(2) That the sentence imposed did not reflect a finding by his Honour that there were special circumstances.
(3) The terms of the victim impact statement were calculated to lead, and led, to matters being taken into account that should not have been.
(4) That the sentences imposed are manifestly excessive.
13 Between 14 August 1999, when the applicant was arrested, and 6 June 2000 when the first of the sentences imposed by Judge McGuire commenced, is a period of about nine and three-quarter months. The portion of this referable to other matters was three months, so the pre-sentence custody referable to the offences with which Judge McGuire was concerned was six and three-quarter months. This is fairly described as "approximately six months", so the first ground of appeal fails.
14 The simple answer to the second ground is that his Honour did not find special circumstances, except insofar as is implicit in his mention of the topic and providing in the cumulative sentence of two years that he imposed a non-parole period of only six months. Of course, so far as that sentence is concerned, his Honour did depart from the ratio referred to in s 44 of the Crimes (Sentencing Procedure) Act, 1999. What his Honour said was:
"I have considered the question of special circumstances. I will adjust the sentence to allow sufficient time for alcohol rehabilitation. ... There are facilities within the prison system by way of counselling for alcohol problems. Further, the parole period which I will fix is sufficient to permit the prisoner to participate in any alcohol rehabilitation programme if he is genuinely motivated."
15 It may be accepted that the parole period of eighteen months allowed by the sentence is less than one-quarter of what will be the applicant's total period of custody since August 1999, but in light of the way his Honour approached the matter, namely by directing attention to what period he considered sufficient to address the applicant's alcoholism, this is of no consequence.
16 I turn to the third ground. What was tendered as the victim impact statement of the applicant's stepdaughter consisted of a one and a half page document by the victim which fairly falls within that description and a five and a half page annexure by a sexual assault counsellor to the victim, which concluded with the impertinence:
"It is recommended that the findings of this report be considered seriously in the sentencing of Mr Adler and in any consequent claims made by (the stepdaughter) for criminal compensation."
17 Quite apart from the obvious partisanship apparent in the annexure, it refers to conduct of the applicant which, if it occurred, went well outside the incidents, the subject of charges against him. It is a reasonable inference that the impact on the victim of which the document speaks was, at least in part, the result of these other matters.
18 In practical terms this was probably impossible to avoid. Similar comments, albeit because of its less detailed and partisan drafting, with less force, may be made in relation to the victim impact statement itself.
19 This Court in Regina v Bakewell (unreported, CCA, 27 June 1996) drew attention to the problems created when such material, going well outside the circumstances and consequences of the offences charged, is placed before a court. However, if there was to be any victim impact statement tendered in the case it was, as I have indicated, probably inevitable that in its definition of the impact on the victim had to embrace the consequences of these further matters.
20 Having regard to the terms of s 30 of the Crimes (Sentencing Procedure) Act, it is by no means self-evident that the annexure by the counsellor should have been included. Certainly, having regard to the terms in which the draft document is drafted, it should not have been, and it is apparent that his Honour had regard to the terms of the annexure. The matters to which I have referred earlier in these reasons make that clear.
21 That said, it is appropriate to consider the consequences of this conclusion after I have dealt with the fourth topic urged in support of the application, namely that the sentence is manifestly excessive.
22 An appropriate starting-off point in any consideration of this ground are the maximum penalties prescribed. I have set these out. By comparison with merely the ten year periods prescribed for the offences for which the sentences of three or four, implicitly about three and a half years in the case of one victim and two years in the case of the other, were imposed, these sentences are by no means high. It must be recognised that against each victim there was more than one offence, each of which rendered him liable to punishment, and more than one period of offending. In no sense can his offending against either victim be regarded as but one occasion of lapse.
23 That proposition becomes of more weight once one gives recognition to the fact of two victims and the entirely different periods - one in 1988-89 and the other in 1994 and 1997 - when he offended against them. It was clearly a case where accumulation of the sentences imposed in respect of the different victims should occur.
24 It was submitted that having regard to an appropriate allowance for the applicant's plea one must infer that his Honour thought that sentence, but for the plea, should have been something of the order of twenty-five percent higher than that actually imposed.
25 Reference was made to the guideline judgment in Regina v Thompson . Of course that decision was not then in existence but it may reasonably be anticipated that his Honour, an experienced sentencing judge, allowed a discount along the lines of the range envisaged in Thompson's case. However, I am by no means persuaded that the circumstances of this case merited anything like a twenty-five percent discount for the applicant's plea. Something closer to the bottom of the range referred to in Thompson's case would have seemed to me more appropriate.
26 The conclusion at which I have arrived is that the sentences were by no means excessive. Indeed, even though I think in some respects the sentencing process miscarried because of the terms of the annexure to the victim impact statement, I would not interfere. Section 6(3) of the Criminal Appeal Act provides:
"On an appeal under s 5(1) against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor and in any other case shall dismiss the appeal."
27 In my view, when regard is had to the applicant's criminality, no lesser sentence than he received is appropriate. Given the magnitude of the sentences I would grant leave to appeal but I would dismiss the appeal.
28 GROVE J : I agree with the orders proposed by Hulme J. Those orders therefore will be the orders of the Court.