R v MJB

Court of Criminal Appeal (NSW)|2014-09-17|Before: Hoeben CJ, Fullerton J, Adamson J

Judgment 1HOEBEN CJ at CL: I agree with Adamson J 2FULLERTON J: I agree with Adamson J. 3ADAMSON J: The Director of Public Prosecutions (the DPP) appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on the respondent on 28 March 2014 by Flannery DCJ on the single ground of manifest inadequacy. 4An aggregate sentence was imposed of 5 years and 6 months to commence on 17 January 2011 with a non-parole period of 3 years and 10 months for 19 offences of child sexual offending involving 4 victims (TW, SM, LM and ET) aged between 8 and 12 and on at least 9 separate occasions. The respondent was convicted after trial by jury of some of the charges; in respect of others he pleaded guilty, as shown in the table below. 5On 17 July 2013 the respondent stood trial on an indictment (the trial indictment). He pleaded guilty to count 8 (aggravated indecent assault on a person under the age of sixteen years), but not guilty to the remaining counts. On 31 July 2013 the jury returned a verdict of guilty on all but one of the remaining counts. One of the original counts, 13, was the subject of a verdict by direction, but was replaced by consent by a further count, 13A. 6A second indictment was presented on 4 November 2013 (the plea indictment) to which the respondent entered pleas of guilty to three further charges of aggravated indecent assault on a person under sixteen years (s 61M of the Crimes Act 1900 (NSW)). These offences were committed between 1 January 2003 and 31 March 2003. The standard non-parole period came into effect on 1 February 2003 but, as the sentencing judge was not satisfied that the offences were committed after that date, her Honour did not have regard to it. The respondent asked that a Form 1 offence of aggravated indecency be taken into account in the sentence for the third count on the indictment. 7Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge indicated the sentences that would have been imposed but for the imposition of an aggregate sentence. The indicative sentences for each count are set out in the following table. Trial indictment Count no./ victim Section of Crimes Act 1900 Offence Maximum Penalty/ Standard Non-Parole period Plea/ discount Indicative sentence 1 S 91H(2) Possess child abuse materials 10 years Not guilty 2 years 2 (TW) and 3 (SM) S 91G(1)(a) Use child for pornographic purposes 14 years Not guilty 18 months 4 (TW), 5 (SM), 6 (TW), 9 (TW) and 10 (SM) S 91G(1)(a) Use child for pornographic purposes 14 years Not guilty 2 years 7 (SM), 11 (LM) and 14 (LM) S 91G(1)(a) Use child for pornographic purposes 14 years Not guilty 2 years and 6 months 8 (SM) S 61M(2) Aggravated indecent assault 10 years / 8 years Guilty/ 10% 3 years with a non-parole period of 2 years and 1 month 12 (SM) S 61M(2) Aggravated indecent assault 10 years / 8 years Not guilty 18 months with non-parole period of 1 year and 1 month 13A (LM) S 61M(2) Aggravated indecent assault 10 years / 8 years Not guilty Two years, 6 months with a non-parole period of 1 year and 9 months 16 (SM) and 17 (SM) S 61M(2) Aggravated indecent assault 10 years / 8 years Not guilty 3 years with a non-parole period of 2 years and 1 month

Plea indictment Count no./ victim Section of Crimes Act 1900 Offence Maximum Penalty/ Standard Non-Parole period Plea/ discount Indicative sentence 1 and 2 (ET) S 61M(2) Aggravated indecent assault 7 years Guilty/ 15% 2 years and 1 month 3 (ET) S 61M(2) Aggravated indecent assault 7 years Guilty/ 15% 2 years and 6 months Form 1 S 61O (1) Aggravated act of indecency 5 years

Aggregate sentence: five years and six months to commence on 17 January 2011 with a non-parole period of three years and ten months

8As referred to above, the sentence was imposed on 28 March 2014. A notice of appeal was filed in the Registry on 29 April 2014 and served personally on the respondent on 30 April 2014. The Amended Notice of Appeal was filed and served on 17 June 2014. Facts 9The sentencing judge made findings of fact for the offences in the trial indictment based on the evidence at trial and summarised the agreed facts in respect of the charges on the plea indictment. These facts are set out below.

Count 1 on plea indictment (aggravated sexual assault) 10ET is the respondent's niece. The respondent, who lived with his parents in a house at Yass, had a caravan on "Chilton", a rural family property 15 kms out of Yass. Between 1 January 2003 and 31 March 2003 the respondent took ET, who was then ten, to the caravan. He asked her what she knew about sex and whether she had had sex before. ET felt uncomfortable but trusted her uncle and told him that she did not know much. 11The respondent drove ET back to his parents' house and took her to his bedroom. No one else was at home. He asked her to remove her clothes, which she did with his help. He led her to the bed and laid her down on her back. He began touching and kissing her outer vagina. He told her: "This would be easier if you spread your legs." When he had finished he said to her, "You're special. You shouldn't tell anyone about this. I could get into trouble."

Count 2 on plea indictment (aggravated sexual assault) 12A couple of days later the respondent collected ET from school and took her to "Chilton" to feed the horses. He took her to the stables as it was raining. ET was wearing a skirt, as he had asked her to do to make it easier for him to touch her. He asked her to remove her skirt and underwear. He pulled his pants down and asked her to sit on his lap. She was facing him. She saw his penis, which was erect and circumcised. He kissed her and stuck his tongue in her mouth. He rubbed his penis on the outside of her vagina by lifting her up and down.

Count 3 on plea indictment (aggravated indecent assault) and Form 1 (act of indecency) 13On another occasion in the three-month period, the respondent took ET to the riverbank at "Chilton". He touched and kissed her outer vagina. He asked her to rub his penis. ET put her hand around his penis and rubbed up and down. He said, "you need more practice" and "do it hard or faster". After a while the respondent walked away and ejaculated.

Complaint by ET and subsequent report to police 14ET said that incidents of the nature of the conduct the subject of these three counts occurred regularly over the three-month period. He would generally say to her, "It's our secret" and "don't tell anyone or I will get into trouble". At the end of the three-month period, before ET and her family moved to the Northern Territory, the respondent gave her a gold cross with gem stones in it. 15In 2009 ET confided in school friend about the respondent's conduct. This was the first time she had disclosed what had occurred. In the school holidays in July 2010 ET and her sisters were visiting their grandparents at the respondent's house. ET was on the computer looking for photographs of her horse when she opened a folder called "[respondent's] photos" and saw numerous photos of naked children. She recognised one girl as TW, the then 12-year old daughter of the respondent's girlfriend, WW. She became distressed and spoke to her uncle about it. She was encouraged to report the matter to police. She made her first statement to police on 28 August 2010.

Trial indictment 16The respondent was arrested on 17 January 2011. The police executed a search warrant and seized a computer, an SD card and hardcopy photographs. Three girls were identified: TW (who was then 14) and two sisters, LM (then aged 11) and SM (then aged 12) who were family friends of the respondent. Although TW is not the respondent's natural daughter, he has known her since birth and refers to her as his daughter and she to him as her father. TW refused to co-operate with police. LM and SM were first interviewed on 19 January 2011. 17The search of the computer resulted in an unknown number of images containing child abuse material and printed photographs depicting TW, LM and SM in pornographic poses. The respondent's car was searched. A camera located in the car contained child abuse images on the card. Police also seized a purple exercise book that contained cut-outs from magazines of children in swimming costumes. 18The respondent was convicted of possession of child abuse material (count 1 on the trial indictment). He was also convicted of the following counts (2, 4, 5, 6, 7, 9, 10, 11 and 14) of using a child for pornographic purposes. These counts arose from the photographs described in the table below which were obtained as a result of the search warrant referred to above. Count 8, aggravated indecent assault of SM, arose from a photograph and is also referred to in the table below. Count Date and ID number of photographs Victim/ age of victim at time/ description of photo 2 5 October 2009/ 1, 2 and 3 TW (12 years) naked in sexualised pose with some body paint 3 5 October 2009/ 2, 3 and 4 SM (9 years) naked in sexualised poses; some with body paint 4 7 March 2010/ 5, 6, 7, 8, 9, 10 and 11 TW (12 years) swimming naked with close up shots of genitals and breasts 5 7 March 2010/ 6, 7, 8, 9, 10 and 11 SM (9 years) swimming naked with close up shots of genitals and breasts 6 1 May 2010/ 12 and 13 TW (12 years) naked in sexualised poses; some with body paint 7 1 May 2010/ 12 and 13 SM (9 years) naked in sexualised poses; some with body paint and focusing on the genitals. Two show SM doing a handstand with the respondent's erect penis exposed over her vaginal area. 8 5 May 2010 SM (9 years) naked doing a handstand with her legs spread. The respondent's erect penis was resting on her vagina. An explicit pornographic movie was playing on the television behind her. This occurred at the respondent's parents' home in Yass. 9 26 June 2010/ 17 and 19 TW (13 years) naked in sexualised poses 10 26 June 2010/ 17 and 19 SM (9 years) naked in sexualised poses; some with body paint and focusing on genitals 11 26 June 2010/ 17, 18, 19, 20, 21 and 23 LM (10 years) naked in sexualised poses; some with body paint; focussing on the genitals

Count 12: aggravated indecent assault of SM 19On 26 June 2010 a party was held to celebrate TW's birthday at WW's home Rye Park. During the course of the party, TW, SM and LM were all nude. At one point the respondent came up behind SM, who was seated, and touched her breast.

Count 13A: aggravated indecent assault of LM 20At the same party, the respondent touched the vagina of LM, who was then ten. She was naked at the time.

Count 16: aggravated indecent assault of SM 21During the school holidays in the latter part of 2010, near a dam on his girlfriend's property, the respondent attempted to force his penis into SM's mouth. She resisted but did place her tongue on his penis. She was ten years old.

Count 17: aggravated indecent assault of SM 22At around Christmas 2010, the respondent took SM, aged 10, to his caravan at "Chilton". She was sitting on the bed and he lay on top of her. He was trying to unzip his pants. He said to her, "I want to fuck you so bad, I don't care what you say or if you scream nobody can hear you." She started screaming for her mother and the respondent stopped.

The sentence hearing 23The Crown tendered the agreed facts relevant to the plea indictment, the respondent's criminal and custodial history, victim impact statements of SM and ET and the remarks on sentence of WW. WW had been sentenced for having care of a child under the age of fourteen and allowing the child to be used for the production of pornographic material. 24SM said in her victim impact statement that she does not trust many people anymore and that she "learnt stuff she shouldn't have known as a kid" and that "he has ruined my life". ET said in her victim impact statement that she was diagnosed with severe depression and has attempted suicide several times. She suffers from flashbacks and panic attacks. She finds it extremely difficult to be intimate with a man and cannot cope with intimacy. She also finds it hard to cope with change. Neither TW nor LM provided victim impact statements. 25The respondent tendered the report of Dr Seidler, psychologist. The respondent gave oral evidence solely concerning the issue of protective custody.

The remarks on sentence 26Her Honour outlined the facts and referred to the victim impact statements and the use that can be made of them. Her Honour found that the evidence did not permit a finding that the emotional harm caused by the offences was substantial. In respect of the offences under s 61M (aggravated indecent assaults) she considered that they were "not much more than momentary touchings, three were committed without any force or coercion, and without the use of threats or pressure." 27In respect of the counts on the plea indictment her Honour found that they were objectively serious examples of aggravated sexual assault. However she accepted that sentencing patterns had moved adversely since the time of their commission and that the respondent ought to be sentenced in accordance with previous patterns. 28Her Honour was satisfied that the offences were aggravated as the respondent abused his position of trust. However, her Honour rejected each the following aggravating features relied on by the Crown: (1)The injury, emotional harm, loss or damage caused by the offences is substantial in respect of SM and ET; (2)The victims were vulnerable because they were very young; (3)The offences involved multiple victims or a series of criminal acts; and (4)The offences were part of a planned or organised criminal activity. 29Her Honour found, in respect of all offences, that the evidence did not permit her to find that the emotional harm caused by the offences was substantial. Her Honour referred to the principles for taking into account victim impact statements set out in R v Slack [2004] NSWCCA 128 by Sperling J at [58]-[62], Simpson J agreeing. 30The sentencing judge summarised the respondent's subjective circumstances in substantial detail and relied on the report of Dr Seidler, psychologist and the respondent's evidence at the sentence hearing. Her Honour made the following findings about his subjective circumstances. 31The respondent was born on 10 November 1971 and was 42 when sentenced. He had no criminal record. He grew up on a family farm in a financially stable environment with both parents and three older siblings. He said that although he was shown kindness and appropriate care by his parents he was the subject of emotional abuse at the hands of his siblings and as a result he was an isolated and unhappy child who spent much of his time alone. He was bullied throughout his school years but in secondary school he had friends and was reasonably comfortable socially during those years. His academic performance was average. He completed Year 11. 32He has helped his father on the family property or worked odd jobs, involving farm labouring and maintenance. For two years before being incarcerated he worked as a packer at Bunnings Trade Centre in Canberra. He has continued to live with his parents despite being in a long term relationship as it was convenient and close to his work. He was financially independent. He has not abused substances. 33He had no contact with his siblings at the time of the interview. He still enjoyed the support of his mother and spoke to his father occasionally. He reported to Dr Seidler that upon his release he intended to work for his father-in-law on his rural property. 34He had little sexual contact with anyone until his relationship with WW in his thirties. He reported that she has been his only sexual partner. He identified as a heterosexual and described to Dr Seidler being maximally attracted to young adult women and peer aged women but he also endorsed sexual attraction across the lifespan from moderate interests in both pre and post-pubertal female children to older adult women. Dr Seidler thought this was of concern. Dr Seidler noted that the respondent's understanding of what constituted child sexual abuse was unsophisticated as was his insight into possible victim impact. The respondent alleged that he and his wife had actively practised nudism in the family home and had done so for years. He denied that it was sexually motivated. 35Dr Seidler found the respondent's account of his offending behaviour was generally distorted, irresponsible and implausible such that he minimised his behaviour, blamed his victims and denied any sexual intent. 36Dr Seidler assessed the respondent's mental health and personality and found that because of the considerable and deliberate distortion his profile could not be interpreted as a realistic representation of his functioning or symptom experience. Dr Seidler concluded: "it is my opinion that [the respondent's] sexual offending behaviour probably represents the culmination of a long-standing pattern of deviant sexual interests coupled with poor self-esteem, limited relationship experience, poor emotional coping skills and social awkwardness and anxiety which has prevented him from exploring other relationships." 37Dr Seidler considered the respondent to be at moderate risk of re-offending by reason of his age-inappropriate and deviant sexual interests, in addition to his problematic thought patterns and affective/social concerns. In her view treatment would be a challenging process but that he would profit from treatment if he were willing to engage and participate and this would improve his prognosis through the development of insight and appropriate risk management strategies. 38Her Honour accepted the respondent's evidence that he has been, and will remain, in a form of protective custody until he is released to parole and as a result his movement has been and will be restricted. 39The sentencing judge set out the indicative sentences in accordance with the requirements of 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999. 40Her Honour, having announced in the remarks on sentence the indicative sentences that would have been imposed, said as follows before pronouncing the aggregate sentence: "Madam Crown submitted that there must be at least some partial accumulation to reflect the totality of the criminality in these matters. I agree. I intend to impose an aggregate sentence and will reflect in that sentence a measure of accumulation to reflect the fact that there was [sic] separate victims and separate occasions." 41Her Honour did not, however, explain the aggregate sentence in light of the indicative sentences and in particular did not explain why she thought such a substantial degree of implicit concurrence was appropriate having regard to the range of offences, the time period over which they occurred and the number of victims. 42Her Honour found special circumstances and adjusted the statutory ratio accordingly from 75% to approximately 70%.

The relevant principles 43A claim of manifest inadequacy requires the Crown to establish that the sentences imposed were unreasonable or plainly unjust, having regard to the principles that there is no single "correct" sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v R (2000) 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58]. 44Whether a sentence is manifestly inadequate is a conclusion. It is not necessary to identify any particular error in the process; it is the examination of the result that leads to the conclusion. Nonetheless it can be helpful to ascertain why and how the sentence was arrived at since this inquiry may explain the conclusion and expose the reason for any manifest inadequacy.

Whether the sentence was manifestly inadequate 45The respondent's crimes warranted substantial punishment and unconditional denunciation. He abused the trust that the young girls reposed in him. He not only corrupted them for his own sexual gratification but he also used their bodies to create permanent records by photographing them in sexualised poses. He committed a total of 19 offences involving 4 victims aged between 8 and 12 and on at least 9 occasions in circumstances where her Honour found that he had no remorse and his prospects of rehabilitation were not good. 46As the Crown does not contend that the indicative sentences were inadequate, the assessment by the sentencing judge of the objective seriousness of each of the offences does not arise for review. The circumstances in which such review would be undertaken are, in any event, limited: see the authorities referred to in Kaminic v R [2014] NSWCCA 116 at [46]-[47] per Fullerton J, Ward JA agreeing. At least some of the sentences indicated, in particular those for which the standard non-parole period applied and for which the respondent was convicted at trial, were, in my view, outside the lower end of the range, having regard to the objective seriousness of the offences, unmitigated by any relevant circumstances pertaining to the respondent. However, I consider myself to be obliged to accept that each of the indicative sentences was within the appropriate range because the Crown did not wish to be heard to the contrary. 47Nor is there, in these circumstances, any need to review her Honour's assessment of the difference in sentencing patterns for such offences between the time of the offending and the time at which the sentence was imposed since such difference is accommodated in the indicative sentences. 48As referred to above, her Honour did not consider the evidence to permit the inference that the victims suffered substantial emotional harm. The correctness of this finding, by reason of the limited challenge made by the Crown, does not arise for review. However, before addressing the substantive challenge, I propose to make some observations about this finding, since it tends to imply, contrary to the fact, that these offences were not particularly serious.

The finding regarding the harm to the victims: the relevance of victim impact statements 49It is of the nature of the offences of which the respondent was convicted that the victims suffer emotional harm and in many, if not most, cases the harm may fairly be described as substantial. The damage done to children who are the victims of sexual assault and other sexual abuse by adults is well known and can be assumed. The maximum sentences imposed by Parliament, and, more recently, the stipulation of standard non-parole periods, are indications of the seriousness of the offences, adjudged by the harm they generally, if not inevitably, cause. Her Honour's finding was, however, made in the context of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, which provides that it is an aggravating factor if the victim, relevantly, suffers substantial emotional harm. This provision is of general application in that it applies to sentencing generally and not merely to sentencing offenders who have committed sex offences against children. 50The victim impact statements of SM and ET comprised relevant evidence of the harm to them. Although there are, as Sperling J said in R v Slack, limits to the use to which victim impact statements can be put, it is important to have regard to the content and purpose of the relevant statutory provisions. Section 30A of the Crimes (Sentencing Procedure) Act 1999 permits a victim to read, or to have read out by another, a victim impact statement. The section does not appear to contemplate that the author of the statement will be cross-examined. A sentencing judge is entitled to receive and consider victim impact statements (as her Honour did in the instant case) under s 28(1) of the Crimes (Sentencing Procedure) Act 1999. Such statements have been described by this Court as "a particular species of evidence available to a sentencing judge": R v Wilson [2005] NSWCCA 219 at [25] per Simpson J, Latham J agreeing. 51Section 29(3) of the Crimes (Sentencing Procedure) Act 1999 (which is relevant in the cases of TW and LM) provides that the absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim. 52One of the purposes of such statements is to inform the sentencing judge of the harm suffered by the victim and, accordingly, whether it amounts to substantial emotional harm within the meaning of s 21A(2)(g) of Crimes (Sentencing Procedure) Act 1999. As Hunt CJ at CL said in R v Previtera (1997) 94 A Crim R 76: In cases where the victim is still alive - that is, the victim directly injured by the offender's criminal act - victim impact statements will no doubt serve the useful purpose in the criminal courts of establishing the consequences of the crime upon that victim. 53The victims' statements were tendered without objection. No argument was addressed to what weight ought to be attributed to them. Their contents were closely in accordance with the expected consequences of conduct such as the respondent's. It is difficult to understand why her Honour was not prepared to infer, on the basis of the statements, that the victims suffered substantial emotional harm as a result of the offending conduct.

The substantive challenge: inadequate accumulation 54As referred to above, the Crown confined its challenge to the sentence to what it submitted was a wholly inadequate degree of accumulation of the indicative sentences. The Crown contended that although the degree of accumulation is generally discretionary, the level of implicit concurrence led to there being no effective punishment for much of the offending conduct. 55Her Honour was entitled to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 rather than imposing a separate sentence in respect of each offence under s 53 of the Crimes (Sentencing Procedure) Act 1999. The benefit of an aggregate sentence in the present case is that it obviates the need to specify commencement and expiry dates for each sentence, while maintaining transparency by indicating the sentences that would have been imposed for each offence had separate sentences been imposed: R v Nykolyn [2012] NSWCCA 219 at [55] - [60] per RA Hulme J. The difference between imposing multiple sentences for offending conduct rather than an aggregate sentence is, in substance, procedural. 56In the second reading speech for the Crimes (Sentencing Procedure) Amendment Bill 2010 (which inserted what became s 53A), the Honourable Michael Veitch on behalf of the then Attorney General stated: "The reasons for setting out the precise details of each sentence are to ensure transparency, reflect criminality and ensure that victims get due recognition. This also makes it easier to adjust an overall sentence when one sentence is changed on appeal. Those principles remain important, but in order to simplify the sentencing process for the judiciary, and for the community's understanding of it, the Government has decided to remove the requirement to specify the precise detail of any overlap between the sentences by allowing it to set one overall sentence and one non-parole period, provided that the court first indicates the appropriate sentence that would have been given for each offence had it been sentenced individually. The amendments will allow the judge to approach sentencing for multiple offences in a simple way when appropriate and lead to a sentence which is simpler and more easily understood by all." (New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010 at 27867) 57Section 53A of Crimes (Sentencing Procedure) Act 1999 was inserted to avoid the somewhat involved process required for sentencing for multiple offending referred to in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [43] - [49] per McHugh, Hayne and Callinan JJ. Unless s 53A is used and an aggregate sentence imposed, commencement and expiry dates that are without practical effect are required to be specified for each offence. 58The imposition of an aggregate sentence is, however, not to be used to minimise the offending conduct, or obscure or obliterate the range of offending conduct or its totality. This is, in my view, what has occurred here. In R v Wheeler [2000] NSWCCA 34 at [36]-[37] (approved in R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46]) Sully J said: "...[There] is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose." 59The large measure of implied concurrence between the indicative sentences that is implicit in the aggregate sentence imposed fails, in my view, to acknowledge the separate harm done to each child by the respondent's different criminal acts and the separate harm done to each of the children: see Carlton v R [2014] NSWCCA 14 at [87]-[89] per R A Hulme J, citing Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 and R v Gorman [2002] NSWCCA 516; 137 A Crim R 326. 60The imposition of an aggregate sentence relieved the sentencing judge of specifying commencement dates and expiry dates for all offences and thereby spared her Honour the task of setting out the extent to which there was concurrence between sentences for different offences against different victims and well as between similar offences against the same victims. It did not, however, relieve her Honour of imposing a sentence that was proportional to the totality of the offending conduct. 61I accept the Crown's submission that the sentencing judge has imposed a sentence that was manifestly inadequate by reason of the degree of concurrence implicit in the aggregate sentence when compared with the indicative sentences. In my view, the aggregate sentence imposed was manifestly inadequate to reflect the totality of the offending conduct having regard to its objective seriousness.

Residual discretion 62This Court retains a residual discretion in the exercise of its jurisdiction under s 5D of the Criminal Appeal Act to refuse to interfere in a sentence, even if error has been demonstrated and manifest inadequacy established: Griffiths v The Queen (1977) 137 CLR 293; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462. 63This Court is obliged to consider the exercise of the residual discretion: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]; Reeves v The Queen [2013] HCA 57 at [10], [12], [60]-[61]. 64Mr Coady, on behalf of the respondent, submitted that it was appropriate to exercise the residual discretion in the present case. He relied on two affidavits, of Ms Dean sworn 15 September 2014 and of the respondent sworn 15 September 2014. The evidence establishes that the applicant has been assaulted twice while in custody. Mr Coady submitted that the evidence also showed that the respondent has developed insight into his offending conduct which means that he now suffers from remorse and that his prospects of rehabilitation have improved. I do not accept this submission. That the respondent was initially prepared to divulge that he coped with depression by thinking about TW but that he no longer makes such disclosures is consistent with his appreciating that such disclosures are adverse to his interests. It does not, without more, establish either remorse or insight. 65Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for protection of the public and the denunciation of the respondent's conduct in the present case would not, in my view, be served by an exercise of the residual discretion. 66Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The deterrent effect of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating such an element in a sentence is to maintain public confidence in the administration of justice: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [82] per McHugh J; R v Loveridge [2014] NSWCCA 120 at [264] 67Offences by men against children to whom they have access by reason of familial ties and the bonds of friendship with the children's parents, as in the present case, are particularly heinous because their commission tends to threaten and abuse the trust that such children are entitled to repose in those who ought reasonably be expected to nurture and protect them. 68In my view, the sentence imposed was such as to create the impression that the purposes of sentencing, as provided by s 3A of the Crimes (Sentencing Procedure) Act 1999, namely, the punishment of the respondent and the protection of the victims and others like them, could be achieved by a sentence which implied a very substantial degree of concurrency between indicative sentences, for offences involving different children over an extended period of time which were prosecuted on two separate indictments. This Court is, in my view, obliged to correct that impression by re-sentencing the respondent. 69In my view, the sentence that ought to be imposed is an aggregate sentence of nine years with a non-parole period of six years and nine months. 70On re-sentence, the ratio between the total term of the aggregate sentence and the aggregate non-parole period conforms to the statutory ratio of 75% (s 44(2) of Crimes (Sentencing Procedure) Act 1999) since I do not accept that there was a proper basis for the finding of special circumstances made by the sentencing judge. In any event, the period of parole on re-sentence is greater than that allowed under the sentence imposed by her Honour. Accordingly, any need for supervision in the community is accommodated by the re-sentence.

Proposed orders 71The orders I propose are: (1)Appeal allowed. (2)Quash the sentence imposed by Flannery DCJ on 28 March 2014 and in lieu thereof: (a)Impose a sentence of nine years with a non-parole period of six years and nine months; and (b)Note that the earliest time the respondent is eligible to be released is 17 October 2017.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2014

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