Court of Appeal (Qld)|2008-12-12|Before: Muir and Fraser JJA and Fryberg J, Separate reasons, for judgment of each member of the Court, Muir and Fraser JJA concurring as to, the orders made, Fryberg J dissenting, in part
Muir and Fraser JJA and Fryberg J, Separate reasons, for judgment of each member of the Court, Muir and Fraser JJA concurring as to, the orders made
Catchwords
APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR
INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
–
applicant pleaded guilty to 85 State and three Federal offences – offences
Source
Original judgment source is linked above.
Catchwords
APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FORINTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE–applicant pleaded guilty to 85 State and three Federal offences – offencesincluded multiple counts of rape, incest,indecent treatment, makingobjectionable computer games, possessing child exploitation material and using acarriage service to distributechild abuse and child pornography material– on the most serious State offences the applicant was sentenced to 15years imprisonmentfor two counts of rape and four counts of incest to be servedconcurrently – in relation to Federal offences applicant sentencedtothree terms of imprisonment on three counts relating to the use of a carriageservice, those Federal sentences to be served cumulativelyon each other Federalsentence totalling four years and served concurrently with each of the Statesentences – whether in thecircumstances the sentences were manifestly
excessive – discussion of the interaction between the State and Federal
sentencing
regimes – discussion of the correct sentencing structure to be
used when sentencing for both State and Federal offences
Crimes Act 1914 (Cth), s 16F, s 17A, s 19AB, s 19AJ,
s 19AL, s
19AM, s 20
AB v The Queen (1999) 198 CLR 111
[1999] HCA 46,
cited
R v Arnold
ex parte A-G (Qld) (2002) 134 A Crim R
151
[2002] QCA
357, discussed
R v D [2003] QCA
88, discussed
R v Daswani (2005) 53 ACSR 675
[2005] QCA
167, cited
R v Dickeson
ex parte A-G
R v Dickeson [2004] QCA
78, discussed
R v GAE
ex parte A-G (Qld) [2008] QCA
128, followed
R v Jones (1999) 108 A Crim R 50
[1999] WASCA 24,
cited
R v McMillan [2005] QCA
93, cited
R v Nagy [2004] 1 Qd R 63
[2003] QCA
175, discussed
R v Plunkett [2006] QCA
182, cited
R v RAC [2008] QCA
185, discussed
R v Robinson [2007] QCA
99, distinguished
R v To & Do
ex parte Cth DPP [1999] 2 Qd R
166
[1998]
QCA 106, cited
R v Wharley (2007) 175 A Crim R 253
[2007] QCA
295, cited
Judgment (209 paragraphs)
[1]
Separate reasons for judgment of each member of the Court, Muir and Fraser JJA concurring as to the orders made, Fryberg J dissenting in part
[2]
Application for leave to appeal granted.
Appeal allowed.
Vary the sentences imposed in the District Court in the way set out in the following paragraphs.
The sentences imposed on the counts of rape (counts 56 and 57) and incest (counts 60, 61, 62 and 64) in the State indictment (57/08) be set aside and in lieu of those sentences the applicant be sentenced to 10 years imprisonment on each of those counts, each of those sentences to be served concurrently with each other and with the sentences imposed in the District Court for the other offences on the State indictment.
Declare that the convictions of the offences in counts 56, 57, 60, 61, 62 and 64 in the State indictment are convictions of serious violent offences.
Set aside the orders made in the District Court that the three terms imposed in the District Court on the counts in the Commonwealth indictment (56/08) be served cumulatively upon each other but concurrently with the head sentence of 15 years on the State charges and that the applicant be released after serving 24 months upon his giving security by recognizance in the sum of $1,000 on the condition that he be of good behaviour for a period of two years.
Instead of those orders:
(a) Order that the term of imprisonment of 18 months imposed in respect of count 1 in the Commonwealth indictment commence immediately after the applicant has served eight years of the 10 year term of imprisonment imposed in respect of the State indictment.
(b) Order that the term of imprisonment of 12 months imposed in respect of count 2 in the Commonwealth indictment commence immediately after the applicant has served the term imposed for count 1 in the Commonwealth indictment.
(c) Order that the term of imprisonment of 18 months imposed in respect of count 3 in the Commonwealth indictment commence immediately after the applicant has served the term imposed for count 2 in the Commonwealth indictment.
(d) Fix a single non-parole period of one year in respect of counts 1, 2 and 3 in the Commonwealth indictment; and
(e) Direct that the Registrar reduce this order to writing and cause a copy to be given to the applicant, together with the explanation required by s 16F(1) of the Crimes Act1914 (Cth).
Direct that there be entered in the records of the District Court in respect of counts 1, 2 and 3 in the Commonwealth indictment the statement that because of the seriousness of the offending no sentence is appropriate other than a sentence of imprisonment.
Set aside the declaration as to imprisonment already served pursuant to the sentences imposed in the District Court on 8 February 2008.
In respect of the terms of imprisonment imposed in the District Court as varied by these orders:
(a) State that the applicant was held in presentence custody between 10 August 2006 and 8 February 2008, a period of 547 days.
(b) Declare that that time is time already served under the sentences for the counts in the State indictment.
(c) Declare that none of that time is taken to be imprisonment already served under the sentences for the counts in the Commonwealth indictment.
(d) Direct that the Chief Executive Officer (Corrective Services) be advised of these declarations and their details.
[3]
APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - applicant pleaded guilty to 85 State and three Federal offences - offences included multiple counts of rape, incest, indecent treatment, making objectionable computer games, possessing child exploitation material and using a carriage service to distribute child abuse and child pornography material - on the most serious State offences the applicant was sentenced to 15 years imprisonment for two counts of rape and four counts of incest to be served concurrently - in relation to Federal offences applicant sentenced to three terms of imprisonment on three counts relating to the use of a carriage service, those Federal sentences to be served cumulatively on each other Federal sentence totalling four years and served concurrently with each of the State sentences - whether in the circumstances the sentences were manifestly excessive - discussion of the interaction between the State and Federal sentencing regimes - discussion of the correct sentencing structure to be used when sentencing for both State and Federal offences
D L Meredith for the respondent, Director of Public Prosecutions (Queensland)
[21]
P Huygens for the respondent, Director of Public Prosecutions (Commonwealth)
[22]
[1] MUIR JA: Subject to the qualification expressed below, I agree with the reasons of Fraser JA and with the orders he proposes.
[23]
[2] I consider, with respect, the sentencing structure proposed by his Honour to be appropriate and to have the advantage of avoiding the possibility of non-compliance with the requirements of the Crimes Act 1914 (Cth).
[24]
[3] I would prefer, however, to leave to an occasion on which the Court has had the benefit of full argument, the question of whether and/or to what extent, in circumstances such as those referred to in paragraph [74] of his Honour's reasons, it is impermissible, as opposed to undesirable, to increase a sentence for the most serious State offence to take into account the offender's overall criminality in respect of offences including a Commonwealth offence.
[25]
[4] FRASER JA: On 7 February 2008 the applicant was convicted in the District Court on his pleas of guilty to three Commonwealth offences and 85 State offences. The sentences of imprisonment imposed upon the applicant on 8 February 2008 are set out in the following table:
[26]
1-50 28/9/04-24/12/04 Selling an objectionable computer game 6 months
[27]
63, 65, 66 67 28/2/05-1/5/05 Indecent treatment of a child under 16
[28]
68-84 28/2/05-1/5/05 Making an objectionable computer game 2 years
[29]
85 10/8/06 Possess child exploitation material 12 months
[30]
1 31/3/05-3/5/06 Using a carriage service to distribute
[31]
3 31/3/05-9/2/06 Using a carriage service to distribute
[32]
[5] Each of the State sentences was ordered to be served concurrently with each other State sentence. The sentencing judge declared a total 547 days which the applicant had served in pre-sentence custody between 10 August 2006 and 8 February 2008 to be imprisonment already served pursuant to the sentences. The sentencing judge also recommended that the applicant be offered the sexual offenders treatment program whilst he was in custody.
[33]
[6] Each of the Federal sentences was ordered to be served cumulatively upon each other Federal sentence, making a total Federal sentence of four years. The sentencing judge ordered that the applicant be released after serving 24 months of that sentence upon his giving security by recognizance in the sum of $1,000 conditioned that he be of good behaviour for a period of two years. The Federal sentences were ordered to be served concurrently with the State sentences.
[34]
[7] The applicant applied for leave to appeal against all of the sentences, although his submissions focussed upon the sentences of 15 years imprisonment for the offences in counts 56, 57, 60, 61, 62 and 64 of the State indictment.
[35]
[8] The complainant was born on 15 April 1999. The applicant met the complainant's mother when the complainant was 18 months old and the applicant and the complainant's mother married in October 2005. The complainant looked upon the applicant as being her father: he was the only father figure she knew. The complainant had two siblings, a sister about a year older than the complainant and a brother (the son of the applicant and the complainant's mother) about three years younger than the complainant.
[36]
[9] During two separate episodes about one week apart in about March 2005 the applicant, who was then 27 years old, raped (counts 56 and 57), committed incest with (counts 60, 61, 62, 64) and indecently dealt with (counts 51-55, [1] 58, 59, 63, 65, 66, 67) the five year old complainant. As was clear to the complainant at the time, the applicant made videos of that sexual abuse. The applicant took steps to disguise the location. He also disguised his and the complainant's identities: the applicant's face is not shown and the complainant's face is obscured on the videos.
[37]
[10] The complainant did not want to do the things that the applicant made her do and, when interviewed, she found them difficult to talk about. The sexual abuse charges (the rape, incest, and indecent dealing charges) were formulated on the basis of the applicant's admissions which corresponded with the 17 video files that were found in the applicant's possession after he was arrested in August 2006.
[38]
[11] Both episodes of sexual abuse happened in the applicant's and complainant's mother's bedroom at a time when the complainant's sister was staying elsewhere, her brother was asleep, and her mother was away from the house.
[39]
[12] Before the first episode the applicant became "worked up", so he admitted to police, after looking at pornographic material on his computer in his bedroom. He called the complainant to the bedroom, told her to undress, had her position herself as he wished, and indecently dealt with her in various ways including by rubbing his penis against her, unsuccessfully attempting anal penetration, making her perform oral sex on him (there was no ejaculation) and making her masturbate him (he subsequently masturbated himself to ejaculation). After that series of events, which lasted for a short time, the applicant apologised to the complainant, assisted her in dressing herself, and told her that what happened was a bad secret and that if anyone found out he could get into trouble.
[40]
[13] About a week later the applicant again became "worked up" after watching pornographic material on his computer, again made the complainant undress, and again engaged in indecent dealings with her. He raped the complainant twice on this occasion, each time causing her to perform oral sex upon him (no ejaculation occurred). He also penetrated the complainant's anus with his penis, causing her considerable pain, on four separate occasions during this second episode of offending. After the applicant engaged in other indecent treatment of the complainant he left the bed to adjust the angle of the camera and then returned to cause the complainant to masturbate him. He then indecently dealt with her again, on this occasion ejaculating on her back. The applicant wiped the semen off her back before assisting the complainant to dress. He again apologised to her, told her that what had happened was a bad secret, and said that if anyone found out he would get into trouble.
[41]
[14] The complainant told police that after she had removed her clothes as required by the applicant's instructions she started crying and told him she did not want him to do it and that it was rude. The applicant replied that she had to just do it. The complainant suffered pain when her anus was penetrated and she was sore for sometime afterwards. The complainant did not sustain any lasting physical injury but the victim impact statement made by her mother on her behalf speaks of the predictably serious adverse psychological consequences for the complainant of the applicant's offending, including the complainant's having become violent and angry, requiring specialised child sexual abuse counselling. The complainant's sister and her mother also suffered adverse psychological effects, again predictably.
[42]
[15] It was submitted on behalf of the applicant at the sentencing hearing and not contradicted on behalf of the respondents that the first episode occupied a matter of minutes and the second episode occupied up to 10 minutes or so.
[43]
[16] As I have indicated, the applicant produced a total of 17 separate video files depicting his rapes and other sexual abuse of the complainant during the two separate occasions (counts 68-84, each of which charged a contravention of s 27(3) of the Classification of Computer Games and Images Act 1995 (Qld), the maximum penalty for which was five years imprisonment).
[44]
[17] Subsequently, on some 33 separate occasions the applicant sent those video files to addresses in Australia and elsewhere in the world, including in the United States, Germany and France (Commonwealth count 3). (The maximum penalty for this and the other Commonwealth offences was 10 years imprisonment.) In the text of many of the applicant's emails distributing the video files he wrote obscenely about their content, sometimes indicating that he sought similar extremely offensive material in exchange and sometimes indicating his strong desire to engage in the same and other perversions. (He also claimed to have engaged in sodomy with a young nephew and niece. At the sentence hearing that was said to be a false claim. He was not charged with any such offence, he was sentenced on the footing that it was a false claim, and his application in this Court must be considered on that same basis.)
[45]
[18] Before the applicant sexually abused the complainant he had sent some 50 separate emails to a large number of people attaching images and videos of young children engaged in sexual activities with adults and other children and of children posed in a sexually explicit manner (State counts 1-50, each of which charged the applicant with selling an objectionable computer game contrary to s 24 of the Classification of Computer Games and Images Act 1995 (Qld), for which the maximum penalty was six months imprisonment).
[46]
[19] After the applicant's sexual abuse of the complainant, the applicant sent some 90 separate emails to various addresses attaching and sometimes commenting obscenely upon images or videos containing similar child pornography (Commonwealth count 1). In some of those emails he sought the production of child abuse material showing a young female being anally penetrated by a male.
[47]
[20] The remaining two counts concern the applicant's possession of child abuse material and child exploitation material. On or about 29 June 2005 the applicant received by email (commencing "re your message earlier ...") a book (in electronic format) which remained in the applicant's email account until it was found upon execution of a search warrant over a year later (Commonwealth count 2). The book, which included purported names, ages, dates and details of sexual abuse, torture and murder of children and others, is possibly the most offensive and violent text form of child abuse material imaginable. It is to be inferred that it was made available to the applicant in response to one of his various requests in his numerous emails to be supplied with shocking child exploitation material of that general kind, although the book perhaps exceeds in its depravity even anything that the applicant had specifically requested. The sentencing judge accepted that the applicant received it not knowing what was in it and that he did not forward it to anyone else: the application in this Court is to be considered on that basis.
[48]
[21] Finally, when the applicant was arrested on 10 August 2006 a USB storage device in his possession contained more than 50 images of offensive child exploitation material (count 85, which charged a contravention of s 228B of the Criminal Code, the maximum penalty for which was 10 years imprisonment). The images were of young children, some as young as six years old and some of whom were being sexually penetrated.
[49]
[22] It is clear that the applicant adopted various strategies when sending and receiving child exploitation material in an endeavour to make his detection and identification more difficult and he communicated such strategies to those to whom he sent child abuse and child pornography material.
[50]
[23] When the applicant was interviewed by police in August 2006 after his arrest he made detailed admissions of his sexual abuse offences which, as I mentioned earlier, corresponded with videos in his possession seized by police.
[51]
[24] The applicant was aged between 27 and 29 years when he committed the offences and he was 30 years of age when he was sentenced. His criminal history included possessing property reasonably suspected of being tainted property (in February 2000) for which no conviction was recorded and he was given a small fine and obstructing a police officer (in February 2004) for which he was convicted and given a small fine.
[52]
[25] More relevantly the applicant had also been convicted of possession of an objectionable computer game between 1 September 1998 and 1 April 1999. He was convicted of that offence in the Magistrates Court in Cairns on 25 February 2000 and fined $600. The facts were that he had images of "tiny girls" being anally penetrated which he had sought out, viewed, and downloaded to a disk which he had then loaded onto his computer. He told police he had done that on a number of occasions, probably two occasions with a total of about eight images, and that he had since destroyed the disks and thrown them away. The images also included pre-teen female children engaging in oral sex with adult males.
[53]
[26] At the sentence hearing the applicant relied upon a report of a psychiatrist. The report recited that when the applicant was seven years old he was sexually abused by his uncle (his father's brother). The uncle was prosecuted for that offending. The applicant later attempted, unsuccessfully, to make a career out of playing rugby league. The applicant told the psychiatrist that there was a culture in the applicant's rugby league club where women were objectified and used and where pornography was openly accessed and enjoyed, but that was not child pornography.
[54]
[27] The applicant also told the psychiatrist that he first became involved in viewing child pornography in 1998 after the failure of his intended career in rugby league: that offending led to the February 2000 conviction and sentence mentioned above. The failure of that career adversely affected the applicant's father's view of the applicant (or, at least, the applicant's perception of that) and that in turn diminished the applicant's self esteem. In about 2002 the applicant began once again to access pornographic material on the internet, including child pornography, and he became involved in exchanging pornographic photographs involving children.
[55]
[28] The applicant's father, who had been diagnosed with cancer in 2004, died in January 2005, which exacerbated the applicant's sense that he had failed. The applicant said that after becoming depressed as a result of watching video tapes he had taken at his father's funeral he engaged in the abuse of the complainant described earlier. He said that he filmed those events because he had become accustomed to it in the child pornography he had been viewing.
[56]
[29] The psychiatrist expressed the opinions that the applicant was not clinically depressed and did not appear to be unduly anxious, and that his intelligence was within the normal range and possibly towards the upper end of that range. The applicant made no attempt to shift responsibility for his offending, he sought to understand why he had committed the offences, he understood how his offending adversely impacted on the complainant (partly as a result of the applicant's considerable reading in prison about "self help and the effects of sexual abuse on the victim"), he experienced "abject guilt" about his offending, he expressed no self pity, and he had a positive attitude towards attending a sexual offenders treatment program.
[57]
[30] The psychiatrist opined that the applicant's own experience of sexual abuse had a bearing on his offending and that whilst the applicant knew what he was doing to the complainant was wrong whilst he was doing it, his awareness of the enormity of what he was doing "may have been less clear to him by reason of the quality of his own experience of having been sexually abused."
[58]
[31] At the sentence hearing counsel for the State submitted that the appropriate range of head sentences for the rape and incest counts, taking into account the related conduct of making and distributing the videos the subject of counts 68-84 and Commonwealth count 3, was 14 to 16 years imprisonment. Her submission was that this range was to be derived from a decision of the District Court and from decisions of this Court, namely R v D [2003] QCA 88, R v Dickeson; ex-parte A-G; R v Dickeson [2004] QCA 78 and R v Robinson [2007] QCA 99.
[59]
[32] Counsel for the Commonwealth submitted that appropriate sentences for the Commonwealth counts were 18 months imprisonment for count 1 (distribution of child pornography material), 12 months imprisonment for count 2 (accessing the child abuse material in the form of the book) and 18 months imprisonment for count 3 (distribution of child abuse material) to be served cumulatively, thus giving a total head sentence for the Commonwealth offences of four years. He submitted that, bearing in mind that the Commonwealth offences involved some degree of overlap with matters that would be taken into account in fixing sentences for the State charges, the overall sentence should be structured so as to allow for an additional year to serve for the Commonwealth offences over and above the period of time to be served in prison for the State offences.
[60]
[33] Counsel for the applicant submitted that the sentence could be structured either by imposing a four year federal sentence to be served concurrently with the state sentence save for an additional year "on top" of the appropriate state sentence (as the Commonwealth had contended) or, preferably, by imposing a head sentence for the offending as a whole, including the Commonwealth offences, with the separate sentences for all other offences to be served concurrently. She submitted that an appropriate overall sentence for all of the offending charged in the State and Commonwealth indictments would be in the vicinity of 10 years imprisonment, on the footing that the result of the relevant Queensland legislation would be that the applicant would be required to serve 80 per cent of that term of imprisonment.
[61]
[34] After summarising the circumstances of the offences and the applicant's personal circumstances which I have outlined above, the sentencing judge observed that the whole of the applicant's offending involved a perverted sexual fantasy life which he eventually put into practice by cruelly abusing his own step-daughter; that he filmed that abuse and distributed it on the internet, and that those images, which went out internationally, could never be retrieved; that the applicant's abuse of his step-daughter was a gross breach of trust that she had in him because she considered him to be her father, and also a gross breach of trust that the complainant's siblings and mother had in the applicant as a father of the family; and that the applicant's offending had had a dramatic and devastating impact on the family as a whole.
[62]
[35] The sentencing judge also referred to the matters that were in the applicant's favour. Once the applicant was apprehended he made admissions to police. He pleaded guilty to ex-officio indictments. There was no suggestion that he would contest the charges or require his step-daughter or anyone else to give evidence (although, as the judge also observed, the evidence against the applicant was cogent and damning). The sentencing judge took into account that the applicant was only 30 years of age and the factors in the applicant's background mentioned in the psychiatrist's report; that the applicant's sexual abuse of the complainant occurred in two separate incidents a week apart each of which was of relatively short duration; that there were no threats or gratuitous violence involved; and that there were no lasting physical injuries.
[63]
[36] The sentencing judge accepted that it appeared from the psychiatrist's report that the applicant was aware of the severity of the charges, accepted responsibility for his behaviour, was making attempts to understand why he had behaved as he did, was not engaging in self pity, and had a positive attitude towards treatment. The sentencing judge accepted that the applicant's remorse was genuine and that he wanted to take steps to ensure that he did not offend again, and that he had already taken some steps to address his offending behaviour.
[64]
[37] The applicant does not challenge any of those observations.
[65]
[38] The sentencing judge also observed that the psychiatrist's assessment of the applicant as an intelligent and insightful person meant that at the time of the offending, even though the applicant might have been in an emotionally troubled state, "you nevertheless knew precisely what you were doing and you appreciated the seriousness of it."
[66]
[39] The sentencing judge concluded that the appropriate sentencing approach was to sentence the applicant for the whole of his behaviour so as to include both the behaviour which offended against Commonwealth law and the behaviour which offended against State law, and to make the other penalties concurrent.
[67]
[40] The sentencing judge then referred to the decisions cited by the State prosecutor and said that, having regard to the principles of sentencing and those comparable decisions, the appropriate range was between 10 and 18 years for the head sentence. The sentencing judge concluded that the nature and amount of offending put the case at the upper end of that scale, but that the applicant was entitled to a significant discount because of his pleas of guilty to ex-officio indictments and his cooperation with authorities. For those reasons the judge decided that a head sentence of 15 years imprisonment was the appropriate penalty.
[68]
[41] The applicant contends that the appropriate head sentence is in the range of nine to nine and a half years, representing some eight to eight and a half years for the most serious offences (the sexual offences in the state indictment) and another year "on top" for the Commonwealth offences. The respondents support the sentences imposed below.
[69]
[42] The applicant does not challenge the individual sentences and orders imposed in respect of the Commonwealth offences or the overall Federal sentence of four years. His counsel also accepts that it was appropriate for there to be "a year on top" for the Federal sentence as suggested by the Commonwealth prosecutor, that is to say, a year added to whatever was the appropriate State sentence. However the applicant's submissions give rise to questions about the structure of the Federal and State sentences. I will return to that topic after I have discussed the applicant's contention that the sentence of 15 years is manifestly excessive.
[70]
[43] The applicant contends that the sentencing judge erred in sentencing on the basis that when the applicant committed the sexual offences he intended to distribute the videos he made of his offending. His counsel argues that the fact that the applicant did not distribute the first of the video files until some six months after he committed his sexual abuse offences supports that contention. I reject the argument. In my opinion it strains credulity beyond breaking point, particularly when regard is had to the applicant's earlier conduct of possessing, sending, and seeking images and video files depicting similar sexual abuse of young children of a similar age to the complainant and his later conduct in distributing the videos he made of his own offences.
[71]
[44] In my opinion it was appropriate for the sentencing judge to sentence the applicant for the sexual offences in the State indictment on the basis that the applicant's conduct in making videos of his sexual offending with the intention of retaining them for his own sexual gratification and subsequently distributing them for the purpose of "trading" them for similar material substantially increased the overall criminality of that sexual offending. A similar approach was endorsed in this Court's decisions in R v Dickeson, ex-parte A-G; R v Dickeson [2004] QCA 78 at
[72]
p 12 and R v GAE; ex-parte A-G (Qld) [2008] QCA 128 at [19], [26] and [29]-[30];
[73]
[45] The applicant next contends that the sentencing judge fell into error in equating intelligence to criminal responsibility in sexual depravity cases when her Honour made the remark about Dr Wooldridge's assessment to the effect that the applicant knew precisely what he we was doing and he appreciated the seriousness of it. That submission must also be rejected, in my opinion. The sentencing judge was entirely justified in finding that the applicant knew precisely what he was doing and appreciated the seriousness of it whilst he was doing it. That is most emphatically the case in relation to the second and most serious episode of sexual abuse, which he perpetrated after a delay of a week or so after the first episode. It is also illustrated by his calculated and callous conduct in interrupting his abuse of the complainant to adjust the camera to ensure that he recorded it.
[74]
[46] Finally, it is submitted on behalf of the applicant that the sentencing judge erred in concluding that the range of appropriate head sentences extended to 18 years imprisonment. The applicant's counsel argues that the sentencing judge necessarily derived that figure from this Court's decision in R v Robinson [2007] QCA 99 and that it does not support that view.
[75]
[47] In R v Robinson, this Court set aside sentences of life imprisonment in respect of one count of maintaining a sexual relationship with a child under 16 years of age and two counts of rape and substituted concurrent sentences of 18 years imprisonment in respect of those offences. Each of the sentences in the other decisions cited by the sentencing judge was 10 years imprisonment. It is apparent, as is submitted for the applicant, that the sentencing judge relied upon Robinson in reaching the conclusion that the appropriate range of sentences here extended to 18 years imprisonment.
[76]
[48] In my respectful opinion R v Robinson is not a comparable decision. That offender was aged between 51 and 53 at the time of his offences. He was a friend of the parents of the complainant girl, who was between five and seven years old during the period of the maintaining offence. That offence included repeated penile penetration of the very young complainant during the course of a sexual relationship which extended over very many months: Keane JA, with whose reasons Williams and Muir JJA agreed, described those facts as "serious aggravating features of this case." Keane JA observed (in paragraph 36) that Robinson had "cunningly won the trust of the complainant's parents and then persistently and callously abused the complainant". The very high degree of that offender's callous persistence and the pain and distress he caused that complainant over the lengthy period of his serious sexual abuse was graphically illustrated by an audio recording (covertly made by police when searching for evidence of a different offence): see R v RAC [2008] QCA 185 at [30]. It was in that context that Keane JA observed in Robinson, in paragraph [40], that the authorities supported a sentence of imprisonment in a case of that kind of offending where the offender had the benefit of a plea of guilty, of "up to" 18 years.
[77]
[49] The applicant's rapes and other sexual abuse of the complainant are shocking offences. But, quite unlike the circumstances of Robinson, the applicant's offending occurred during two relatively brief occasions one week apart, after which the applicant engaged in no similar offending for the following 15 months before he was arrested. The applicant's offending is not of a comparably high level of criminality with that of Robinson, who engaged in systematic, prolonged and callous sexual abuse, including many instances of penile penetration over many months, with a devastating impact upon that complainant and her family.
[78]
[50] In my respectful opinion, the sentencing judge erred in relying upon R v Robinson as an indication that the permissible range of sentences extended as high as 18 years. That error had a significant bearing upon the sentences imposed by the sentencing judge. It follows that this Court must exercise the sentencing discretion afresh.
[79]
[51] The other decisions of this Court cited to the sentencing judge were R v D [2003] QCA 88 and R v Dickeson, ex-parte A-G; R v Dickeson [2004] QCA 78.
[80]
[52] In R v D [2003] QCA 88 the offender (who was about 40 years of age when he committed the offences) pleaded guilty to one count of deprivation of liberty and one count of rape. In a short period whilst the five year old complainant's mother's attention was distracted, the offender abducted the complainant and raped her by digital penetration of her vagina. He threatened to punch the complainant in order to prevent her from responding to her mother's calls from outside the house and he caused bruising and haemorrhage, with a suspected possible laceration of the complainant's vagina. The offender had a bad criminal history and his heavy substance abuse meant that there was a risk of his re-offending when he was released. This Court set aside a sentence of 12 years imprisonment on the rape count and substituted in lieu thereof a sentence of 10 years.
[81]
[53] Bearing in mind that the applicant's offending occurred on two separate occasions and involved two rape offences (by requiring the complainant to engage in fellatio twice) and four incest offences (of penile penetration) and taking into account also the serious aggravating effect of the applicant's having filmed his sexual abuse for the purposes mentioned earlier, in my opinion R v D supports the view that the range for the sexual offending in this case extended above 10 years imprisonment. But in my respectful opinion, it does not provide any support for the State's contention that the range extended as high as 15 years imprisonment. To accept that view would be to attribute to those aggravating features of the applicant's sexual offending and the other offences a significance relative to the serious sexual offences that those other matters are incapable of bearing. It would also imply a notional sentence of some 20 years had the applicant pleaded not guilty, which it is not possible to justify. And it is necessary also to bear in mind also that the totality of the sentence should not be unjustifiably crushing.
[82]
[54] In R v Dickeson; ex-parte A-G; R v Dickeson [2004] QCA 78 this Court dismissed an Attorney-General's appeal and the offender's application for leave to appeal against a sentence of 10 years imprisonment (of which the offender was required to serve 80 per cent) on a count of maintaining a sexual relationship, and concurrent sentences of five years imprisonment for indecent treatment of a child under 12 years and one year imprisonment for possessing child abuse computer games. That 29 year old offender was a paedophile who was found to have been in possession of hundreds of photographs of young children in public places wearing togs and skimpy clothing. The victims of his offences were three young children from two different families headed by single mothers. The offender cultivated the mothers and in that way obtained access to the children aged between six and eight years old. He maintained a sexual relationship with two sisters, aged eight and six years respectively over some nine and a half months and he recorded both still and moving images of his sexual abuse of them. He engaged in penile vaginal intercourse and fellatio with the eight year old girl and fellatio, other indecent activity, and at least one act of simulated intercourse with the six year old. (The conduct was less serious in relation to the third child, who refused to allow the offender to touch her).
[83]
[55] As is the case in this matter, more detailed descriptions of Dickeson's conduct reveal it to have been stomach churning. The images were recorded during five or six separate episodes. That abuse produced very serious adverse consequences for his victims and their mothers. He did not have any significant victim empathy and claimed to believe that his conduct would not have any bad effect on the children. Also unlike the applicant in this case, that offender had no history of sexual abuse as a child himself.
[84]
[56] That offender used a sophisticated computer storage and indexation system that enabled him to get ongoing sexual gratification from his offending and it put the children at risk of further violations through the publication of the pornography to others (although that offender was not found to have distributed the material). This Court regarded that as an aggravating factor. That offender's cooperation was limited, in that his admissions extended only to what he understood the police could prove against him, and it was questionable whether he had any remorse. He had no prior convictions for like offences. The children were not physically threatened and they did not suffer any direct physical violence.
[85]
[57] The sentencing judge determined that a sentence of 11 or 12 years imprisonment was appropriate but reduced it to 10 years imprisonment to take into account the plea of guilty. This Court concluded that the sentence of 10 years was within the appropriate range, although a slightly heavier or slightly more lenient penalty would also have been justified by the cases which the Court analysed.
[86]
[58] Dickeson was a more serious case of sexual abuse than this, particularly because that offender abused (and filmed his abuse of) three victims, he maintained a sexual relationship with them over a lengthy period (some nine and a half months) and he did not exhibit the remorse or have the prospects of rehabilitation which the sentencing judge accepted in favour of this applicant. On the other hand, of course, the applicant here is the complainant's step-father and was regarded by her as being her father; and the applicant intended not just to retain, with a risk of distribution, but in fact to distribute the videos he made over the internet by way of trading them for similar material. In my view that markedly increases the degree of the applicant's criminality in his sexual offending, calling for condign punishment.
[87]
[59] It must also be kept in mind that whilst the sentence imposed in Dickeson was 10 years imprisonment the Court concluded that the range extended above that.
[88]
[60] It is necessary also to consider authorities that were not cited to the sentencing judge.
[89]
[61] Counsel for the State cites R v D [2003] QCA 148. That offender was convicted after a trial and sentenced to 14 years imprisonment for the rape of his four year old daughter, as a result of which she spent her fifth birthday in hospital being treated for injuries caused by the rape. The rape was a horrific one. The complainant required surgical repair of her genitals and subsequent medical treatment, with a possible requirement for additional surgery later in her life. She also sustained severe psychological effects. The offender had a previous criminal history which included an offence of wilfully exposing a child under the age of 16 to an indecent photograph. There was a very high probability of his re-offending and he had shown no remorse or concern for the harm he had done. Atkinson J, with whose reasons MacPherson and Williams JJA agreed, referred to those facts as making the case even more serious than R v D [2003] QCA 88, and held at [38]-[39] that the sentence of 14 years imprisonment could not be said to be excessive.
[90]
[62] That offending involved only one event, whereas this applicant's abuse extended over two separate episodes one week apart and involved the aggravating features mentioned earlier, but on the other hand there are significant mitigating factors in the applicant's favour upon which D could not rely, notably including that the applicant did not cause the complainant lasting physical injury, the applicant admitted his offending when apprehended, and he pleaded guilty (and as early as possible).
[91]
[63] Counsel for the State also cited R v Arnold; ex parte A-G (Qld) [2002] QCA 357. That offender was convicted, in respect of a two year old male complainant, of one offence of rape, two of attempted rape, two of stupefying to commit an indictable offence, one indecent assault with a circumstance of aggravation, one attempted indecent dealing with a circumstance of aggravation, one assault occasioning bodily harm and two common assaults. In respect of an 11 year old female complainant, the offender was convicted of two offences of rape, two of stupefying to commit an indictable offence and one indecent dealing with circumstances of aggravation. The complainants were the applicant's de facto partner's children. He committed the offences during a three month period whilst their mother was in a mental health facility. The offender drugged the children and anally raped them, persisting despite the manifest distress of the girl. He made threats concerning other family members to enforce her compliance with his demands. This Court allowed an Attorney-General's appeal against sentences of nine years imprisonment for the rapes and substituted sentences of 13 years imprisonment, to be served concurrently, with a declaration that the offences were serious violent offences.
[92]
[64] Arnold was plainly a more serious case, involving two victims, one as young as two years old, and a prolonged period of offending in respect of both victims, and where the offender pleaded not guilty. Taking into account the different circumstances in this matter, that decision suggests that the range for the sexual abuse offences here must be below 13 years imprisonment.
[93]
[65] R v RAC [2008] QCA 185 was decided after this application was argued. The Court there allowed an appeal against sentences of 10 years imprisonment on each of eight counts of rape by an offender on his six year old step-son and substituted a sentence of eight years imprisonment, with declarations that the rape offences were serious violent offences. Over a period of some months RAC committed eight rapes upon his six year old step-son (five rapes by requiring the child to perform oral sex upon him, and three anal rapes) and two indecent dealing offences. The offences occurred on separate occasions when the complainant and his younger brother stayed at the offender's home every second weekend, after the offender had separated from the children's mother. The offender was a father figure to the complainant. The offending did not cause physical injuries but unsurprisingly it did cause serious detrimental impacts, primarily upon the child victim, but also on his mother and younger brother. The offender was aged 26 and 27 when he committed the offences. Like this applicant, that offender had himself been abused as a child. He also felt guilty about his conduct towards the complainant, was prepared to participate in a sexual offender treatment program and would benefit from it. He had some intellectual insight into his behaviour.
[94]
[66] That offender had no relevant criminal history. In addition the Court regarded it as an important mitigating factor that but for the applicant's frank admissions to police the full extent of his offending would not have become known and he would not have been charged with as many offences: reference was made to Hayne J's observations in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 155 [113]; [1999] HCA 46, which emphasise the significance that must be attributed to that as a mitigating factor. That is not a feature upon which the applicant can rely here.
[95]
[67] McMurdo P (with whose reasons Muir JA and Cullinane J agreed) analysed many relevant authorities, including R v Robinson [2007] QCA 99 and R v D [2003] QCA 88, and concluded that the sentencing judge was right to consider that, had the applicant been convicted after a trial of the offences, a sentence of 12 years imprisonment was within range but that the sentencing judge erred by discounting that 12 year sentence by only two years for the applicant's very early plea of guilty and extensive cooperation with the authorities. Her Honour considered that a discount of one-third, or four years of the 12 year sentence, was warranted in that case.
[96]
[68] The applicant here was not guilty of the large number of rapes and his offending did not occur over the lengthy period in R v RAC. On the other hand, as I have mentioned, the applicant is not entitled to the significant additional consideration made in favour of an offender who reveals extensive offending which was otherwise not discoverable.
[97]
[69] Furthermore, unlike RAC, the applicant's sexual abuse of the complainant was aggravated by his filming it (including by his calculated conduct in pausing during his offending to adjust the camera) in the circumstances and for the appalling motives earlier described. That conduct must not be overlooked. The authorities stress the importance of deterrence and denunciation for offences of that kind: R v Plunkett [2006] QCA 182 at 3, 6; R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295 at [17]; R v Carson [2008] QCA 268 at [32]. As was said in R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 at 52; [1999] WASCA 24:
[98]
"The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims."
[99]
[70] Those observations, which have been adopted in decisions of this Court concerning Commonwealth and State offences proscribing the possession and distribution of child pornography (see R v Carson [2008] QCA 268 at [27] - [31]), are of particular importance here, where the applicant was or should also have been aware of the corrupting effect upon himself of the child exploitation material he had so assiduously collected.
[100]
[71] Having regard to the circumstances of the applicant's sexual abuse offences and the comparable decisions I have discussed, in my opinion an appropriate head sentence for the rape and incest offences in the State indictment is 10 years imprisonment. In arriving at that figure I have borne in mind that the sentence carries with it the statutory obligation to declare that those offences are serious violent offences and the statutory consequence that the applicant will be required to serve 80 per cent of that term. It is then necessary to consider what additional punishment, if any, should be imposed for the other offences.
[101]
[72] That requires consideration of the appropriate structure of the sentences in the re-sentencing process that I consider this Court must undertake. The sentencing judge's approach was to impose head sentences for the most serious offences, the rape and incest offences, which took into account the overall criminality of all of the offending in both the State and Commonwealth offences, to impose lesser concurrent sentences for all other State offences, and to impose a concurrent, overall federal sentence of four years with a recognizance release order two years after the commencement of that federal sentence.
[102]
[73] This approach was not challenged by the applicant or by the State or Commonwealth. As was submitted for the Commonwealth, it also has the virtue of avoiding the "notoriously difficult task" involved in attempting to impose cumulative sentences under the different Commonwealth and State sentencing regimes: see R v McMillan [2005] QCA 93 at [21]. However, in my opinion the sentencing judge's approach of combining the Federal sentences with the State sentences in the form of increased sentences for the sexual offences in the State indictment was flawed.
[103]
[74] In R v Nagy [2003] QCA 175; [2004] 1 Qd R 63 at [39]; [2003] QCA 175, Williams JA (with whose reasons in this respect Muir J agreed) said that the approach of fixing a sentence for the most serious offence which is higher than it would have been because it takes into account the offender's overall criminality should not be adopted "where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole..." The Federal sentence contemplated in the Commonwealth's and the applicant's submissions provided for a pre-release period at its mid-point. But the effect of Queensland legislation is that a sentence for those sexual offences of 10 years or more carries with it the automatic consequence that the applicant will not be eligible to apply for parole until after he has served 80 per cent of the term.[2]
[104]
[75] To increase the sentence for those sexual offences in the State indictment to take into account other offences that do not attract the same penal consequences concerning eligibility for parole introduces the risk of prejudicing the applicant in relation to the non-parole period under the sentences. Furthermore it fails to recognise differences between the State and Federal statutory sentencing regimes.
[105]
[76] Section 16A in part 1B of the Crimes Act 1914 (Cth) requires the court to impose a sentence that is of a severity appropriate in all the circumstances of the case and to take into account all known relevant matters including those specified in s 16A(2). Whilst the approach to Federal sentences required by part 1B of the Crimes Act 1914 (Cth) is similar to the approach required by the Penalties and Sentences Act 1992 (Qld), there are material differences.
[106]
[77] These differences are reflected in, for example, s 19AJ of the Crimes Act 1914 (Cth), which provides that division 4 of part 1B does not authorise a court to fix a single non-parole period or to make a recognizance release order in respect of both Federal sentences of imprisonment and State or Territory sentence of imprisonment. The effect of the sentencing judge's approach, however, was to apply the State provisions to the Federal component of the "combined" sentence. That is inconsistent with the Commonwealth Act: see R v To & Do; ex parte Cth DPP [1999] 2 Qd R 166; [1998] QCA 98.
[107]
[78] Combining a Federal sentence of imprisonment with a State sentence of imprisonment also disregards the applicable statutory provisions concerning the aggregation of such sentences. Those provisions are relevant because, in my view, the seriousness of the Federal offences and the importance of deterrence means that sentences of imprisonment are the only appropriate sentences for the Commonwealth offences: see s 17A of the Crimes Act 1914 (Cth). It is therefore necessary to consider how the Federal and State sentences should be combined. In that respect it is questionable whether the Penalties and Sentences Act 1992 (Qld) empowers the Court to order that the State sentences commence after the end of the Federal sentences: see R v McMillan [2005] QCA 93 at [22]. Section 19 of the Crimes Act 1914 (Cth) does, however, empower the Court to order that the Federal sentence commence after the commencement of the State sentences. That is the structure that I consider should be adopted in this case. On that basis, s 19(3) requires the Court to order that the Federal sentence commence immediately after the end of the non-parole period under the State sentence (that is, after eight years): Crimes Act 1914 (Cth), s 19(3)(d); R v O'Brien at 84-8; R v Daswani at , [19], [22]-[27]; R v McMillan at .
[108]
[79] In my opinion it is appropriate to fix the sentences for the applicant's most serious sexual offences in the State indictment on the basis that the applicant's criminality was increased by his conduct of making videos of that sexual offending with the intention of possessing and distributing those videos, but without taking into account the applicant's distribution of the videos commencing some six months later or his other Federal offences. That is the basis upon which I have arrived at the State sentence of 10 years imprisonment. On that basis, and avoiding overlap with those elements of the Federal offences already taken into account as part of the circumstances of the state sentence, I conclude that the appropriate total Federal sentence is four years imprisonment commencing after the applicant has served eight years of the State sentence, but with provision for release on parole after the applicant has served one further year. That structure produces an overall head sentence of 12 years and a minimum period of imprisonment of nine years. In that respect I have taken into account that much of the applicant's Federal offending was remote in time from the sexual abuse offences; that the material the applicant possessed and distributed (apart from the films he took of his own offending) included material of a particularly degrading and obnoxious character; that in the case of the book, it was the worst kind of text imaginable; and that these other offences, unconnected with the sexual abuse offences, were committed over a substantial period.
[109]
[80] I propose a non-parole period rather than a recognizance release order for the Federal offences. Because the Federal sentences in aggregate exceeded three years, s 19AB (1) of the Crimes Act 1914 (Cth) required the sentencing judge to fix a single non-parole period or to make a recognizance release order unless, as
[110]
s 19AB(3) provided, having regard to the nature and circumstances of the offences and the antecedents of the offender the court was satisfied that neither was appropriate. The order made by the sentencing judge suggests that her Honour did not think that s 19AB(3) applied and in my opinion there was no error in that view.
[111]
[81] However the sentencing judge plainly intended that after the applicant had served the 24 months specified in the recognizance release order for the Federal sentences the applicant would not be released because his incarceration for many more years would be required by the State sentences. That being so it is not easy to see how the sentencing judge could have formed the necessary opinion under s 20(1) that this was a fit case for ordering the release of the applicant on recognizance under
[112]
s 20(1)(b). The recognizance release order was either futile or, if effective, did not reflect the sentencing judge's intention.
[113]
[82] I would therefore set that order aside. Instead, as I have indicated, I would fix a non-parole period of one year commencing after the applicant is first eligible for parole under the State sentences. For the Federal sentence a non-parole period may be fixed even though it is presently not certain that the applicant will be released under the State sentences by the end of the Federal non-parole period. Section 19AL (1) and ss 19AM(1) and (2) provide:
[114]
(1) Subject to section 19AM, where there has been imposed
[115]
on a person a federal sentence of, or federal sentences
[116]
aggregating, more than 3 years but less than 10 years
[117]
and a non-parole period has been fixed in relation to the
[118]
sentence or sentences, the Attorney-General must, by
[119]
order in writing, direct that the person be released from
[120]
circumstances it would be appropriate to do so, on a
[121]
specified day, not being earlier than 30 days before
[122]
19AM Person not to be released on parole if still serving State or
[123]
(a) at the time when a federal non-parole period (not being in
[124]
respect of a life sentence) ends, the offender is serving, or is
[125]
to serve, a State or Territory sentence (other than a life
[126]
sentence for which a non-parole period has not been fixed);
[127]
(b) if a federal parole order were made at that time, the parole
[128]
imprisoned in respect of the State or Territory offence;
[129]
(a) at the time when a federal non-parole period (not being in
[130]
respect of a life sentence) ends, the offender is serving, or is
[131]
to serve, a State or Territory sentence (other than a life
[132]
sentence for which a non-parole period has not been fixed);
[133]
(b) if a federal parole order were made at that time, the parole
[134]
period would end after the offender was released, or
[135]
released on parole, in respect of the State or Territory
[136]
the Attorney-General must make the parole order, but it does not
[137]
take effect before the offender is eligible to be so released.
[138]
[83] If a non-parole period for the Federal sentence of one year is fixed, in my opinion
[139]
s 19AL(1) will require the Attorney-General to order the applicant's release on parole but under s 19AM(2) the parole order will not take effect until the applicant is eligible to be released under the State sentence. That would give effect to the sentence structure I propose.
[140]
[84] It was not submitted on behalf of any party that any sentence other than the Federal sentence should be cumulative. The total overall effect of the sentences I propose in my view sufficiently punishes the applicant for all of his offending. In these circumstances I would adopt the sentencing judge's approach of making the other State sentences concurrent.
[141]
3. Vary the sentences imposed in the District Court in the way set out in the following paragraphs.
[142]
4. The sentences imposed on the counts of rape (counts 56 and 57) and incest (counts 60, 61, 62 and 64) in the State indictment (57/08) be set aside and in lieu of those sentences the applicant be sentenced to 10 years imprisonment on each of those counts, each of those sentences to be served concurrently with each other and with the sentences imposed in the District Court for the other offences on the State indictment.
[143]
5. Declare that the convictions of the offences in counts 56, 57, 60, 61, 62 and 64 in the State indictment are convictions of serious violent offences.
[144]
6. Set aside the orders made in the District Court that the three terms imposed in the District Court on the counts in the Commonwealth indictment (56/08) be served cumulatively upon each other but concurrently with the head sentence of 15 years on the State charges and that the applicant be released after serving 24 months upon his giving security by recognizance in the sum of $1,000 on the condition that he be of good behaviour for a period of two years.
[145]
(a) Order that the term of imprisonment of 18 months imposed in respect of count 1 in the Commonwealth indictment commence immediately after the applicant has served eight years of the 10 year term of imprisonment imposed in respect of the State indictment.
[146]
(b) Order that the term of imprisonment of 12 months imposed in respect of count 2 in the Commonwealth indictment commence immediately after the applicant has served the term imposed for count 1 in the Commonwealth indictment.
[147]
(c) Order that the term of imprisonment of 18 months imposed in respect of count 3 in the Commonwealth indictment commence immediately after the applicant has served the term imposed for count 2 in the Commonwealth indictment.
[148]
(d) Fix a single non-parole period of one year in respect of counts 1, 2 and 3 in the Commonwealth indictment; and
[149]
(e) Direct that the Registrar reduce this order to writing and cause a copy to be given to the applicant, together with the explanation required by s 16F(1) of the Crimes Act 1914 (Cth).
[150]
8. Direct that there be entered in the records of the District Court in respect of counts 1, 2 and 3 in the Commonwealth indictment the statement that because of the seriousness of the offending no sentence is appropriate other than a sentence of imprisonment.
[151]
9. Set aside the declaration as to imprisonment already served pursuant to the sentences imposed in the District Court on 8 February 2008.
[152]
10. In respect of the terms of imprisonment imposed in the District Court as varied by these orders:
[153]
(a) State that the applicant was held in presentence custody between 10 August 2006 and 8 February 2008, a period of 547 days.
[154]
(b) Declare that that time is time already served under the sentences for the counts in the State indictment.
[155]
(c) Declare that none of that time is taken to be imprisonment already served under the sentences for the counts in the Commonwealth indictment.
[156]
(d) Direct that the Chief Executive Officer (Corrective Services) be advised of these declarations and their details.
[157]
[86] FRYBERG J: I respectfully agree with Fraser JA that the head sentence of 15 years imprisonment imposed for each of two counts of rape and four counts of incest should be set aside.
[158]
[87] Counsel for the State Crown submitted that R v Robinson[3] supported the learned sentencing judge's estimation that the range was between 10 and 18 years. In context it seems that the submission referred to the range of sentences open in the circumstances of the present case. That submission is not in my judgment supported by what was said in Robinson. In the passage relied on, Keane JA wrote, "These decisions would tend to support a sentence of imprisonment in a case of this kind of offending, where the offender has the benefit of a plea of guilty, of up to 18 years."[4] The kind of offending to which his Honour was referring was maintaining a sexual relationship with incidents of rape and sodomy, sometimes with violence. His Honour was describing a general conclusion drawn from the cases which he cited.[5] I have no reason to differ from that conclusion. It is however important to remember that the statement was descriptive, not prescriptive.
[159]
[88] In the present case it is necessary to consider whether it can fairly be said that the range in the circumstances was up to 18 years imprisonment. A range can be derived from considering sentences in other cases, but it is always important to ensure that there is sufficient similarity between the case at hand and the class of cases from which the range is derived. Unless the class is defined with sufficient precision to ensure that the case at hand is comparable to (albeit not identical with) all members of it, it will not necessarily be the position that a range derived from the class applies to the particular case. The range in the particular case matters because only if the sentence was outside that range can it be said to have been manifestly excessive. (Manifest excessiveness was the sole ground of appeal proposed in the present application.)
[160]
[89] It is important to remember these matters in considering the statement made in R v Robinson. The statement provides a useful summary of the outcome of the cases to which it refers, but there is insufficient similarity between those cases and the present to say (as the sentencing judge seems to have said) that the range for the class of case into which the present case falls is as wide as 10 to 18 years imprisonment.
[161]
[90] In cases where on any view the sentence is to be more than 10 years imprisonment, it is particularly important to identify the range of sentences available with precision because where there are mitigating factors, they will often be reflected in a reduction of the head sentence. That is because it is not possible to follow the more conventional practice of reflecting them by fixing an earlier than normal parole eligibility date.[6]
[162]
[91] In the present case the offending, while very serious, was not as serious as that in Robinson. A sentence of 18 years imprisonment was not within the discretionary range.
[163]
[92] That does not mean that the sentence of 15 years imprisonment was manifestly excessive. However in the course of argument, counsel for the applicant submitted without objection from either respondent that her Honour unnecessarily hampered the exercise of her discretion by referring to Robinson and limiting the range to 10 to 18 years. While inelegantly expressed, that is sufficient in my judgment to identify and raise an error of law in the sentencing process as a ground of appeal. I respectfully agree with Fraser JA that it was an error to use that case as an indication that the range extended so high. That error significantly influenced her Honour's decision. This court should therefore resentence the applicant.
[164]
[93] Robinson is a decision which gives rise to some difficulties of principle,[7] particularly in the light of the sentencing regime which has existed since 28 August 2006. It is unnecessary to consider these matters here.
[165]
[94] There is no doubt in the present case that if none of the Commonwealth offences had been involved, the judge could have imposed a sentence for the rape and incest offences which took into account the level of criminality reflected in all of the applicant's other offending.[8] None of the parties suggested that the presence of the Commonwealth offences made any difference in that respect, and that was the approach which the judge adopted. Fraser JA has suggested that with the presence of the Commonwealth offences that approach was "flawed"[9], which I take to mean legally impermissible.
[166]
[95] I respectfully disagree with that view. It is true that in R v Nagy Williams JA wrote that this approach should not be adopted where there would be collateral consequences. I understand his Honour's dictum to have been offering wise counsel to sentencing judges. He was not as I read his judgment expressing the view that such an approach was unlawful. It is not accurate to describe a sentence embodying this approach as one imposed for the Commonwealth offence and, with respect, I do not think it assists to describe it as a "combined" sentence. In the present case a clearly distinct sentence was imposed for the Commonwealth offences. Provided any collateral consequences of adopting the approach are taken into account in assessing the overall severity of the sentence, the approach is in my judgment legitimate.
[167]
[96] That is not meant to encourage sentencing judges to disregard what Williams JA wrote. On the contrary, on a busy sentencing day with counsel who may be ill-prepared to argue such matters, it would be wise to follow his Honour's advice unless there is sound reason to do otherwise. Fraser JA has demonstrated that there are pitfalls in the path of an unwary judge who adopts the "overall criminality" approach in cases involving mixed Commonwealth and State offending. But there are potential pitfalls in the path whichever route one chooses. Some of those which arise when imposing cumulative sentences were referred to in R v McMillan[10].
[168]
[97] I was initially reluctant to adopt an approach which had not been the subject of submissions by counsel. On the other hand, in addition to the difficulties referred to by Fraser JA, there is a least one other structural problem in using the "overall criminality" approach urged by all parties and adopted by the sentencing judge. Her Honour ordered that the applicant be released after serving 24 months of the Commonwealth sentence upon his giving security by recognizance in the sum of $1,000 conditioned that he be of good behaviour for a period of two years.[11] That order was at best a futility, given the much longer State sentences; and courts should not make orders which are known to be futilities. At worst it may be arguable that an order for release made under a Commonwealth act overrides orders for detention under a State act (contrast the cognate position in relation to Commonwealth parole release orders).[12] It would seem preferable for a sentencing judge to fix a single non-parole period in such cases rather than to make a recognizance release order; or perhaps to make no order[13]. Regrettably we received no assistance from counsel on this aspect of the case, and in fairness to her Honour, it should be pointed out that the order was requested by counsel appearing for the Crown in right of Commonwealth on the instructions of the Commonwealth Director of Public Prosecutions.[14]
[169]
[98] In all the circumstances I would adopt the methodology proposed by Fraser JA. It has the additional attraction of allowing mitigating factors to be reflected in orders regarding parole which will result in eligibility somewhat earlier than the 80% mark which would follow from the "overall criminality" approach. That avoids the need to reduce the head sentence for mitigating factors, or at least the need to do so to such an extent as would apply under that approach. I observe that it is only by chance that this court is in a position to take that course. The applicant sought leave to appeal against all sentences imposed in the District Court, although his submissions were confined to the six 15 year sentences. Had he not brought the Commonwealth sentences before this court, I doubt it would have had jurisdiction to vary them.
[170]
[99] Five other technical matters arise. First, the sentencing judge omitted to make the declarations required by s 161B(1) of the Penalties and Sentences Act 1992 in respect of the six counts to which the section applied. Although that omission does not affect the convictions it should be corrected. Second, her Honour made a declaration under s 159A of that Act in respect of all the terms of imprisonment she imposed.[15] It is not appropriate that the declaration apply to sentences imposed cumulatively;[16] so it is necessary to vary that order. Third, we have heard no submissions on the question whether a "non-parole period" within the meaning of that term defined in s 16 of the Crimes Act 1914 (Cth) applies in respect of the State offences for the purposes of s 19(3)(d) of that Act. In my judgment it remains an open question whether the parole regime established by pt 1 of ch 5 of the Corrective Services Act 2006 satisfies the requirements of the definition. Part 1 makes provision for granting parole, not for preventing it; and s 176 permits parole for any prisoner at any time. When similar questions have arisen in previous cases in the Court of Appeal, I have assumed that a non-parole period applies. It is appropriate to make the same assumption in the present case. Even if the assumption be wrong, the validity of a sentence conforming with will be unimpaired. Fourth, the order making the Commonwealth sentences cumulative inter se was expressed in these terms:
[171]
"Those three terms with respect to the Commonwealth charges are to be served cumulatively upon each other, but concurrent with the head sentence of 15 years on the state charges."
[172]
That form of expression did not comply with s 19(3) of the Crimes Act1914 (Cth), which required the court by order to direct when each federal sentence commenced. Finally, her Honour did not expressly state the reasons for her decision that no sentence other than imprisonment was appropriate for the Commonwealth offences, as required by s 17A(2) of the Crimes Act1914 (Cth). It is perfectly apparent from her Honour's reasons that she was rightly satisfied that no other sentence was appropriate in the circumstances of the case, by reason of the enormity of the offending. This omission should be rectified.
[173]
[100] As regards the head sentences, I would sentence the applicant on each of the rape and incest charges to imprisonment for 11 years and 8 months. I would allow the duration of the sentences imposed for the Commonwealth offences to stand. I would order that the first of those sentences commence after the applicant has served nine years and four months (or 80%) of the imprisonment imposed for the rape and incest charges.
[174]
[101] As regards parole, I would make no order under s 160D of the Penalties and Sentences Act 1992, with the consequence that the applicant's parole eligibility date in respect of the State period of imprisonment would be the day after he has served nine years and four months of that period. I would fix a non-parole period of three months in respect of the Commonwealth offences. In terms of totality, that would produce a maximum period of imprisonment of 13 years and four months, which would not be excessive in the circumstances. It would make the applicant eligible for parole after nine years and seven months, which would be a little over 70% of the maximum period of imprisonment. In my judgment that reflects the genuine remorse which the sentencing judge accepted was felt by the applicant while at the same time allowing a more substantial period of parole during which his conduct may be monitored.
[175]
3. Set aside the sentences imposed in the District Court on 8 February 2008 in respect of counts 56, 57, 60, 61, 62 and 64 in indictment 57/08.
[176]
(a) on each count to a term of imprisonment of 11 years and 8 months, such terms to be served concurrently with each other and with the other terms imposed in the District Court on 8 February 2008 on indictment 57/08;
[177]
(b) declare that each conviction is a conviction of a serious violent offence.
[178]
5. Set aside the declaration as to imprisonment already served pursuant to the sentences imposed in the District Court on 8 February 2008.
[179]
6. In respect of the terms of imprisonment imposed in para 4 for the counts referred to in para 3 hereof, and by the District Court on 8 February 2008 for all other counts in indictment 57/08:
[180]
(a) state that the applicant was held in presentence custody between 10 August 2006 and 8 February 2008, a period of 547 days;
[181]
(b) declare that that time is time already served under those sentences;
[182]
(c) direct that the Chief Executive (Corrective Services) be advised in writing of this declaration and its details.
[183]
(a) no sentence other than imprisonment is appropriate because of the enormity of the offending as described in the sentencing remarks in the District Court and the reasons for judgment in the Court of Appeal;
[184]
(b) direct that this statement be entered in the records of the District Court.
[185]
8. Set aside so much of the sentences imposed in the District Court on 8 February 2008 in respect of counts 1, 2 and 3 in indictment 56/08 as ordered that those terms of imprisonment be served cumulatively upon each other, but concurrent with the head sentence of 15 years on the State charges; and as ordered that the applicant be released after serving 24 months upon his giving security by recognizance in the sum of $1,000 on the condition that he be of good behaviour for a period of two years.
[186]
(a) order that the term of imprisonment imposed in respect of count 1 therein commence immediately after the applicant has served 9 years and 4 months of the imprisonment referred to in para 4(a) hereof;
[187]
(b) order that the term of imprisonment imposed in respect of count 2 therein commence immediately after the applicant has served the 18 months term imposed for count 1;
[188]
(c) order that the term of imprisonment imposed in respect of count 3 therein commence immediately after the applicant has served the 12 months term imposed for count two;
[189]
(d) fix a non-parole period in respect of counts 1, 2 and 3 in indictment 56/08 of 3 months;
[190]
(e) direct that the Registrar provide the applicant with an explanation in writing in accordance with s 16F(1) of the Crimes Act 1914 (Cth).
[191]
10. Order that any time the applicant was held in custody in relation to the charges set out in counts 1, 2 and 3 in indictment 56/08 before being sentenced on those counts on 8 February 2008 not be taken to be imprisonment already served under that sentence and in relation thereto:
[192]
(a) state that the applicant was held in presentence custody between 10 August 2006 and 8 February 2008, a period of 547 days;
[193]
(b) declare that none of that time is taken to be imprisonment already served under those sentences;
[194]
(c) direct that the Chief Executive (Corrective Services) be advised in writing of this declaration and its details.
[195]
[1] Count 54 charged rape but it was included in the summary on the cover sheet of the ex-officio indictment as one of these 11 charges of indecent treatment. The applicant pleaded to the State indictment in bulk and in terms that reflected the summary on the cover sheet. He was sentenced on that basis. His application in this Court must be considered on the same basis.