2) [2000] NSWCCA 467; (2000) 117 ACrimR 473. Barr J, with whom Spigelman CJ agreed, noted the danger that the offender would face in prison, that he would have to be kept away from the ordinary prison population and that his movements would be restricted. He acknowledged that the offender is entitled to additional consideration because he will find his sentence harder to serve than would otherwise be the case: 495. He included that consideration along with the consideration for other matters such as the plea of guilty and the attitude to extradition in the 25 per cent discount which he allowed. He did not specify what proportion of the discount he applied for the hardship ground. O'Keefe J, who was in the minority, referred to cases where sentences were reduced for informers or others who had co-operated with the authorities and went on to say at 479:

"In the light of these decisions the appellant is entitled, in addition to other discounts that may be applicable and appropriate, to a further discount on the basis of his co-operation with the authorities in revealing offences which would not otherwise have come to notice and because of the circumstances of his incarceration. As Kirby J indicated this last mentioned matter is one which might not have been given as much weight as it deserved, suggesting that of itself it calls for some real and measurable weight to be given to it."

"There is then the further factor identified by Kirby J and dealt with both in the English and Australian cases, namely the character of the incarceration of the appellant because of the problems he is likely to encounter within the prison system. Whether the prisoner be an informer, or a sexual offender against young children, is not to the point. The end situation is the same for each category. Each category of prisoner requires special circumstances of imprisonment. The offenders have to be isolated, kept in circumstances of virtual solitary confinement. If the offenders are not so kept (and perhaps even if they are) they will be subjected to threats against their lives, with consequent fear that such threats will be implemented. That fear will not of necessity be removed entirely by special circumstances of imprisonment. This is a factor for which, in accordance with the authorities referred to above and the reasons of the majority of the High Court which this Court is directed to apply, an additional discount should be made."

I regret that I am unable to accept the proposition that the reason for the harsh conditions in custody is not to the point. Informers and others who co-operate with the police usually provide benefits to the community in that offenders may be brought to justice and is often, although not always, cogent evidence of remorse and contrition. However, there are no such benefits to society in the circumstances of cases such as the present case.

We were also referred to the earlier case of R v Everett (1994) 73 ACrimR 550 where the Court of Criminal Appeal in Western Australia was concerned with a prosecution appeal against a total sentence of, in effect, 17 years imposed upon an offender who had committed 25 offences, including deprivation of liberty, armed robbery and attempt to pervert the course of justice. He was kept in a special handling unit in prison. All members of the Court concurred in allowing the appeal and increasing the sentence of imprisonment to 20 years. Pidgeon J, with whom Kennedy J agreed, said at 562:

"The sentencing judge did not discount the sentence by reason of the more restricted form of imprisonment to which it is anticipated the respondent will be subject. I consider, on the facts of this case, his Honour was correct as it would appear to me to be likely that the nature of some of the respondent's offences would have contributed to the decision as to the special restrictions on imprisonment. Furthermore, it is not known for how long the prison authorities will so treat the respondent. This is a matter for the authorities in the performance of their normal responsibilities."

".......... in my view, it is relevant to the sentencing process that an offender is, unusually, being kept (and is likely to be kept) in strict security imprisonment. Where this is raised as an issue, the court, in my view, is required to hear all relevant evidence in regard thereto, and if unusually harsh terms of imprisonment are to be imposed upon the prisoner that should be taken into account.

Counsel for the respondent informed us that the respondent had been told by prison authorities that he was going to be kept in the special handling unit for at least 'most' of his sentence. This was not disputed by senior counsel for the respondent and should therefore be accepted. In my view, the nature of the imprisonment which the respondent will have to endure constitutes unusual hardship. This conclusion implies no criticism of the prison authorities for the regime they have imposed on the respondent. There is nothing to suggest that it is not justified, but in my view, it is relevant to the term of imprisonment to be imposed."

Like the appellant in the present case, the offender in Everett was kept in the special unit because of his own conduct which included the possibility of escape. That is not an issue in the present case, but the point to be made is that the need for the solitary confinement was due to the conduct or apprehended conduct of the offender. With respect to Ipp J, I can see no reason to reduce a sentence on that account and I respectfully agree with the conclusion of Kennedy and Pidgeon JJ.

I think there is an analogy with cases involving serious crime by foreign nationals who must serve long sentences of imprisonment. In R v Ferrer-Esis (1991) 55 ACrimR 231, the Court of Criminal Appeal, New South Wales, considered a prosecution appeal against a sentence of imprisonment for six years imposed for possessing without reasonable excuse cocaine in excess of the trafficable quantity which had been imported into Australia. The respondent was born and lived in Venezuela. Hunt J, with whom Gleeson CJ and Lee CJ at CL agreed, said at 239:

"There were a number of subjective facts which the judge took into account. The respondent is incarcerated in a foreign country, living amidst a foreign language and a foreign culture. He is isolated from any outside contact. However, with all due respect to views to the contrary which may have been expressed by others, I do not consider that very much weight should be given to that particular circumstance.

The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here (as did the respondent) has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact. The respondent has nevertheless responded well in custody, and favourable reports were tendered as to his attendance at English classes and as to his rapport with his fellow prisoners and with prison officers.

It is indeed a tragic thing that a man of the respondent's background should knowingly have placed himself in this position for what appears to have been simple greed, and perhaps not very great greed at that. But subjective features such as those can have little impact in the face of the need for the courts of this country to make it clear to others who are like minded that they will suffer severe punishment if they commit similar offences. Such subjective matters are in any event, in the circumstances of this case, more appropriate to take into account in relation to the non-parole period to be fixed."

The same approach was taken in R v Heryadi (1998) 98 ACrimR 578 by the Court of Criminal Appeal, Western Australia, in relation to an Indonesian businessman who imported a prohibited drug into this country. Ipp J, with whom Malcolm CJ and Kennedy J agreed, adopted the remarks of Hunt J in Ferrer-Esis and went on to say at 584:

"The applicant made a deliberate choice to participate in the criminal distribution of drugs, a trade known universally as being the cause of great harm and misery. He was unwilling to distribute drugs in his own country. He chose to do so in Australia, a country in which he had no ties, in which he was a stranger, in which he assumed no civic responsibility. He was content to drop off his parcel of drugs here, in the belief that the citizens of this country would suffer the consequences of his criminal acts while he had returned to Indonesia. In the circumstances, I do not regard his imprisonment in Australia as having any material mitigatory weight."

In R v Giri & Karki [1999] NSWSC 1269; (1999) 109 ACrimR 499, the offenders were Nepalese nationals studying in Australia. They were found guilty of murder. Studdert J considered the additional hardship which they would suffer in prison in a foreign country. He distinguished Ferrer-Esis because neither of the offenders came to this country for the purpose of committing a crime and he took into account the added difficulty they would suffer in prison.

I mention the decision in this Court in R v Gooley (1996) 66 SASR 380. The appellant, aged 23 years, pleaded guilty to a charge of unlawful sexual intercourse with a young girl aged 14 years during the course of a party in a private home at a time when she was either asleep or unconscious due to the effects of alcohol. He was badly beaten by persons connected with the victim the morning after the offence was committed. Later he was beaten by other prisoners whilst in custody and it was accepted that he would have to spend the term of his sentence of imprisonment for 30 months in protective custody. Doyle CJ, with whom Williams J agreed, discussed the violence towards the appellant and the likely future of the appellant whilst in prison. He said at 382-383:

"I do not consider that ordinarily an illegal act of other people can affect the punishment which an offender must receive. The law must do what it can to protect the appellant, as must prison authorities.

The conduct of the victim's friends or family cannot reduce the appropriate sentence, in my opinion. To allow it to do so would be to allow private revenge or punishment to replace punishment by the State. In my opinion, tribal punishment of Aborigines is in a different category.

But I am prepared to make a small allowance despite this on the basis that the sentence which the appellant serves will be served under circumstances in which he will be at risk of harm and under special restrictions necessary to provide him with adequate protection. It is not possible to quantify with any precision the allowance which I make, but it is a small one."

Millhouse J, the other member of the Court, did not mention this matter.

It does not appear that the Court in Gooley had the advantage of full argument on this matter as there is no reference to authority or to the implications generally in the sentencing process of reducing a sentence because of the additional privation and burden which an offender will suffer in protective custody where the need for that type of incarceration is due to the nature of the crime which the offender has committed.

There is a degree of similarity between the appellant in this case and a circumstance of the offenders in Ferrer-Esis and Heryadi. The appellant was a former prosecutor in the Crown Prosecutor's Office and a magistrate. He was well aware of the type of sentence which would be imposed upon him if his offending was detected and proved. Also, he would have known of the public opprobrium which his offending would attract and of the attitude of prisoners towards him because of the nature of his offending and his having been a magistrate. Nevertheless he committed these very serious offences. This is a matter of considerable importance and enables the decision in Gooley to be distinguished. For these reasons I would not reduce the sentence because of the harsh circumstances in which the appellant finds himself in prison. It cannot be the case that the whiter the collar of the offender or the greater the revulsion at the crime, the lower the sentence.

It does not appear to me that Doyle CJ or Williams J intended to establish some sentencing principle about this matter in Gooley. I have expressed my view about the matter, but if I am wrong in the approach I have taken and the Court of Criminal Appeal in Gooley did accept that because unusual and harsh circumstances will be suffered by an offender whilst serving the sentence, some allowance may be made in favour of the appellant, it does not follow that such an allowance must be made in every case. That is not what the Court said in Gooley. The small allowance was made in the circumstances of that case, which included the nature of the offence, that it was an isolated and impulsive act committed under the influence of alcohol by a relatively young man and the need for protection of the public and deterrence was not as significant as in the present case. I would not make any allowance for that reason. Furthermore, I accept that the Corrections authorities are considering establishing another facility in which to accommodate the appellant which will be less restrictive and provide some quality of life.

I do not make a specific allowance for the state of health of the appellant or the loss of his former position of respectability in the community and as a magistrate. They are consequences of his offending and are not the type of circumstances which warrant any reduction.

The sentence which is to be imposed must be severe. It must reflect the abhorrence of the community of this type of sexual crime and the obvious need to protect young children in our society. It must ensure that there is adequate punishment and both general and personal deterrence. The appellant has shown no remorse or contrition. He continues to deny the offences. As I have said, the evidence does not establish rehabilitation. It does not indicate that upon release the appellant would not re-offend.

At the time the offences were committed, the appellant was a magistrate and, as such, a respected member of the community entrusted with upholding, and obviously observing, the law. He used that position to gain the trust and confidence of the parents of the boys whom he abused. He used his position as a coach in the life saving club as a means of gaining access to the boys. He used this trust and confidence in him in order to take the boys away from the care of their parents so that, I think it is fair to say, he could abuse them. It is also a matter of aggravation that he used the courthouse for his criminal activity. He used his official letterhead as part of gaining the trust and confidence of the parents. He used his position to speak at the schools where he recruited young boys to the life saving club, one of whom he subsequently abused. He abused the boys when they were away from their parents and under his immediate care. He encouraged, and participated in, sexual games with the boys at an age when they had no understanding of the nature and significance of such conduct. As may be seen from the victim impact statements he caused great harm to the victims. Since their contact with the appellant, they have all lived troubled and unsettled lives.

W asserted that his life had been ruined. He was sexually disoriented when a young teenager, had difficulty at school, became addicted to drugs including heroin and turned to crime to service his habit and was imprisoned. I accept that the evidence does not permit a finding that the appellant caused all of these problems, however it is probable that his sexual abuse of W contributed to them. The offences against W occurred over a long period of some years. The appellant was convicted of two counts of indecent assault against W and two counts of unlawful sexual intercourse with a child under 12 years being anal intercourse. If he was to be sentenced for no other crimes, the sentence for his offending against W, in all the circumstances, would be for no less than eight years and probably more.

The offences against Y occurred on only one occasion and are particularly serious. Y was aged about 8 years at the time. He was forced to perform fellatio upon the appellant in a cell at the Glenelg Police Station and the appellant then had anal sexual intercourse with him against his will. Y believed he was locked in the cell and was extremely distressed and crying throughout the incidents. Those crimes have had a serious consequence to Y. He was sexually confused in his younger years. He became violent to others and has feelings of being unclean. He stated that the offending changed his life and he lost his childhood. He has been diagnosed as suffering post traumatic stress disorder in consequence of the offences. Those crimes standing alone would require a sentence of imprisonment of in excess of twelve years.

The appellant was found guilty of unlawful sexual intercourse with R, who was aged 8 or 9 years, at the Glenelg Courthouse by performing an act of fellatio upon him. This offence was committed against the background of other sexual offences committed against R. In his victim impact statement he says that the offending had considerable effect upon him, including a desire for revenge, embarrassment, shame and guilt. He found giving evidence at the trial extremely difficult and it re-opened his feelings about the offences. This offence, standing apart from the offences against the other boys, would require imprisonment for at least eight years.

The offending against D was also particularly serious. Even though it could not be proved that the acts of sexual intercourse charged against the appellant occurred when D was under the age of 12 years, the verdicts of the jury establish that they were satisfied beyond reasonable doubt that sexual intercourse as alleged occurred. That conduct committed against a boy of about 12 or 13 years of age is within the worst type of indecent assault and, in all the circumstances, would require a sentence of imprisonment near the maximum which, as I have mentioned, is imprisonment for eight years. In his victim impact statement, D said that after his relationship with the appellant which had continued for some years, he had lived in embarrassment and shame. He said that the case had brought his family together but he was still working through sad and confusing feelings.

I now turn to the offence of offering a benefit to a witness. The appellant gave $5,000 to D as an inducement to withhold or give false evidence. The maximum penalty for this offence is imprisonment for seven years. The conduct of the appellant also puts this offence in the worst type of offence of its kind. The appellant was a serving magistrate at the time. He committed the offence to obtain a benefit for himself, namely that D would not implicate him in the crimes against him and others. His conduct was calculated to frustrate the criminal justice process and, given all the circumstances, was contrary to the public interest in a most significant way. If the appellant was to be punished separately for this crime, the sentence would have to be in excess of four years.

If the approach of individual sentences with respect to the crimes against each victim, and to be served cumulatively, was adopted, the result would be a sentence in the order of 36 years which would offend the totality principle. It is appropriate to impose one sentence pursuant to s 18A of the Sentencing Act which was the approach taken by the learned Sentencing Judge.

What then of the role of mercy in the exercise of the sentencing discretion? The principle is stated in the well known observations of Napier CJ in Webb v O'Sullivan [1952] SASR 65 at 66:

"The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest."

In R v Osenkowski (1982) 30 SASR 212, King CJ said at 212-213:

"There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."

There are many other cases in which these observations, or similar, have been followed and considered.

It is with considerable reluctance that I must say that I do not find anything in the circumstances of the offences, or of the appellant, which excites sympathy. Any person with a modicum of humanity would be sympathetic to the appellant in his current circumstances, because he has ruined his life by serious criminal offending and now finds himself in the most demeaning circumstances, including almost total lack of privacy and, for him, humiliation with advancing ill health. But mercy, in the sense of a reduction in sentence not authorised by the law, cannot be extended for those reasons.

Having considered all of the matters which have been discussed, I would impose the same sentence as that imposed by the learned Sentencing Judge, namely imprisonment for 25 years. I appreciate that this sentence is near the top end of the range which may justly be imposed for these offences, but I do not think any lesser sentence would meet the justice of the case.

We were asked to consider fixing a relatively short non-parole period so that the appellant could serve his sentence whilst on parole in circumstances akin to home detention in order to alleviate some of the suffering which he presently endures. I doubt that such a sentence is permissible. Under the present sentencing regime, the appellant would not be entitled to automatic release on parole at the end of the non-parole period and the courts cannot, and should not, dictate to the Parole Board the conditions upon which an offender is to be released.

It was further submitted that the Parole Board will be in a much better position than the Court to evaluate the circumstances of the appellant at the completion of the non-parole period in order to decide whether the appellant should be released on parole because we cannot look accurately a long way in the future: see The Queen v Shrestha [1991] HCA 26; (1990-1991) 173 CLR 48 per Deane, Dawson and Toohey at 68. Whilst that observation is obviously true, the purpose of the non-parole period cannot be overlooked. As King CJ said in R v Stewart (1984) 35 SASR 477 at 477, the first question is:

"...... what is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventative purposes of punishment."

He went on to say that the time which a person must spend in prison must be proportionate to the gravity of the crime.

I do not regard that observation as in any way contrary to the approach of Deane, Dawson and Toohey JJ in Shrestha. They said at 68:

"......... it is a central aspect of the working of parole systems in this country that the function performed by the sentencing judge in relation to parole is to determine whether it is appropriate or inappropriate that the convicted person be eligible to be considered by the parole authority for release on parole at some future time."

In all the circumstances I do not think that a non-parole period of less than 18 years would satisfy "the punitive, deterrent and preventative purposes of punishment".

I would impose the same non-parole period as the learned Sentencing Judge, namely 18 years.

In consequence I have reached the same conclusion as the learned Sentencing Judge despite the setting aside of the verdict on Count 15. I do not regard that matter, in all the circumstances, as justifying a lesser sentence.

It is the sentence of the learned Sentencing Judge which is the subject of this appeal. Although for the reasons I have given, the appellant must be sentenced afresh, as the sentence and non-parole period which I would impose is the same as was imposed, I do not think it is necessary, as a matter of form, to set aside the sentence and impose a sentence which is the same. It is sufficient to dismiss the appeal. I would make that order.

WILLIAMS J In my opinion the appellant should have been granted the adjournment which he requested to obtain legal assistance with respect to sentencing submissions. The appellant should now be resentenced upon the footing that the sentencing process miscarried (see Small (1994) 72 A Crim R 462 at 471-474). The absence of legal representation occurred through no fault of the appellant who was embarrassed by a Mareva injunction with respect to his assets. In these circumstances the sentence should be considered de novo. This Court is also required to reconsider the sentence by virtue of our decision on 31 January 2002 to substitute an alternative verdict of indecent assault in place of the guilty verdict which the jury returned on count 15.

The appellant adduced evidence as to the severe conditions of his prison service. (Gray J has described these in his reasons). For his own safety Liddy has been kept in isolation since his conviction on 5 June 2001. He is reviled by even the few prisoners with whom he has had some indirect contact in the high security G division of Yatala Labour Prison.

The conditions of the appellant's incarceration are partly attributable to the anticipated reaction within the prison to the nature of his horrible crimes but the need for protective custody also arises out of the nature of his former employment as a long serving magistrate where he gained a reputation for severity.

In my opinion a paedophile is not entitled to any reduction in sentence by reason of the attitude of other prisoners to this type of crime. However, there comes an extreme point where the hardship of protective custody made necessary by resentment amongst prisoners as to an offender's previous occupation may properly attract some discount to lessen the impact of undeserved punishment associated with solitary confinement without normal privileges. The difficulty in the present case is that Liddy took advantage of his office to commit these infamous crimes. He must expect to suffer particular shame as a disgraced magistrate but gaol inmates with long memories cannot be allowed to settle old scores. The need for Liddy's solitary confinement is partly attributable to the grudge which many within the prison system may be expected to bear against him as a magistrate by reason of the experiences of themselves and their friends at his hands. Therefore, I consider that the conditions which he is enduring does warrant some reduction in sentence insofar as the extraordinary need for his confinement in isolation arises from a justifiable fear of reprisals unconnected with Liddy's crimes. The exercise of power to reduce sentence by reason of especially arduous conditions of prison service was canvassed by the Chief Justice in R v Gooley (1996) 66 SASR 380 at 382-3; I concurred in that judgment. In the present case Liddy is so fearful of revenge that he chooses not even to emerge from his cell for routine weekly respite or to seek dental treatment. The Director of Correctional Services has given evidence as to his accommodation plans for the appellant; the present arrangements will not continue indefinitely but they represent the best specialised care which in the medium term is available in South Australia to deal with this unusual situation.

A shift in sentencing standards can be identified in R v D [1997] SASC 6350; (1997) 69 SASR 413 and applied in R v AJW (2001) 80 SASR 246. These cases were relied upon by the sentencing judge. In my view these decisions should not be applied in this instance. In discussing sentencing standards to be applied to sexual offending against young children by a person in a position of trust and authority the Chief Justice (in D's case at 423) expressed the view that "sentences should be increased for persons who commit such offences in the future". In my opinion the higher standard thereafter adopted in AJW is therefore inappropriate when dealing with offending in 1985 or thereabouts. The more recent offence of offering of a benefit to a witness deserves to be distinguished in the sentencing process and dealt with separately; the bribe given by the appellant in 1999 to one of his victims shows the lengths to which Liddy was prepared to go in an attempt to cover up his earlier sexual offending.

I have read in draft the reasons of Mullighan J. I take a different view from His Honour as to the application of Gooley and the effect of R v D. This leads me to dissent from the majority of the Court in my conclusion as to the orders which ought now to be made. However, subject to these present observations I am otherwise generally in agreement with the reasons of Mullighan J.

The sentence will reflect the need to protect the community, the deterrent effect of the sentence and the need to ensure that the appellant is adequately punished. However upon an offender's appeal against sentence the Court is constrained by s 353(5) of the Criminal Law Consolidation Act (SA) 1935 and may not increase the severity of a sentence. Therefore the question does not arise as to whether the bribery charge with its aggravating features deserves a greater penalty than originally awarded.

In this case 5 years imprisonment (as originally awarded) will be the appropriate sentence for offering a benefit to a witness; I consider that in accordance with s 18A of the Criminal Law (Sentencing) Act (SA) 1988 one penalty of 18 years imprisonment should be imposed in respect of the five counts of unlawful sexual intercourse with a person under the age of 12 and four counts of indecent assault. The two sentences should be served cumulatively - totalling 23 years imprisonment. I would fix a non-parole period of 15 years. The head sentence and the non-parole period should commence on 5 June 2001.

152. Peter Michael Liddy the appellant was found guilty by a jury of six counts of unlawful sexual intercourse with a person under the age of 12 years, three counts of indecent assault and one count of offering a benefit to a witness. On 7 September 2001 he was sentenced to 25 years imprisonment. A non parole period of 18 years was fixed[1].

153. On 31 January 2002 the appellant appealed against his convictions. That appeal was allowed for the limited purpose of setting aside the verdict of guilty on count 15 a count of unlawful sexual intercourse with a person under the age of 12 years. A verdict of guilty to the alternative charge of indecent assault was substituted.

154. The appellant was represented throughout the trial, during the appeal against convictions and on this appeal. However he was unrepresented at times during sentencing.

Section 354 of the Criminal Law Consolidation Act

155. Counsel for the appellant submitted that it was necessary for this court to re-sentence the appellant. It was said that the entire sentence had to be reconsidered because one conviction had been set aside and substituted with a verdict of guilty to an alternative and less serious charge.

156. The initial conviction on count 15 exposed the appellant to a maximum sentence of life imprisonment. The substituted conviction to the alternative charge of indecent assault exposed him to a maximum sentence of eight years imprisonment.[2] It follows that before the learned sentencing judge the appellant was exposed to a greater maximum penalty than after his successful appeal.

157. Section 354 of the Criminal Law Consolidation Act 1935 (SA) provides:

"(1) If it appears to the Full Court that an appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted.

(2) Where an appellant has been convicted of an offence and the jury could, on the information, have found him guilty of some other offence and, on the finding of the jury, it appears to the Full Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity."

158. In Ryan v The Queen[3] Brennan J addressed comparable Victorian legislation and observed:

"When an accused person is convicted on two or more counts regularly joined, the trial judge is entitled to assess an appropriate overall sentence having regard to the entire course of criminal conduct which constitutes the several elements of the offences of which the accused is convicted. If the offences are founded on the same facts, it is necessary to ensure that the appropriate penalty for the same act or omission is not imposed twice; if the offences are part of a series, the entirety of the criminal conduct of the same or similar character, rather than the several acts or omissions constituting the separate offences, may determine the appropriate overall sentence to be imposed. In pronouncing sentence, however, the trial judge imposes separate sentences in respect of the several offences of which the accused has been convicted, effecting the appropriate overall sentence by adjusting the severity of the separate sentences and, when custodial sentences are imposed, by ordering that they be served either concurrently or cumulatively.

On appeal against conviction, if the conviction upon one or more counts is quashed but the conviction upon another count or other counts stands, the sentences in respect of the quashed convictions must be set aside while the sentences in respect of the other convictions stand. The overall sentence may thus be altered, and the alteration may prove to be anomalous. Section 569(1) of the Crimes Act allows the correction of such an anomaly. It empowers the Full Court to alter the sentence when a conviction on one count in an indictment is quashed and a conviction on another count stands."

159. In R H McL v The Queen[4] the High Court reviewed and approved these remarks. McHugh, Gummow and Hayne JJ said:

"However, the power conferred by s 569(1) of the Act is a power to re-sentence the accused de novo. It is not a power merely to review the adequacy of the appellant's sentence following the quashing of convictions. Section s 569(1) declares that, where the section operates, the Court of Appeal may 'pass such sentence in substitution therefor as it thinks proper and as may be warranted in law'. If the Court of Appeal was entitled to invoke s 569(1), it was entitled to re-sentence the appellant.

The ordinary meaning of the words of s 569(1) appear to give the Court of Appeal the power to re-sentence the appellant. It had held that the appellant was 'not properly convicted on some count ... of the indictment'. That being so, the Court of Appeal was entitled to examine the remaining sentences and 'either affirm the sentence[s] passed on the appellant at the trial or pass such sentence[s] in substitution therefor as it thinks proper'. Given that the appellant does not complain that, if the Court of Appeal had power under s 569(1), it was wrong in concluding that the total remaining sentence of eight and a half years was manifestly inadequate, or that it otherwise made an error, the equality of the sentences imposed by Judge Harbison and the Court of Appeal is not itself significant. It would seem, therefore, that the course taken by the Court of Appeal was authorised by s 569(1). However, the matter is not at large.

Section 569(1) of the Act gives the Court of Appeal the power, on its own motion, to increase sentences in cases where some convictions are quashed but other convictions on the same indictment stand. There is a clear legislative recognition that the public interest may require the remaining sentences to be increased whether or not the prosecution or, if it matters, the appellant, has appealed against those sentences. Given the apparent object of the section, the Court of Appeal must be free to impose on the appellant what it considers is the correct sentence, taking into account only those offences of which the appellant stands convicted at the time of sentencing. This is so irrespective of whether the Court of Appeal enters an acquittal or orders a new trial in respect of those charges where the convictions have been quashed. Nothing in s 569(1) indicates that the Court of Appeal must hold its hand because the appellant must face a new trial on one or more of the charges. In sentencing the appellant on the convictions that stand, the Court of Appeal is entitled to act on the basis that he is presumed innocent of the outstanding charges and to sentence him for what he has done in respect of the charges on which he stands convicted."

160. When allowing the conviction appeal with respect to count 15 the court acted under section 354(2) of the Criminal Law Consolidation Act. This section empowers the court to pass such sentence as may be warranted in law for the offence of indecent assault but not a sentence of greater severity than was originally imposed. Section 354(1) also operated on its terms in this case. The appeal court concluded that the jury must have been satisfied of facts which proved the appellant guilty of the alternative offence of indecent assault[5].

161. The setting aside of the conviction on count 15 and the substitution of the alternative verdict requires this court to reconsider the sentence imposed. The judge invoked section 18A of the Criminal Law (Sentencing) Act 1988 SA and imposed the one penalty. As a result it is necessary for this court to reconsider the entire sentence.

162. It was further submitted by counsel for the appellant that additional evidence admitted by consent established the occurrence of relevant events after the passing of sentence. This evidence outlined the strict conditions of the appellant's imprisonment. It was said to be a harsh regime. Further evidence related to the appellant's mental state. It was said to demonstrate the extent and implications of a condition which had only become evident as a result of his imprisonment.

"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

164. In Eliasen[7] Crocket J adopted the remarks in Smith:

"That case [Smith] was referred to with approval as to the principles to be found in it by the Court of Criminal Appeal (NSW) in Bailey (1988) 35 A Crim R 458. The judgment of Lee J was agreed on by the other members of the court. The headnote records Lee J's opinion that:

'It has, for a long time been the practice to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol inmate. Accordingly the court should allow evidence of the appellant's medical condition to be given on appeal and should re-open the matter of sentence.'

I interpolate to say that it is my understanding that that proposition has long been accepted as valid by this Court and I would add that it is, of course, correct to say that once the evidence is admitted the question no longer is one as to whether the sentencing judge has erred in the exercise of his sentencing discretion. The question then which is for this Court to determine is whether on the material then before it a different and, if so, what sentence should be substituted for that passed by the sentencing judge. It is for that reason that I think this Court is relieved from the task of having to examine the various allegations made as to error on the part of the judge when selecting the sentence that he thought appropriate in the circumstances."

165. Counsel for the Crown accepted that an appeal court may have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentencing. The additional evidence in the present case requires this court to reconsider the sentence passed. This evidence must be considered together with all other relevant material.

166. It is strictly unnecessary to consider the other grounds[8] said to justify the need to reconsider the sentence imposed. However those grounds raise a number of issues of law which will necessarily need to be addressed when resentencing.

167. The appellant's offending has been described in the judgment of this court dealing with the appeal against convictions[9]. His criminal conduct was undoubtedly grave.

168. The appellant engaged in serious and repeated offending against children during the early to mid 1980's. He subjected five young boys to sexual abuse. They were aged between eight and 13 years. The nature of his conduct ranged from indecent assault and procuring an act of gross indecency to unlawful sexual intercourse involving both fellatio and anal penetration. Allegations against the appellant did not arise for many years. The appellant also offered money to one complainant as an inducement to withhold or give false evidence at proceedings in which he may have been required as a witness.[10]

169. The appellant's conduct was aggravated by the fact that he used his position as a surf lifesaving coach to gain the trust of the complainants. Many of the offences were associated with surf lifesaving and recreational activities instigated by the appellant. The conduct did not appear to the complainants to be unusual or wrong as it was disguised with enticing, exciting and adventurous activities, away from other adults. The activities were appealing to boys of the complainant's age. The appellant developed a scheme and system. This included transporting the complainants in his van to and from surf lifesaving and other activities. His modus operandi was designed to have sexual discussion and activity viewed as normal by the complainants so that he could advance his criminal pursuits.

170. The appellant's conduct was further aggravated by the use of his position as a magistrate to instil respect and authority amongst the complainants. He used his office as a magistrate for recruiting purposes and to engender trust and confidence in the complainant's parents. He chose locations designed to underscore his authority and made use of court facilities. The appellant wrote to parents on court letterhead[11]. These features of his conduct provide an explanation as to why the complainants' parents trusted the appellant.

171. The gravity of the appellant's criminal conduct is illustrated by the following account given by one complainant. He was watching a movie with other boys and the appellant at the Glenelg courthouse. He remembers being frightened and needing to go to the toilet. His evidence included:

"A. I remember about the first ten feet of that hallway, walking down there.

Q. How many other boys were watching this movie.

A. About four, four, five. I remember there was a few other bodies in that room with me, it wasn't just myself.

Q. So you're walking down the corridor you say with Mr Liddy.

A. I remember a cupboard on the left-hand side, like a linen chemical sort of cupboard, not so much a cupboard that stuck out, more like a doorway, just a very small - like a linen cupboard. I don't remember actually going to the toilet.

A. I remember Mr Liddy asking if I wanted to see the cells.

Q. What happened after he asked you whether you wanted to see the cells.

A. My next memory is outside underneath the verandah of the cells. I can remember looking into the cell through a window or something in the door. I don't know if Mr Liddy lifted me up, to look inside the cell or not.

Q. Now you'd just got to the point where you said that you remember Mr Liddy asking if you wanted to see the cells, what's your next memory.

A. Entering the cells with Mr Liddy, Mr Liddy closing the door behind us.

Q. Was there more than one cell, to your memory, in that cell complex.

Q. Are you able to describe any more particularly which cell it was.

A. Mr Liddy shut the door behind us, I don't know how this has come about; Mr Liddy says 'I won't let you out unless you -' these aren't his exact words this is what stuck in my mind, probably rephrased over time. He said 'I'm not going to let you out unless you suck my dick'. I have a vivid picture of Mr Liddy's penis in my face in the centre of the cells and he grabbed the back of my head and pulled me towards him and he forced me to lick his penis.

A. I can remember doing it about twice before I was bawling my eyes out.

Q. What is your memory of when you started to cry.

A. Like looking through a wet window; everything was blurry, I wasn't comfortable, I was fairly scared and yes.

A. Mr Liddy standing between myself and the door, and the door shut.

A. Mr Liddy has manoeuvred me into that position.

A. By turning me around and putting my head in that direction.

Q. What were you doing as he did that, what was happening to you.

A. Just I had my eyes shut and I was sobbing really hard. I then remember Mr Liddy removing my pants.

A. I can't remember what I was exactly wearing. I remember the sensation of something being pulled off.

A. And I remember Mr Liddy, I can remember the sensation of the pain of having something put up your bum, forcibly.

A. Very, very painful, like explosive pain and yes, all I remember is my eyes shut and bawling, crying, a lot.

Q. Could you see or feel where Mr Liddy was when you felt that pain in your bum, as you say.

A. Mr Liddy was directly behind me at that point in time. The object that entered wasn't inanimate, it wasn't cold, it was - to the best of my knowledge, it was his penis.

Q. What did it actually - can you describe how it felt.

A. It wasn't cold and hard. You could tell it wasn't inanimate. It wasn't like a stick, or anything like that.

Q. Were you still crying while this was going on.

A. I can also remember the sensation of Mr Liddy withdrawing and liquid on my back, hot liquid on my back.

A. Warm, now being older you realise what it is.

Q. At the time what did it feel like and what, if anything, happened to that liquid.

A. I can remember it getting rubbed off my back with a hand movement on my back.

Q. Sorry to have to be particular about this, but you have talked about something being stuck into your bum. Are you referring to your anus when you talk about 'bum'.

Q. Keep going. You remember the warm liquid on your back.

A. And then I can remember Mr Liddy's attempts to try and calm me.

A. Yes, I was sobbing, just crying really hard.

A. In his attempts to try to calm me, I was told to calm down or he won't let me out and I can remember him patting my hair at that time, like, just in an attempt to try and calm me down, yes. I was still bawling my eyes out."

172. The effect of the appellant's conduct has been devastating. The numerous victim impact statements present consistent pictures of misery, shame and a loss of innocence. The suffering of all of the victims and their families has been extensive and ongoing. The scars will remain.

173. The offence of offering a benefit to a witness occurred in 1999. The witness was one of the complainants. The offence was aggravated by the appellant's position as a magistrate. He was aware of the sexual abuse that he had inflicted. He was also aware that this witness's account would be relevant to any complaint that had or may be advanced. The appellant's conduct was calculated to avoid detection and conviction. The sentencing judge observed:

"It is difficult to envisage a more serious threat to the administration of justice than for a judicial officer to bribe his victim to withhold information during the course of a current police investigation."

"The offence of attempting to dissuade a witness is a serious one. As the sentencing Judge said, attempting to dissuade a witness from giving evidence strikes at the heart of the judicial system, by attempting to deprive a court of probative evidence. If a court is deprived of relevant probative evidence, the risk of a wrong decision clearly arises. The offence is serious not only because it involves the making of a threat to another person. It has the added seriousness that the purpose of the threat, and its possible consequence, is the making of a decision by a court which will be made on an incomplete appreciation of the relevant facts, and will possibly be erroneous for that reason. Such a decision can, in turn, weaken confidence in the system of justice. At the very least, some of the persons involved in the matter before the court are likely to know that a threatened witness has not given evidence and thus are likely to know that an unreliable decision has been made.

For those reasons, it is appropriate for the court to punish severely persons who commit this offence. In the end, the court must do so to protect the integrity of the system of justice."

Although these remarks related to the offence of attempting to dissuade a witness they are apposite. As the appellant was a serving magistrate at the time his conduct seriously undermined public confidence in the administration of justice.

175. The appellant must now be sentenced for five counts of unlawful sexual intercourse with a person under the age of 12 years, each carrying a maximum penalty of life imprisonment, four counts of indecent assault three of which carry a maximum penalty of 10 years imprisonment and one which attracts a maximum penalty of eight years imprisonment and one count of offering a benefit to a witness which carries a maximum penalty of seven years imprisonment. To an extent each offence is separate and distinct although the sexual offending formed part of an on-going course of conduct.

176. In AB v The Queen[13] McHugh J considered the question of the proper approach to sentencing:

"To adopt a two-tiered approach to sentencing by beginning with an objectively determined sentence which is then arithmetically adjusted to take account of various factors is also a process which is plainly unsuited to the sentencing process in many cases. No doubt, where the circumstances of the offence are such that a heavy jail sentence is clearly required, the judge may make a notional or provisional assessment of the appropriate sentence and adjust it accordingly. But even in these cases - where punishment, deterrence and protection dominate the process - such an approach almost always invites error. Statutory exceptions aside, the task of the judge 'is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as the appropriate sentence'. If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case. ... Abstraction replaces the convicted person's circumstances in determining the appropriate sentence.

The factors bearing on a sentence will vary from case to case. Frequently, they will point in different directions. The task of the sentencing judge or magistrate is not to add and subtract from an objectively determined sentence but to balance the various factors and make a value judgment as to what is the appropriate sentence in all the circumstances of the case. In R v Rushby[14], Street CJ said, correctly in my opinion, that the 'determination in any given case of the appropriate sentence involves an adjudicative balancing of a number of differing and not entirely consistent elements'. No doubt at the conclusion of the process, the judge will check the sentence against other comparable sentences and may feel compelled to adjust the sentence up or down. But that is quite different from beginning with an 'objectively' determined sentence."

In Wong v R[15] Gaudron, Gummow and Hayne JJ agreed with these observations. They are directly relevant to sentencing the appellant.

177. In the present case the sentencing judge noted the problems with adopting a mathematical approach:

"If I were to adopt a strictly mathematical approach to sentence, it can be seen that for all of your offending I would very rapidly reach a sentence which would be in excess of 30 years imprisonment. I am, however, obliged to have regard to the principle of totality, which must be balanced against the need to impose a sentence which appropriately reflects the seriousness of your crimes."

These remarks illustrate the danger identified by McHugh J in AB. The task is to not add and subtract from an objectively determined sentence. The relevant factors must be balanced and a sentence reached that is appropriate in all of the circumstances of the case.

178. In Ryan v The Queen[16] McHugh J said:

"Whether or not paedophilia is an 'underlying condition' - and it appears not to be a psychiatric illness - it is by no means clear that a paedophile should be punished 'less severely than would be appropriate for a series of wilful and completely unconnected offences'[17]. If two men commit similar offences against children - one because he was a paedophile and the other for sexual gratification - I doubt that the general public would see any difference in the two cases. Indeed, the public view - which cannot be disregarded if courts are to maintain the confidence of the community - may be that the paedophile should get the heavier sentence of the two because he is more likely to re-offend. There is certainly judicial authority for that view. In Channon v The Queen[18], Brennan J, then a member of the Federal Court, said:

'An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period.'

In Veen v The Queen [No 2][19], a majority of this Court referred to the fact that an offender may have a condition that makes him or her a danger to society because of the propensity to re-offend. But the majority noted that, although the condition may be said to diminish his or her 'moral culpability for a particular crime', it is a double-edged sword. The protection of society is a material factor in fixing an appropriate sentence. As a result, a person suffering from that condition may not only be disentitled to receive any reduction in sentence because of that condition but the need to protect society may require a longer sentence than would otherwise be the case. As Mason CJ, Brennan, Dawson and Toohey JJ said in Veen [No 2][20]:

'It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence.'

For that reason, in Veen [No 2], this Court saw no error in principle when the prisoner was given a life sentence substantially because of the need to protect society from his homicidal impulses."

McHugh J then discussed differing views held in regard to the sentencing of paedophiles and continued:

"Whether these suggestions can be reconciled with traditional sentencing principles, however, is debatable. What is open to a legislature to do is not necessarily open to courts or judges who must act in accordance with established principles and who do not have authority to invent new and independent principles that do not fit with the existing body of principles and precepts. The established principles, recognising that punishment for crime serves a number of purposes, reflect competing factors and policies. They include the need to punish the offender, to protect society, to deter others and to rehabilitate and reform the offender[21]. ...

Thus, the existing principles require many sentences to be retributive in nature, a notion that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment. The 'persistently punitive' attitude of the community towards criminals[22] means that public confidence in the courts to do justice would be likely to be lost if courts ignored the retributive aspect of punishment. In the middle of the 20th century, the need for sentences that were conducive to the rehabilitation of the prisoner was much emphasised. Less attention was then paid to the retributive aspect which was often ignored by an embarrassing silence. But under the notion of giving the offender his or her 'just deserts', the retributive aspect has re-asserted itself in recent years[23]. In the case of offences by paedophiles, it is currently the most important factor in the sentencing process because their crimes are committed against one of the most vulnerable groups in society and they almost invariably have long term effects on their victims[24]. According to current community standards, it is proper that paedophiles should be severely punished for their crimes.

Sentencing principles in this country have emphasised the need to protect the community by imposing sanctions that reduce crime by removing the offender from contact with the general population and by deterring the offender and others from committing offences - the so-called 'reductive' justification for prison sentences. The need to protect the community is also particularly important in cases of paedophilia. Even if long sentences do not deter offenders or others with similar inclinations, such sentences at least have the effect of putting paedophiles in a place where they cannot harm children for the time being.

No sentencing principle or factor is decisive in every case. The purposes of punishment vary from offender to offender and from crime to crime[25]. Consequently, a principle or factor that will dominate in one case may be of secondary importance in another. The judicial task is to pass such sentence as is appropriate in all the circumstances of the case[26] having regard to the body of sentencing principles."

179. No explanation has been advanced for the appellant's conduct. It is unclear whether in the present case it was driven simply by a desire for sexual gratification or whether other conditions played a part. No abnormality has been identified to reduce the appellant's culpability. Deterrence and in particular general deterrence are important considerations.

Sentencing According to Standards at the time of the Offending

180. Counsel for the appellant submitted that the court should fix a new head sentence and non parole period by reference to the sentencing approaches and standards as they existed at the time of the appellant's offending.

181. There has been considerable debate about the proper approach to sentencing an offender when there has been long delay between the time of offending and the time of sentencing. In R v Leonardis[27] Cox J expressed the view that sentences should be based upon the facts and circumstances as they would have been viewed by a judge at a time proximate to the offending. This approach was endorsed by the Court of Criminal Appeal in R v Lane[28]:

"This appellant stands to be punished by the standards of ten or more years ago when it all happened."

In R v Major[29] Olsson J endorsed this view and observed:

"The series of offences admitted by the offender extended back over a lengthy period of time, the earliest being at some time in 1984. It is, in my view, undeniable that, in general, sentencing tariffs for the types of offence here in issue have increased significantly in recent years. It was therefore necessary, in carrying out the first notional stage of assessment of sentences to bear that well in mind. Those sentences fell to be arrived at in accordance with the sentencing environment as it existed at or about the time of commission of the offence: see R v Bird (1987) 9 Cr App R(S) 77 at 80, R v Lane (1996) 188 LSJS 93 at 95.

Moreover, it is not irrelevant to take into account what has occurred to the offender in the period since that offending: see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. In the instant case there are some distinct signs of positive steps towards rehabilitation."

Williams J was more circumspect in his acceptance of Lane[30]:

"In R v Lane (1996) 188 LSJS 93 the Court of Criminal Appeal considered the principles associated with a sentence to be imposed for offending which occurred many years earlier but in a different sentencing climate. The court there adopted the course taken by Cox J in R v Leonardis (unreported, Supreme Court, SA, Cox J, 13 November 1985) when he sentenced upon the basis of facts and circumstances as they would have been seen by a judge at an earlier time. Lane was a case involving drug offences where the accused had absconded from bail - in Lane's case for 10 years. The trial judge sentenced in accordance with sentencing standards recently reviewed by the CCA. However the CCA decided that Lane should have been 'punished by the standards of 10 or more years ago when it all happened.' It seems to me that in considering this present appeal, allowance in the respondent's favour should be made for the hardening in attitude which has occurred more recently towards sentencing for more crime."

This approach was doubted by Doyle CJ[31]:

"I doubt whether it is appropriate, in the present case, to depart from current sentencing standards. Granted, this is not a case in which the respondent absconded, therefore delaying the processes of the law, nor is it a case in which a delay in sentencing has occurred due to some delay on the part of the prosecuting authorities or the processes of the law: cf R v Shore (1993) 66 A Crim R 37. I consider that the present case is similar to that of Dick v The Queen (1994) 75 A Crim R 303. However, I accept that there are some differences. It is sufficient for me to say that I regard the question of the proper approach to be taken on this point as one that requires careful consideration, in the light of a more detailed review of the authorities than took place in the present case."

182. It is helpful to recall the observations of Street CJ in R v Todd[32]:

"... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.'

These remarks were approved and applied by the High Court in Mill v The Queen[33] where the court said:

"In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence. ..."

183. Delay may be taken into account in the sentencing process. The overriding consideration is fairness to the defendant. A number of authorities illustrate the importance of analysing the reasons for delay. A distinction may be drawn between delay in the sense of a time lapse between the commission of offences and conviction and delay in the sense of a failure by prosecuting authorities to expeditiously prosecute an offender[34].

"Offences involving sexual abuse within the family are by their very nature likely to remain undetected for substantial periods, partly because of fear, partly because of family solidarity and partly because of embarrassment. We consider that whilst any factors which have positively emerged in the time between the offences and the trial are open to the court to be taken into consideration, the mere passage of time cannot attract a great deal of discount by way of sentence in relation to offences of this kind."

In Holyoak[36] Allen J with whom Handley JA agreed and Hulme J substantially agreed observed:

"It is material, of course, that there was delay in the sense that a very long time elapsed between when the applicant committed his offences and when he was convicted. So manifestly is that relevant that I would not infer that his Honour overlooked it. Nor would I accept, on balance, that in the present case that lengthy delay was a detriment suffered by the applicant. Whether, in any particular case, so long a delay is a detriment depends upon the circumstances of that case. There is no rule of law that it always is a detriment - although often it will be. It could be, to take a case at one extreme, that the offender has spent years in emotional hell, appalled at what he has done, terrified that the day may come when he is found out, disgraced and convicted, fearing that at any time there will be that knock on the door and never feeling free to remain so long in any community that he comes to be known and his background be of interest to others. At the other extreme the offender may have gone through the years untroubled by his offences, lacking any remorse in respect of them and feeling confident that they will never come to light because the victim never would be prepared to talk about them, his confidence increasing as the years went by with his victim remaining silent - the offender enjoying over the many years unwarranted acceptance by his associates in his respectable and stable lifestyle."

Delay may be caused by factors outside a defendant's control. Fairness dictates that this be given appropriate weight by a court. However, if a defendant contributes to the delay then it is likely that little unfairness will result. Whilst delay should still be taken into account, it should not be afforded the same weight. Each case must turn on its own facts.

The appellant's criminal modus operandi, the age of his victims and the position and office held contributed to the delay in the victim coming forward. The appellant's conduct in offering a benefit to a witness was designed to prevent criminal proceedings being initiated and pursued. This is a case where delay was occasioned by the appellant's conduct.

In the present case there is a further difficulty in identifying any relevant past sentencing standards and practices. It is only in more recent times that offenders have frequently before the courts with respect to repeated sexual offending against children. In the past lengthy delays have often occurred between the time of offending and the ensuing judicial process. It has been suggested that a variety of reasons have prevented victims from coming forward. However over recent years there appears to have been a change in community attitudes. Victims from many years ago are now coming forward to voice their complaints. As a consequence there have been a number of cases in the last decade dealing with offences from the 1970's and 1980's. The sentencing standards relevant to offending of the type committed by the appellant are to be found in sentences imposed during the 1990's. Examples are such cases as AB and Ryan.

Counsel for the appellant has not established that earlier relevant sentencing standards for comparable conduct differed in any material way from those of the late 1990's.

The appellant has not established that the delay in this case has caused any unfairness. For many years he was able to continue his work as a magistrate and to pursue his other interests. There is no basis to conclude that the appellant has suffered as a result of having matters "hanging over his head" for a lengthy period. There is no suggestion of any contrition or remorse. To the contrary the appellant's conduct demonstrated a lack of contrition and a lack of remorse. He sought to avoid detection by engaging in the further criminal conduct of offering a benefit to a witness.

Counsel for the appellant submitted that the appellant would be subjected to a regime of particularly harsh punishment for the duration of his sentence. This was said to arise from his "status" in prison as a multiple child sex offender. It was also said to be attributable to his former position as a magistrate and in particular from his reputation as a "tough sentencing" magistrate. It was suggested that many of the appellant's fellow prisoners were sentenced or would know persons who were sentenced by the appellant and that as a result were likely to be ill disposed towards him. It was said that his sentence should be moderated on this account. The submission went so far as to suggest that a very short non parole period should be fixed.

The appellant deposed to his experiences in prison. A report from a psychiatrist familiar with prison conditions was received. Statements from others associated with the penal system were placed before the court.

The appellant was initially taken to G-division. This maximum security division is used to accommodate those who have committed offences whilst in prison. It is used to accommodate violent and repeat offenders and those who need protection as well as those who have attempted to escape or have used violence towards prison officers or other prisoners.

The appellant described his prison conditions as unusually harsh. He described the inside of his cell as having a urinal, a concrete slab for a bed, a cold water wash basin, toilet bowl and a steel bench and steel stool which are concreted to the floor. The cell's floor, walls and ceiling are concrete and measures just over two paces by three paces. There are two steel doors, an inside mesh door and an outside solid door with a peephole. There are no windows but 15 feet above the floor are some glass blocks. These allow light into the cell. The cell is air-conditioned and a loud exhaust fan operates 24 hours a day. The prison intercom radio is fixed on one particular station. Prisoners are without privacy as they are monitored by a camera and infrared technology when the lights are off. Cells are inspected twice daily. The appellant said he is constantly aware of other prisoners calling out and frequently hears violent acts and attempts at self harm.

The appellant's daily routine is unchanging. He rises at around 5:45 am. Breakfast is passed through the slot in his door at 5:55 am. At 8:30 am he is taken two paces from his cell to a locked shower for 10 minutes and then returned to his cell. At 11:00 am his lunch is passed through the slot in his door. At 4:00 pm his evening meal is passed through the slot.

Pyjamas are not worn in G-division. Prisoners go to bed in their clothes. Every night an officer checks each cell. This involves switching on the light inside the cell about every one to two hours. The appellant finds the banging of doors and jangling of keys that accompanies this process disturbing.

The appellant said that privileges enjoyed by other prisoners are not open to him. He said he is unable to possess musical instruments, video recorders, computers or telephones and has been unsuccessful in obtaining permission to have a radio in his cell. He said he is unable to access a bird aviary and has not seen trees or a blade of grass in the year that he has been in prison. The appellant is subjected to strip searches which include a visual anal examination whenever he attends court or receives a contact visit from his legal practitioner or other visitor. He said his telephone contact is restricted and that if he wants to make a telephone call he has to be taken to a small locked booth. He is then permitted to speak for 10 minutes to a person whom he has previously nominated on a form. No provision for haircuts other than by prison officers is made. The G-division library consists of only a couple of dozen books.

Whilst the conditions in G-division could be described as less than ideal it must not be overlooked that prisoners are sent to prison as punishment. Prisoners in G-division cannot expect to be given the privileges that are afforded to other prisoners particularly when they are in need of protection.

The appellant is entitled to periods of respite in which he can, accompanied by prison officers leave his cell for exercise or go outdoors. He can make telephone calls and entertain visitors however he has in the past chosen not to undertake these activities. The appellant says he fears being abused both physically and verbally by others.

Psychiatric evidence supported the conclusion that the appellant has a personality disorder and suffers from depression. This arises from his need for protection which is compounded by his acute anxiety state. These conditions aggravate and exacerbate the harshness of the regime to which he is presently subjected.

The appellant was offered employment within the prison system although it was menial in comparison with his former employment. He found this experience unsatisfactory primarily due to his concerns about reprisals from other prisoners. Whilst access to books and other items may not be as easily achieved in G-Division as in other areas of the prison, regulations provide a means through which requests for access can be made. When and if no satisfactory access is obtained complaint procedures can be pursued.

The Crown submitted that the appellant was being treated fairly and appropriately. It was said that for the Department of Correctional Services ("the Department") the current arrangements were necessary to discharge its duty of care.

Evidence was led from the Chief Executive Officer of the Department. He acknowledged the conditions faced by the appellant. However he explained that the appellant had a special vulnerability and needed protection. The Chief Executive Officer said that it was unlikely that the current conditions would continue indefinitely. He spoke of possible changes. He drew on his past experience of persons with comparable vulnerability to the appellant who over time adjusted to prison life in a way that led to greater freedom of movement. He also spoke of the possibility of alternative prison accommodation becoming available in the future.

The Chief Executive Officer's evidence allows the conclusion that it is probable that over time the appellant will be able to serve his sentence in a less harsh regime and under conditions in which his mental and physical health will not be unduly compromised. The evidence emphasised that the Department is concerned for the proper care of prisoners and is acutely aware of the need to ameliorate unduly harsh conditions.

The sentencing judge did not have the advantage of the detailed evidence put before this court. However she had regard to the fact that the appellant would face a harsh prison regime:

"I am, however, aware, from evidence given at your trial, that you are now aged about 56 years. You became a magistrate at about the age of 29 and at the time of your resignation I understand that you were the longest serving magistrate in this State. I am also mindful of the fact that quite apart from the problems associated with offending such as this, your reputation as a stern magistrate during your time on the bench will create problems in you being accommodated in the general gaol population.

In this regard I note, from the letter you handed me last week, that you have, to date, been held in solitary confinement. You also mentioned in that letter that you continue to suffer from depression, that having been in existence over the past two years.

There was also some evidence, in the course of your proceedings, that you suffer from some other health problems which may be of an organic nature."

There has been considerable judicial debate over the relevance of harsh prison conditions and their effect on the sentencing process. The principle of proportionality, the separation of powers[37] and the proper approach to sentencing need to be considered.

When dealing with the adverse effects of imprisonment Fox and Freiberg[38] noted:

"If the gravity of the offence warrants the order of imprisonment, predictions about the adverse effects of incarceration on the offender are unlikely to overturn the decision to imprison .... It follows that the likelihood of the time in prison being spent in maximum security, or the offender being subject to brutality, or being denied effective drug therapy, is regarded as irrelevant to the primary decision whether the crime, and the circumstances in which it was committed, call for a custodial sentence."

Making an allowance for an unduly harsh prison regime creates considerable difficulty. Such an approach may lead to a court participating in both law enforcement and the administration of prisons. The latter is traditionally a matter for a different arm of government. A consideration of the doctrine of the separation of powers suggests that involvement of this kind by the courts is inappropriate.

The interaction between a defendant and the prison environment produces a unique situation. There are authorities which suggest that if a particular defendant has certain characteristics that may be aggravated by a term of imprisonment there may be a reduction in sentence. A court may consider that the prison experience would be more onerous for a particular defendant than for other prisoners if relevant and admissible evidence is provided.[39]

In R v Davies and Gorman[40] the appellants complained about the sentences they received for multiple serious offences. Davies complained that his sentence did not reflect the fact that information he gave to the police resulted in the detection and arrest of some of the "most dangerous violent criminals in the country" and that as a result he and his family were placed "in grave danger". Lane CJ said[41]:

"We must also bear in mind that a sentence on an offender who has helped the police is one of intense severity in the prison. Mr Howard has eloquently drawn our attention to the fact that a prisoner in Davies' position in an ordinary prison in this country would have to be subject to solitary confinement under Prison Rule 43 for the rest of his time in jail, and will almost certainly have to leave the country when his time is over. Why? Because the underworld would have a grievance against him and his life would be at risk all the time."

In Astill (No 2)[42] Kirby P approved these remarks:

"It is by no means unusual for courts, in determining the duration of a custodial sentence, to take into account features of the offence or of the offender which will result in imprisonment bearing down more severely upon the offender than upon the average prisoner. In this context, quite outside the scheme of the Sentencing Act it has long been a recognised principle of sentencing that prisoners in strict protection undergo privations which make their period in custody more onerous than is the same period for ordinary prisoners. So much was said in the English Court of Appeal in Davies and Gorman."

In Inge v The Queen[43] Kirby J observed:

"However, the considerations that are relevant to the decision address the mind of the decision-maker not only to the "circumstances of the offence" but also to the "justice" of the case. ...Consideration must also be given to circumstances which may increase the impact of the sentence imposed upon the prisoner. Thus, it is relevant to consider the age of the offender, whether the offender may have to be kept in protection and whether the offender suffers from an illness or other condition which may render the punishment especially severe in his or her case ."

Kirby J returned to the issue in AB[44]:

"One possible reason for considering the appellant's complaint that the sentence was manifestly excessive would be the possibility that, if the matter were returned with no more than the identification of the error of principle which has been found, the Court of Criminal Appeal might proceed to reconsider only that part of the appellant's sentence which involved the post-extradition offences. Such an approach would deny the appellant the opportunity of reconsideration of other criticisms which he voiced in this Court about the overall sentence imposed upon him. The most substantial failure of the appellant's objections in that regard concern the suggested failure of the sentencing judge, and of the majority in the Court of Criminal Appeal, to pay appropriate attention to the fact that the appellant will be obliged to serve his long custodial sentence in protective custody. It is true that this consideration was mentioned in passing. However, it is well recognised in England[45] and in Australia[46] that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison.[47] In a sentence already accepted as being at least at the upper extremity of that available, and acknowledged by the sentencing judge as likely to be regarded by some as 'overly harsh', this consideration might not have been given as much weight as it deserved."

Although these authorities address different circumstances to those facing the appellant the underlying principles are apposite.

R v Boon[48] is a further example of the hardships imposed upon prisoners in protective custody. In that case the court said:

'... [w]eight should be given in favour of the respondent is that there is material justifying the conclusion that imprisonment will come particularly hardly upon him. It is not necessary to canvass the circumstances leading to that conclusion. He has thus far been held in custody that has involved some protective overtones during his time in a gaol. It is likely that this situation will continue into the future, this, I repeat, rendering his imprisonment more distressing and arduous than if he were to be imprisoned in accordance with the ordinary manner of holding prisoners within the State's penal institutions.' "

In R v Bailey[49] the appellant was convicted of a number of sexual and other offences. Whilst in custody prior to sentence he shared needles with other prisoners. At the time of sentencing, the results of an AIDS test had not been determined. The court proceeded to sentence the appellant. He later tested positive to AIDS. He was segregated at his own request in an isolation unit for AIDS sufferers.[50] He appealed against his sentence and claimed that he was unable to return to the general prison population because the prisoners with whom he had shared needles blamed him for endangering their lives. He also claimed that he would suffer greater hardship and a deterioration in his health, including his mental health because of the confinement that he was to undergo. Lee J with whom the other members of the court agreed said:

"It has, for a long period of time, been the practise in this Court to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would otherwise be the case of the ordinary gaol inmate. Considerations of health are in this category."

In Bekink v The Queen[51] the appellant was housed in a restricted management regime for some three months. This was not because of misconduct or a need for protection but because of a bed shortage and structural changes occurring within the prison. The appellant sought a reduction in sentence. The Western Australian Court of Criminal Appeal held that prison conditions could operate to reduce a term of imprisonment. The court allowed evidence about the harshness of the regime but held that any reduction would be "tinkering" given the short period of time in which the appellant was to be subject to the conditions. The same general principle was identified and applied by King CJ in Smith[52] in the passage earlier cited[53].

In R v Gooley[54] the appellant was convicted of a sexual offence. He was badly beaten by persons connected with the victim the morning following the offence. After publicity about the case the appellant was beaten in custody and was to spend the remainder of his time in prison in protective custody. Doyle CJ observed:

"The conduct of the victim's friends or family cannot reduce the appropriate sentence, in my opinion...

But I am prepared to make a small allowance despite this on the basis that the sentence which the appellant serves will be served under circumstances in which he will be at risk of harm and under special restrictions necessary to provide him with adequate protection. It is not possible to quantify with any precision the allowance which I make, but it is a small one."

A defendant who becomes an informer to assist the administration of justice may legitimately seek a reduction in sentence to recognise the harsh treatment and risks that will be likely to arise in prison and possibly on release. A need for a reduction may arise because of a disability or some other idiosyncratic feature of a defendant. A defendant who is blind or paralysed may also legitimately have that matter taken into account. Each case will turn on its own facts.

The appellant in this case needs protection. This need has arisen from the nature of his crimes and from his former employment. The appellant's need arises from matters of a different character to those earlier described. Their mitigatory effect is much less.

In Ryan[55] the High Court considered the issue of public opprobrium. Callinan J addressed the matter in the following terms:[56]

"Of course the abuse of an office to commit a crime is greatly to be deplored but the crime of a person occupying an office of some prominence will often attract much greater vilification, adverse publicity, public humiliation, and personal, social and family stress than a crime by a person not so circumstanced. When these consequences are attracted they should not be ignored by the sentencing court. ... To ignore such matters would be as unjust to a prominent person as it would be, in the case of a person in a menial position, to ignore disadvantages to him peculiar to his position, such as a likely greatly reduced, if not utterly destroyed capacity on release from prison, to find any remunerative employment at all. Nor do I think that the appellant should be disqualified from obtaining a credit for good character because such good character as he possesses has been gained in otherwise diligently doing his duty as a priest. Not everyone in a calling performs it as well or as diligently as another or other persons in it. One who does conscientiously perform his or her duty is entitled to the benefit of his or her reputation and character for so doing. And to acknowledge that some occupations, such as, perhaps, nursing, teaching, the clergy and the armed services, may attract well-motivated men and women and give them special opportunities to perform public service is not to disparage or demean others."

In my opinion the appeal should be allowed. The case should be remitted to the Court of Criminal Appeal for that Court to deal with the appellant's appeal, taking into account all relevant factors, including the need for credit to be given for the appellant's good works, character and reputation, and any special disapprobation, distress, and stress arising out of his conviction whilst he was the holder of a prominent position, in the full awareness that it was his exploitation of that position that enabled him to commit the crimes that he did. I would so order."

"I agree with Callinan J that in sentencing a prisoner such as the appellant, account might properly be taken of the particular features to which such a prisoner is exposed, including the additional opprobrium, adverse publicity, public humiliation and personal, social and family stress which he suffered. Thus, in resentencing the present appellant, it might be appropriate to fix a custodial sentence proper to his case taking into consideration, in a general way, the extent to which the appellant is now publicly identified as a paedophile as a result of the criminal proceedings taken against him. Where this occurs, the stigma will commonly add a significant element of shame and isolation to the prisoner and the prisoner's family. This may comprise a special burden that is incidental to the punishment imposed and connected with it. If properly based on evidence, it could, in a particular case, be just to take such considerations into account in fixing the judicial punishment required."

McHugh[58] J did not decide the issue but commented:

"It may be, as Kirby and Callinan JJ suggest, that factors such as public opprobrium and a permanent and public stigma entitle a convicted person to a lesser sentence than otherwise would be the case. But, at the moment, I am not convinced that that is so.

First, it would seem to place a burden on the sentencing judge which would be nearly impossible to discharge. The opprobrium attaching to offences varies greatly from one offender and one offence to another. How a judge could realistically take such a matter into account is not easy to see. Whether or not public opprobrium will attach to an offence and, if so, to what extent, will depend on the individual, his or her position and reputation in society, whether and when the offender will return to the community where the offence occurred and the nature of the publicity, if any, that the conviction receives. In the case of long sentences, taking into account the impact of public opprobrium or stigma would seem an impossible exercise and almost meaningless. In addition, taking public opprobrium or stigma into account would seem to favour the powerful and well known over those who were lesser known. I see no reason why the well known individual should get a lesser sentence than the person who is hardly known in his or her community.

No doubt it is legitimate to take into account many matters that are personal to the offender and that will have consequences on that person's future life[59]. It is legitimate, for example, to take into account that the conviction will result in the offender losing his or her employment or profession or that he or she will forfeit benefits such as superannuation[60]. But I am not convinced at the moment that public opprobrium is to be treated as equivalent to the loss of a job or similar personal or financial loss.

Second, the worse the crime, the greater will be the public stigma and opprobrium. The prisoner who rapes a child will undoubtedly be subject to greater public opprobrium and stigma than the prisoner who rapes an adult person. But, without the benefit of a full argument on the issue, I do not see why the objectively appropriate sentence for raping a child should be reduced by reason of any public opprobrium or stigma that the prisoner might suffer."

The question of whether it is appropriate for a sentencing judge to take into account prior good works, good character and reputation in cases of sexual offending has been debated. The majority in Ryan considered that credible evidence of prior good character can never be wholly irrelevant to the type or quantum of sentence imposed. However Gummow and Hayne JJ preferred to limit the scope of a sentencing judge's discretion. They refused to attach any significance whatsoever to evidence of prior good character.

Ryan confirms that a sentencing judge must ameliorate individual sentences or the total effective sentence by attaching some weight to an offender's proven prior good character. In the present case the weight that can be afforded to the appellant is limited. This is in part because the offences were not isolated acts but formed part of a prolonged course of criminal activity which included repeated abuse against his victims; the length of time the appellant remained undetected; the extent to which the offences were deliberate and carefully planned; the appellant's benign appearance or good standing was the very mask by which the crimes were committed; the gravity of the breach of trust involved and the need to give priority to deterrence.[61] As Hayne J explained[62]:

"the fact that an offender has done good things in the past, or has been well reputed in the community, may, Janus-like, wear two aspects. The fact that this offender was, to outward appearances, a devoted minister to his adult parishioners is admirable. But the appellant was able to secure the trust of his victims and their parents because he was thought to be worthy of respect."

In re-sentencing the appellant a relevant consideration includes the need for some credit to be given for his previous good works and his prior good character and reputation. However any credit arising from these matters must be measured against the use of his position as a surf lifesaving coach and his office as a magistrate as instruments to effect his criminal purposes. In the particular circumstances of this case only limited credit can be afforded.

The sentencing judge had regard to the decision of R v D[63] where Doyle CJ said:

"This review of the decisions of this court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future. By this I mean cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority.

In my opinion offences involving unlawful sexual intercourse with children under twelve years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s74(7) of the Act and to a single sentence imposed under s18A of the Criminal Law (Sentencing) Act. That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.

When the child in question is over twelve years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years' imprisonment."

Counsel for the appellant submitted that D represented a raising of the level of penalties for sexual offending against young children during the late 1990's. It was said that it would be unfair to use those standards when sentencing for offences committed during the early 1980's. It was further submitted that the terms of D were prescriptive.

The sentencing judge did not treat D to be prescriptive:

"In the case of D there was only one victim. W was, however, a case involving a number of victims. After considering the total course of conduct in W, the court considered the appropriate starting point before any reduction for totality was a sentence of 22 years imprisonment. I agree, however, with the Crown's submission that there are aspects of your case which make your offending more serious than that which occurred in W. In W there were only two offences of unlawful sexual intercourse involving one victim, the preponderance of the other offences consisting of crims of indecent assault.

In this case, however, I am confronted with six counts of unlawful sexual intercourse involving each one of these victims. At least four of those acts can be characterised as acts of a violent nature. In addition, in your case, there is a more extensive course of conduct and a very significant breach of trust."

In R v Place[64] the South Australian Court of Criminal Appeal addressed the issue of sentencing standards:

"In our opinion, the approach taken by this Court to the setting of standards of penalty is sound in principle and forms an important part of the proper role of the Court of Criminal Appeal. We respectfully agree with the observations of Gleeson CJ in Wong in the passage earlier cited. Where this Court has set standards of penalty, it has expressly identified the standards as applying to the ordinary cases and explained the reasons for setting the standards. In each instance, the nature of the 'ordinary case' has been identified and guidance given concerning the factors of particular relevance in the exercise of the sentencing discretion for particular offences. This Court has repeatedly made it plain that all relevant factors must be considered and that the guidance given by way of identifying a standard is not to be taken as detracting from the duty of the sentencer to assess the individual circumstances of each case and to impose a sentence appropriate to those individual circumstances. In each instance, when disposing of appeals that involve identifying a standard, this Court has had regard to all relevant factors and did not adopt a mechanical approach or an approach inappropriately fettered by the standard.

Finally, it is appropriate to make the following observations about the terminology that has, on occasions, been used. The word 'tariff' is capable of carrying with it the concept of a fixed penalty. That connotation explains why, in numerous appellate decisions, reference is made to a 'so-called tariff'. In our opinion it would be preferable to avoid using the word 'tariff' and to refer to sentencing standards which are intended to apply to ordinary cases and which are given for the guidance of sentencing courts.

Similarly, on occasions, the appellate court has expressed itself in terms that suggest that departure from a sentencing standard is only justified in 'exceptional' cases or circumstances. Again, the word 'exceptional' has the capacity to mislead. Properly understood in this context it refers only to a case that is not ordinary in the way that the appellate court has identified an ordinary case as involving a certain type of offence committed by a certain type of offender. However, in view of the capacity to mislead, in our view it would be preferable not to suggest that departure from a sentencing standard is only justified if the case or circumstances are 'exceptional'."

The remarks in D are not to be treated as prescriptive. They do not operate as a fetter on a sentencing judge's discretion. The remarks are to be read and understood having regard to the observations in Place. Ultimately each case must turn on its own facts. The references to possible "starting points" in D are of no assistance in the present case.

Counsel for the appellant raised a number of other issues said to be relevant to re-sentencing.

It was submitted that the appellant's age of 58 years was relevant as a lengthy period of imprisonment would see him spend most of the balance of his life in custody.

Courts can have regard to the advancing years of a defendant. King CJ confirmed this in The Queen v Hunter[65]. When dealing with a 74 year old defendant he observed:

"A sentencing Judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to him."

It is well settled that age may operate to mitigate sentence. It is a relevant matter to be considered in the fixing of a non parole period[66]. However age cannot be used to justify the imposition of an unacceptable or inappropriate sentence. Proper regard must be had to the punitive, deterrent, retributive and rehabilitative aspects of punishment[67]. In the present case no special relevance attaches to the appellant's age.

Counsel for the appellant submitted that the appellant's mother is elderly and will suffer as a result of his imprisonment. It was said that the court should have regard to this fact. Section 10(1) of the Sentencing Act provides that the court may consider the effect of imprisonment on the dependants of a defendant[68]. The Crown accepted that this was a relevant consideration.

Counsel for the appellant complained about the victim impact statements received by the court during sentencing submissions. In substance the complaint related to the class of persons who provided the statements and their contents. It was submitted that only the actual victim of a crime is permitted to provide a victim impact statement to the court. Accordingly it was said that those statements provided by the complainants' parents were wrongly received and used incorrectly by the sentencing judge. It was also said that the statements contained extraneous material including opinions about penalty and statements that were not causally linked to the appellant's proven criminal conduct. On appeal objection was taken to the following extracts from the complainants' parent's victim impact statements:

"From what I have learned both before and during the trial, I feel Mr Liddy is an extremely manipulative and sick person. It is not normal to place young boys in both a physical and mental situation that they cannot possibly understand or cope with. I can only wonder at the continuing anguish imposed not only on our son, but who knows how many other boys are placed in this position."

"All I can really say is that Mr Liddy is a very sick man who has manipulated my son in a very, very cunning way. Unfortunately, it seems my son is not the only one, and I can only hope that he, that is, Mr Liddy, is put away for a very long time and can no longer impose his will on any other children."

"...monster named Liddy... guilt for not seeing Liddy for the kind of man that he is, yet I also do understand that monsters like Liddy have made a life out of deceiving parents with all the right words and motions. For the beautiful son you so violently took all those years ago, I pray, Mr Liddy, that your God deserts you and that you rot in hell."

The other passage complained about came from a complainant's victim impact statement:

"Yes, I hope that Peter Liddy is found to be guilty of these crimes. He deserves it. He is a sick man who has used his position in society to gain access and opportunity to molest little boys. How could he work in a court as a magistrate and pass judgment on other people's crimes when he is committing one of the most shameful and disgusting crimes? I hope that he is put in gaol for life. Mick may be able to justify his actions in his own mind, or simply deny that they ever took place. However, those whose lives he has affected will be left with this for life. Hopefully his peers will recognise his ill effect on society and do what is right and just."

These were the only passages which counsel for the appellant identified as being of concern. Reliance was placed on the written submissions and only a bare assertion was advanced before this court orally. The complaints and submissions did not condescend to particularity. Counsel for the appellant submitted:

"The situation is this: there are a number of matters there with which the appellant would take issue, but really considers it best not to, in any way, suggest that these persons should have to, as it were, go through some sort of contested process."

The appellant sought credit for adopting this approach.

Victim impact statements provide victims with an opportunity to inform the court either orally or in writing about the impact and effect that a crime has had upon them. The standard form contains a number of questions. 'Yes' and 'No' boxes are provided and there is provision for written comments. The questions include:

"Were you physically injured? Did you receive any medical/dental treatment for the injuries suffered? What has your medical/dental treatment cost you so far? Is it likely that you will require further treatment? How has the crime affected you emotionally? For example shock, fear, grief, distress or embarrassment etc. Since becoming a victim have you noticed any change in the way you live? For example have you noticed any change in your sleeping habits, eating habits, social activity, relationship with immediate family or general way of life. Have you consulted a social worker/therapist/counsellor/psychiatrist etc? Have you had to repair or replace any property, lost any income or had to pay any other costs?"

There is a section to detail ongoing financial losses other than medical and dental costs. There is provision to describe the injury loss or property damage suffered and the nature of any insurance cover. The final section asks:

"has [the crime] had any effect on your immediate family? and do you wish to say anything else?"

The written contents of a person's victim impact statement have the potential to be varied and encompass a wide field of experiences. Victims are unlikely to turn their mind to evidentiary matters such as relevancy or give consideration to the need to avoid opinion or hearsay evidence. From a victim's perspective the statements provide them with an opportunity to tell their story, to inform the court about the way they feel and have felt since they became the victim of a crime. This by its very nature conflicts with the traditional adversary system. Given that counsel for the appellant did not seek to challenge the admissibility of the identified parts of the victim impact statements it is unnecessary to consider the issue of admissibility.

"3(1) In this Act, unless the contrary intention appears ... 'injury', in relation to an offence, includes pregnancy, mental injury, shock, fear, grief, distress or embarrassment resulting from the offence.

7A (1) A person who has suffered injury, loss or damage resulting from an indictable offence committed by another may furnish the trial court with a written personal statement (a victim impact statement) about the impact of that injury, loss or damage on the person and his or her family.

7 (1) Subject to subsection (2), the prosecutor must, for the purpose of assisting a court to determine sentence for an offence, furnish the court with particulars (that are reasonably ascertainable and not already before the court in evidence or a pre-sentence report) of -

(a) injury, loss or damage resulting from the offence;

10(1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

235. In the present case the complainants' parents were victims of the appellant's crimes. They suffered as a result of learning about what happened to their sons whilst they were in the appellant's care. Authority supports their status as victims[69]. No particular passage identifying any unforeseeable reaction or response on their part was identified by counsel for the appellant[70].

236. Counsel for the appellant complained that the victim impact statements provided opinions about penalty. As observed in Bekker v Police[71] it is undesirable for judges to consider the views of a victims' family about penalty. Debelle J in Drohan v Police[72] encountered a similar situation:

"Before sentencing the appellant the magistrate had adjourned the matter to enable the victims of the offence to attend before the court. I make no criticism at all of that practice. There are obvious advantages in it. It makes the defendant confront those who are the victims of the crime. However, the magistrate went a little further. She invited each of the two victims to express their view as to the appropriate penalty. Both said they believed that the appellant should serve a period of imprisonment. I think it was undesirable for the magistrate to invite the victims to express a view as to penalty. Victims not skilled in the sentencing process will not usually have regard to all of the factors bearing upon the proper exercise of the sentencing discretion. The fact that the magistrate invited those views raises the question whether the magistrate believed it was necessary to impose a period of imprisonment because that view had been expressed by the victims. The magistrate should not invite victims to express views as to penalty."

It is appropriate for the court to disregard observations of this character.

237. The appellant's sexual offending involved grave criminal conduct towards young children. There were matters of aggravation which have been referred to earlier. They included the breach of trust by the appellant arising from his position as a surf lifesaving coach and the use of his office as a magistrate. The appellant engaged in an ongoing course of criminal conduct.

238. The offence of offering a benefit to a witness was additionally a serious crime. An aggravating feature was that it was committed by a serving magistrate. General deterrence is an important consideration. The effect of the appellant's criminal conduct on each victim must be considered. The consequences on all victims have been grave. Some have suffered more than others. It is to be observed that there is no evident contrition or remorse on the part of the appellant. As the sentencing judge observed:

"You continue to maintain your innocence and you have not shown any contrition in this matter. As a result, each of these young men was obliged to give evidence at the trial. It was obvious that was very distressing for each of them. I only hope that the court process will, to some extent, assist them in achieving a sense of closure so that, eventually, they will be able to lead normal lives."

239. These matters are of particular relevance when regard is had to the observation of Doyle CJ in D[73]:

"They are offences [sexual offending against children] that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.

Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing."

240. The appellant's ongoing course of criminal conduct also raises the application of cumulative and concurrent sentencing principles. In Ryan Kirby J observed[74]:

"A conventional way of avoiding excess of punishment and of reflecting overall criminality, where a number of criminal acts are seen as connected in a relevant way, is to provide that the sentences imposed should be served (in whole or part) concurrently rather than cumulatively. Such orders may be reviewed on appeal. Where strong common elements linking criminal acts are accepted, it can sometimes be an error of principle, in determining punishment, to ignore that fact or to give undue weight to the separate acts involved. Although this well-established judicial practice (sometimes now regulated by legislation) is not exactly analogous to the consideration I have mentioned, there are certain similarities of principle. Each views the individual offences in their context, by reference to relevant linkages. That context and those linkages are not confined to temporal ones. Depending on the evidence and the issues in a case, similar questions might arise in sentencing a person whose behaviour is affected by schizophrenia, mental retardation, established drug addition, kleptomania, paedophilia or like contributors to multiple offending.

It has been said that '[r]etribution requires that a judicial sentence properly reflect the moral blameworthiness of [the] particular offender'. Where serial criminal offences manifest a common underlying condition which is properly proved, for example one giving rise to a 'compulsive sexual syndrome', it would seem arguably appropriate in sentencing to take the underlying condition into account. That condition might suggest that the particular instances of criminal offending are to be viewed as connected. In such a case, depending on the evidence and the issues, it might be proper to punish the offender less severely than would be appropriate for a series of wilful and completely unconnected offences."

"If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates."

Section 18A allows the one penalty to be imposed for all offences. In R v Symonds[75] Doyle CJ observed:

"In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.

In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed."

242. In the present case it is appropriate to proceed directly to the fixing of the one penalty. The sentence must have regard to the matters properly put in mitigation by counsel for the appellant. These matters have been addressed earlier and include the delay between the offending and sentence, the fact that the appellant will do his time hard, the position of the appellant's elderly mother, the appellant's prior good works, good character and reputation, his age, and the general opprobrium with which he is faced.

243. It is necessary to consider the principle of proportionality and finally the application of the totality principle to prevent the sentence from crushing the appellant.

244. A sentence of 25 years imprisonment is appropriate. A non parole period of 18 years should be fixed[76]. The sentence should commence from 5 June 2001 the date on which the appellant was first taken into custody.

77The sentencing remarks included the following: "The sentence of the court is, therefore, that you be imprisoned for a period of 25 years. I fix a non parole period of 18 years, that being the minimum period that you will be required to serve before being eligible to apply for parole. I direct that the sentence and the non parole period commence from 5 June 2001."

77 The appeal was allowed on the basis that it had not been proved beyond reasonable doubt that the victim was under 12 years of age. The substituted verdict was entered on the same basis. The maximum penalty in these circumstances is eight years imprisonment.

77 [1982] HCA 30; (1981-1982) 149 CLR 1 at 22-33

77 [2000] HCA 46; (2000) 203 CLR 452 at 469

77 R v Liddy [2002] SASC 19; (2001-2002) 81 SASR 22 at [426-431] and [459]

77 (1986-87) 44 SASR 587 at 589 - see Bailey [1988] HCA 19; (1988) 34 A Crim R 154

77 (1991) 53 A Crim R 391 at 395

77 One complaint is of a different character. It was said that the judge erred in refusing to further adjourn the sentencing process to allow the appellant time to obtain legal representation. The judge was faced with a difficult situation. There was a history of delay. The judge had already deferred sentencing for some months before rejecting the appellant's request. At one time it was submitted by the appellant that sentencing should be deferred until the appeal against conviction had been dealt with. Delay in sentencing affected the position of the victims of the crimes. No error in this respect has been established on the part of the judge.

77 R v Liddy [2002] SASC 19; (2001-2002) 81 SASR 22 per Mullighan J at [7-22], per Williams J at [470-473], per Gray J at [536-545]

77 R v Liddy [2002] SASC 19; (2001-2002) 81 SASR 22 at [7-24]

77 R v Liddy [2002] SASC 19; (2001-2002) 81 SASR 22 at [543] footnote 8

77 [2000] SASC 98 at [72-73]

77 [1999] HCA 46; (1999) 198 CLR 111 at 121-2. See also Hayne J at 156

77 [1977] 1 NSWLR 594 at 597

77 [2001] HCA 64 - See also Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 where McHugh, Hayne and Callinan JJ said: "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process."

77 (2001) 75 ALJR 815 at 822 - 824 - See also Case Note: Ryan v The Queen Paradox and Principle in Sentencing a Paedophilic Priest: Ryan's case in the High Court Melbourne University Law Review vol 26

77 [1988] HCA 14; (1988) 164 CLR 465 at 476-477

77 [1988] HCA 14; (1988) 164 CLR 465 at 473

77 Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 476.

77 R v Dole [1975] VicRp 75; [1975] VR 754 at 769.

77Glaser, "Paedophilia: The Public Health Problem of the Decade" - Australian Institute of Criminology, Paedophilia: Policy and Prevention (1997) 4 at 7.

77 R v Kane [1974] VicRp 90; [1974] VR 759 at 764-766; R v Williscroft [1975] VicRp 27; [1975] VR 292 at 299; R v Holder [1983] 3 NSWLR 245 at 270; R v Young [1990] VicRp 84; [1990] VR 951 at 955.

77 R v Young [1990] VicRp 84; [1990] VR 951 at 954.

77 (1996) 188 LSJS 93 at 95

77 (1997 - [1998] SASC 7089; 1998) 70 SASR 488 at 498

77 [1998] SASC 7089; (1997-19988) 70 SASR 488 at 500

77 [1998] SASC 7089; (1997-1998) 70 SASR 488 at 490. See also the dissenting judgment of Smart J in R v PLV (2000-2001) 51 NSW LR 736 at 746:

"While I would not regard it as decisive I would take into account the sentence which would have been imposed for the offence in 1974 or 1975. The weight to be attached to that factor, if any, will depend upon the circumstances including the mitigating factors which emerge. This is of some importance where the legislation governing the offence has been repealed. It is useful to do so as a check as to the correctness of the sentence intended to be imposed.

In the present case the judge's approach to sentence was correct in that he assessed the applicant's criminality at the time of the offence and then took into account the applicant's subjective features existing at 1974 and today. The sentencing judge would not have been aware of the sentences being imposed in 1974 for an offence such as the present one."

These remarks were approved by a majority of the court in R v MJR [2002] NSW CCA 129

77 [1982] 2 NSWLR, 517 at pp 519-520

77 [1988] HCA 70; (1988-1989) 166 CLR 59 at 65-66 see also Radenkovic v The Queen [1990] HCA 54; (1990) 170 CLR 623 at 632

77 Holyoak (1995) 82 A Crim R 502

77 (1990) 12 Cr App R 122 at 125. These remarks were applied in Dick (1994) 75 A Crim R 303 at 307-308. See also Fox and Freiberg Sentencing State and Federal Law in Victoria 2nd ed 1999 at 333-336 especially footnote 994

77 (1995) 82 A Crim R 502 at 508 - 509

77 R v Deputy Governor of Pankhurst Prison; ex parte Hague [1992] 1 AC 58 at 165; Prisoners A-XX Inclusive v State of New South Wales (1995-1996) 38 NSWLR 622 at 627

77 Sentencing: State and Federal Law of Victoria (2nd Edition Oxford University Press 1999), p 652 Fox and Freiberg, Sentencing State and Federal law in Victoria 2nd ed 1999

77 R Edney "Hard Time, Less Time: Prison Conditions and the Sentencing Process" Criminal Law Journal volume 26 June 2002 at 139-151

77 (1979) 68 Cr App R 319

77 (1979) 68 Cr App R 319 at 322

77 (1992-93) 64 A Crim R 289 at 293. See also R v Rostom [1996] VicRp 59; [1996] 2 VR 82

77 (1999-2000) CLR 295 at 316

77 [1999] HCA 46; (1999) 198 CLR 111

77 R v Lowe (1977) 66 Cr App R 122 at 126; R v Davies (1978) 68 Cr App R 319

77 R v Cartwright (1989) 17 NSWLR 243 at 255

77 In R v Davies (1978) 68 Cr App R 319 at 322 it was said that one year of solitary confinement is equivalent to 18 months to two years' ordinary imprisonment because of the 'intense severity' of the regime. See also R v Perez-Vargas (1987) 8 NSWLR 559 at 563 per Street J

77 Unreported, NSW Court of Criminal Appeal, 17 November 1983

77 (1987-1988) 35 A Crim R 458

77 Disadvantages cited included less space than the general prison, restricted movement and access to visitors and an enclosed exercise yard.

77 [1999] WASCA 160; (1997) 107 A Crim R 415

77 (1986-87) 44 SASR 587 at 589. See also R v Perez-Vargas (1987) 8 NSWLR 559

77 (1995-96) 66 SASR 380 at 382-383

77 Richards (1980) 2 Cr App R (S) 119.

77 R v Wright [No 2] [1968] VicRp 17; [1968] VR 174 at 180.

77 R Fox Case note: Ryan v The Queen Paradox and Principle in Sentencing a Paedophilic Priest: Ryan's Case in the High Court Melbourne University Law Review 2002 Vol 26 at 178-191

77 [1997] SASC 6350; (1997) 69 SASR 413 at 423-424

77 (1983-84) 36 SASR 101, see R v Esposito v R [2000] SASC 182

77 Inge (1999) CLR 295 at [3] [58]

77 R v Miller (1999-2000) 206 LSJS 313; R v Bazley (1992-1993) 65 A Crim R 154

77 "(n) the probable effect any sentence under consideration would have on dependants of the defendant; ..."

77 R v Birmingham (No 2) (1997) 69 SASR 502; Marchant v Police [2000] SASC 100; (1999-2000) 76 SASR 234; Bekker v Police (2001) 120 A Crim R 170

77 R v Agius [2000] SASC 259; (2000) 77 SASR 469

77 (2001) 120 A Crim R 170

77 [2000] SASC 207 at [4]

77 [1997] SASC 6350; (1997) 69 SASR 413 at 423

77 [1999] SASC 217 at 4-5

77 This is the same sentence that was imposed by the sentencing judge although a number of different considerations have been taken into account.

[1]The sentencing remarks included the following: "The sentence of the court is, therefore, that you be imprisoned for a period of 25 years. I fix a non parole period of 18 years, that being the minimum period that you will be required to serve before being eligible to apply for parole. I direct that the sentence and the non parole period commence from 5 June 2001."

[2] The appeal was allowed on the basis that it had not been proved beyond reasonable doubt that the victim was under 12 years of age. The substituted verdict was entered on the same basis. The maximum penalty in these circumstances is eight years imprisonment.

[3] [1982] HCA 30; (1981-1982) 149 CLR 1 at 22-33

[4] [2000] HCA 46; (2000) 203 CLR 452 at 469

[5] R v Liddy [2002] SASC 19; (2001-2002) 81 SASR 22 at [426-431] and [459]

[6] (1986-87) 44 SASR 587 at 589 - see Bailey [1988] HCA 19; (1988) 34 A Crim R 154

[7] (1991) 53 A Crim R 391 at 395

[8] One complaint is of a different character. It was said that the judge erred in refusing to further adjourn the sentencing process to allow the appellant time to obtain legal representation. The judge was faced with a difficult situation. There was a history of delay. The judge had already deferred sentencing for some months before rejecting the appellant's request. At one time it was submitted by the appellant that sentencing should be deferred until the appeal against conviction had been dealt with. Delay in sentencing affected the position of the victims of the crimes. No error in this respect has been established on the part of the judge.

[9] R v Liddy [2002] SASC 19; (2001-2002) 81 SASR 22 per Mullighan J at [7-22], per Williams J at [470-473], per Gray J at [536-545]

[10] R v Liddy [2002] SASC 19; (2001-2002) 81 SASR 22 at [7-24]

[11] R v Liddy [2002] SASC 19; (2001-2002) 81 SASR 22 at [543] footnote 8

[12] [2000] SASC 98 at [72-73]

[13] [1999] HCA 46; (1999) 198 CLR 111 at 121-2. See also Hayne J at 156

[14] [1977] 1 NSWLR 594 at 597

[15] [2001] HCA 64 - See also Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 where McHugh, Hayne and Callinan JJ said: "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process."

[16] (2001) 75 ALJR 815 at 822 - 824 - See also Case Note: Ryan v The Queen Paradox and Principle in Sentencing a Paedophilic Priest: Ryan's case in the High Court Melbourne University Law Review vol 26

[19] [1988] HCA 14; (1988) 164 CLR 465 at 476-477

[20] [1988] HCA 14; (1988) 164 CLR 465 at 473

[21] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 476.

[22] R v Dole [1975] VicRp 75; [1975] VR 754 at 769.

[23] Warner, Sentencing in Tasmania (1991) at 250.

[24]Glaser, "Paedophilia: The Public Health Problem of the Decade" - Australian Institute of Criminology, Paedophilia: Policy and Prevention (1997) 4 at 7.

[25] R v Kane [1974] VicRp 90; [1974] VR 759 at 764-766; R v Williscroft [1975] VicRp 27; [1975] VR 292 at 299; R v Holder [1983] 3 NSWLR 245 at 270; R v Young [1990] VicRp 84; [1990] VR 951 at 955.

[26] R v Young [1990] VicRp 84; [1990] VR 951 at 954.

[28] (1996) 188 LSJS 93 at 95

[29] (1997 - [1998] SASC 7089; 1998) 70 SASR 488 at 498

[30] [1998] SASC 7089; (1997-19988) 70 SASR 488 at 500

[31] [1998] SASC 7089; (1997-1998) 70 SASR 488 at 490. See also the dissenting judgment of Smart J in R v PLV (2000-2001) 51 NSW LR 736 at 746:

"While I would not regard it as decisive I would take into account the sentence which would have been imposed for the offence in 1974 or 1975. The weight to be attached to that factor, if any, will depend upon the circumstances including the mitigating factors which emerge. This is of some importance where the legislation governing the offence has been repealed. It is useful to do so as a check as to the correctness of the sentence intended to be imposed.

In the present case the judge's approach to sentence was correct in that he assessed the applicant's criminality at the time of the offence and then took into account the applicant's subjective features existing at 1974 and today. The sentencing judge would not have been aware of the sentences being imposed in 1974 for an offence such as the present one."

These remarks were approved by a majority of the court in R v MJR [2002] NSW CCA 129

[32] [1982] 2 NSWLR, 517 at pp 519-520

[33] [1988] HCA 70; (1988-1989) 166 CLR 59 at 65-66 see also Radenkovic v The Queen [1990] HCA 54; (1990) 170 CLR 623 at 632

[34] Holyoak (1995) 82 A Crim R 502

[35] (1990) 12 Cr App R 122 at 125. These remarks were applied in Dick (1994) 75 A Crim R 303 at 307-308. See also Fox and Freiberg Sentencing State and Federal Law in Victoria 2nd ed 1999 at 333-336 especially footnote 994

[36] (1995) 82 A Crim R 502 at 508 - 509

[37] R v Deputy Governor of Pankhurst Prison; ex parte Hague [1992] 1 AC 58 at 165; Prisoners A-XX Inclusive v State of New South Wales (1995-1996) 38 NSWLR 622 at 627

[38] Sentencing: State and Federal Law of Victoria (2nd Edition Oxford University Press 1999), p 652 Fox and Freiberg, Sentencing State and Federal law in Victoria 2nd ed 1999

[39] R Edney "Hard Time, Less Time: Prison Conditions and the Sentencing Process" Criminal Law Journal volume 26 June 2002 at 139-151

[40] (1979) 68 Cr App R 319

[41] (1979) 68 Cr App R 319 at 322

[42] (1992-93) 64 A Crim R 289 at 293. See also R v Rostom [1996] VicRp 59; [1996] 2 VR 82

[43] (1999-2000) CLR 295 at 316

[44] [1999] HCA 46; (1999) 198 CLR 111

[45] R v Lowe (1977) 66 Cr App R 122 at 126; R v Davies (1978) 68 Cr App R 319

[46] R v Cartwright (1989) 17 NSWLR 243 at 255

[47] In R v Davies (1978) 68 Cr App R 319 at 322 it was said that one year of solitary confinement is equivalent to 18 months to two years' ordinary imprisonment because of the 'intense severity' of the regime. See also R v Perez-Vargas (1987) 8 NSWLR 559 at 563 per Street J

[48] Unreported, NSW Court of Criminal Appeal, 17 November 1983

[49] (1987-1988) 35 A Crim R 458

[50] Disadvantages cited included less space than the general prison, restricted movement and access to visitors and an enclosed exercise yard.

[51] [1999] WASCA 160; (1997) 107 A Crim R 415

[52] (1986-87) 44 SASR 587 at 589. See also R v Perez-Vargas (1987) 8 NSWLR 559

[54] (1995-96) 66 SASR 380 at 382-383

[59] Richards (1980) 2 Cr App R (S) 119.

[60] R v Wright [No 2] [1968] VicRp 17; [1968] VR 174 at 180.

[61] R Fox Case note: Ryan v The Queen Paradox and Principle in Sentencing a Paedophilic Priest: Ryan's Case in the High Court Melbourne University Law Review 2002 Vol 26 at 178-191

[62] Ryan v The Queen (2001) 75 ALJR 815 at 840

[63] [1997] SASC 6350; (1997) 69 SASR 413 at 423-424

[64] [2001-2002] 81 SASR page 395 at [31-33]

[65] (1983-84) 36 SASR 101, see R v Esposito v R [2000] SASC 182

[66] Inge (1999) CLR 295 at [3] [58]

[67] R v Miller (1999-2000) 206 LSJS 313; R v Bazley (1992-1993) 65 A Crim R 154

[68] "(n) the probable effect any sentence under consideration would have on dependants of the defendant; ..."

[69] R v Birmingham (No 2) (1997) 69 SASR 502; Marchant v Police [2000] SASC 100; (1999-2000) 76 SASR 234; Bekker v Police (2001) 120 A Crim R 170

[70] R v Agius [2000] SASC 259; (2000) 77 SASR 469

[71] (2001) 120 A Crim R 170

[72] [2000] SASC 207 at [4]

[73] [1997] SASC 6350; (1997) 69 SASR 413 at 423

[75] [1999] SASC 217 at 4-5

[76] This is the same sentence that was imposed by the sentencing judge although a number of different considerations have been taken into account.