Supreme Court of SA|2002-11-19

R v LIDDY No. SCCRM-01-282 [2002] SASC 306 (19 November 2002)

CRIMINAL LAW --- PARTICULAR OFFENCES --- OFFENCES AGAINST THE PERSON --- OTHER OFFENCES AGAINST THE PERSON --- SEXUAL OFFENCES

APPEAL AGAINST SENTENCE Appellant found guilty after a trial by 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 - consideration of appropriate sentencing standard where offences occurred many years ago - appellant aged 57 years - consideration of possibility of his dying in prison or shortly after release - significance of otherwise previous and subsequent good character, loss of profession and employment, special disopprobrium, distress and stress and lapse of time between offending and sentence - whether lack of subsequent offending indicates rehabilitation - consideration of effect of sentence upon appellant's elderly mother - victim impact statements - consideration of whether relatives of primary victims are victims - contents of victim impact statements - power to exclude parts of such statements where irrelevant - whether sentence imposed upon a factual basis which was not proved - use of evidence of uncharged acts - appellant unrepresented at sentencing hearings - whether proceedings should be adjourned - sentence and non-parole period not manifestly excessive - need to re-sentence because conviction on one count set aside and conviction on lesser charge entered - consideration of state of health of the appellant since sentence imposed and conditions in solitary confinement - consideration of significance of financial losses sustained by the appellant - appeal dismissed.

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)

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.

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

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.

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.

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".

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.

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.

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.

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.

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.

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.

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.

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.

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.

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."

R v LIDDY No. SCCRM-01-282 [2002] SASC 306

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R v LIDDY No. SCCRM-01-282 [2002] SASC 306 (19 November 2002)

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Legislation Cited (8)

Cases Cited (43)