The factor which made the fixation of appropriate sentences a difficult one for the primary judge was that it was common ground that the applicant has, and had at relevant times, psychiatric difficulties. The judge had before him reports from two psychiatrists, Dr Jim Rodney and Dr Donald Grant.

Dr Rodney said in his reports that the applicant had been a patient of his for many years. He described him as a subnormal man who had been referred to the doctor because of difficulties in controlling his sexual impulses. Dr Rodney remarked:

"I have attempted to treat this over a number of years but every now and again the disorder does tend to exacerbate."

He had been treated with some success with Melleril, a major tranquilliser, but Dr Rodney said he had no contact with the applicant between May 1996 and January 1997. It was during that period that the offences in question were committed, that is, between October and December 1996. Dr Rodney said that the applicant had always had an attraction to children and had difficulty in forming any adult sexual relationships. The doctor had some doubts about what he called the applicant's "ability to conceptualise the whole concept of right and wrong". In February 1997, Dr Rodney reported that the applicant was back in the doctor's care and taking his medication and he said "I am more optimistic about his control at present".

Dr Grant, the other psychiatrist, saw the applicant at the request of the Legal Aid Office in June 1997. In discussion with Dr Grant the applicant said, in effect, that his having sexually abused the little boy was connected with the applicant having had similar experiences when he, himself, was young. He said the "only way I can punish the guy who did it to me is to do it to little boys". The applicant admitted to Dr Grant that his sexual interest is in little boys aged up to about 10, that he had interfered with young boys when in homes run by Unicare, a body connected with the Uniting Church, and that he had been warned by the police about this on one occasion. Dr Grant said the applicant's right hand is affected by cerebral palsy, that he is on a disability support pension and lives a solitary life. The applicant told Dr Grant that he was very fond of the little boy in question and upset about what he had done to him. The doctor's opinion was that the applicant is intellectually handicapped, functioning in the borderline to mildly retarded range.

Dr Rodney had described the applicant as subnormal. Dr Grant expressed the opinion that the applicant suffers from "mild intellectual handicap and homosexual paedophilia". The prognosis was described by the doctor as "very guarded" and he thought that the applicant's paedophilic sexual interests would be unlikely to be altered by therapy. Dr Grant thought the risk of future offending was quite high but might be reduced by further treatment. He noted that during an interview the applicant expressed some view that he might suicide, particularly if imprisoned, and the doctor thought this should be brought to the notice of prison authorities. Dr Grant said that he "might require special observation, especially in the early phases of any imprisonment. Being of limited intellect, he would also be vulnerable to abuse or aggression in the prison environment, and might need special protection from this point of view as well".

To come now to the circumstances of the offences, it was the grandmother of the two children I have mentioned who arranged with the applicant that he would have contact with them. The contact was as a baby-sitter. Information about the nature of the dealings has been obtained from police interviewing the little boy, from his half-sister who witnessed some of what went on and also from interviewing the applicant who co-operated fully with the police. The applicant's account included an admission that he had sodomised the little boy, but it is not clear precisely what happened in relation to that. The Crown has submitted that anal penetration was attempted or accomplished and that seems right. The applicant also, according to the information placed before the primary judge, was in some fashion sodomised by the little boy. The applicant also got the boy to suck his penis and masturbated in front of the boy to ejaculation and had the boy urinate into his mouth. The primary judge described the acts in question as being ones which "right-thinking, and even the normal member of the community would consider to be quite inappropriate, since they involve dealings of a sexual nature with a young four-year-old male, sometimes in the presence of that child's elder sister, and other activities by Mr McConachie in the sight of the boy and the girl". The judge described his own task as being "to determine that punishment which will both mark society's revulsion at what was done, whilst at the same time setting out to ensure, so far as possible, the rehabilitation of the offender."

As I have indicated the real question is whether the sentence imposed was excessive on the ground that it did not adequately reflect the mitigating circumstances consisting in the pleas of guilty and also, more importantly, in the applicant's intellectual handicap and homosexual paedophilia. As to the latter, the diagnosis of homosexual paedophilia and the undoubted fact that the applicant presents a sexual danger to young boys indicate a need for community protection. The case does not seem to be one in which deterrence is likely to be successful, other than in the sense of keeping this applicant out of reach of temptation during the period he is in gaol; there is little or no reason to think that prison will diminish the applicant's tendency towards sexual interest in very young boys. In this respect the case may be contrasted with H CA No 89 of 1997, judgment delivered 9 May 1997). There, this Court, dealing with a person with a bad record of interfering with young girls sexually, referred to using a suspended sentence with a long operational period in the hope that the offender "might be persuaded not to commit this type of offence again". The case is one in which the remarks of the majority in Bazley (CA No 220 of 1997, judgment delivered 5 August 1997) are applicable. In that case Davies JA and McPherson JA said:

"there is nothing which would indicate that the imposition of a term of actual custody would have any deterrent effect on this man's paedophilic tendencies except, of course, during what would be a relatively short period of actual incarceration."

It has been argued on behalf of the applicant that in the present case the head sentence was too high and the recommendation for parole, which was for parole after 18 months, was too severe. It appears to me that if one considers the case from the point of view of what was actually done to the boy, that contention is unsupportable. The real question, as I have said, is whether or not the judge should have shortened the head sentence or made a more generous recommendation for parole on the ground of what counsel described as the lack of moral culpability. It appears to me clear from having studied the record that His Honour was very conscious of the fact of which counsel has mentioned, but also conscious of the necessity to mark the community's disapproval of the behaviour and to make provision for future supervision of the applicant during a long period of parole.

In my opinion the ultimate sentence which was arrived at was not only not excessive, but was a reasonable approach to the problem, which was not an easy one for the primary judge. And while feeling some sympathy for the applicant, as one must feel for a person so afflicted, it appears to me that the application should be dismissed.