Decision
81 As already stated earlier in this judgment, it was conceded by counsel for the Crown on this appeal that the facts of the offences and the subjective circumstances of the respondent were accurately and fully set forth in the sentencing judge's remarks on sentence and it was further conceded by the Crown that the sentencing judge in his remarks on sentence had properly referred to all sentencing considerations. His Honour referred appropriately in his remarks on sentence to all the purposes of sentencing, including deterrence and denunciation.
82 In such circumstances, in accordance with the principles stated in Baker and Wall, a successful Crown appeal will be rare. In order for the Crown to succeed on an appeal, the Crown is required to show that legal error can be inferred merely from the length of the sentence. Legal error must be established, not merely that this Court, if it had been the original sentencing court, might or would have imposed a longer sentence.
83 The offences committed by the respondent were objectively serious. However, the objective seriousness of the respondent's offences could be distinguished from the objective seriousness of more serious cases, in the way stated by the sentencing judge in his remarks on sentence which I have summarised earlier in this judgment and in the ways submitted by counsel for the respondent in his submissions which I have also summarised earlier in this judgment.
84 Counsel for the Crown relied particularly on the high maximum penalty for an offence under s 474.26 of the Criminal Code. The maximum penalty for an offence is a yardstick and an important yardstick but nevertheless remains "a yardstick…(to be) taken and balanced with all of the other relevant factors" (see Markarian v The Queen at 1056 [31]). In the present case the sentencing judge was clearly mindful of the maximum penalty.
85 The respondent pleaded guilty and was allowed a discount in penalty of 25 per cent for his plea of guilty.
86 Some allowance could properly be made for the severe extra-curial punishment the respondent had suffered and would suffer, including the virtually certain loss of his profession of 25 years and his livelihood. Some allowance, albeit only limited, could be made for the public humiliation the respondent had suffered.
87 The sentencing judge could also take into account favourable subjective features of the respondent's, including contrition and Dr Allnutt's opinion, which the sentencing judge accepted, that, when regard was had to all factors, the risk of the respondent re-offending was low.
88 It is true that the maximum penalty for an offence under s 474.26 of the Criminal Code is much higher than was the maximum penalty for an offence under s 218A(1)(a) of the Queensland Criminal Code. However, the sentence imposed on the respondent was higher than any of the sentences imposed on any of the Queensland offenders and, as regards the time required to be actually served in prison, much higher.
89 The conclusion I have come to is that the present appeal is not one of those rare Crown appeals in which the appeal should be allowed, notwithstanding that the Crown cannot point to any specific error in the sentencing process, and I would, accordingly, dismiss the appeal. As should be clear from what I have written, I have reached this result by an application of the principles governing Crown appeals against sentence.
90 ROTHMAN J: I have had the advantage of reading the reasons in draft of James J. I agree with his Honour's reasons and the orders he proposes. The following comments do not detract from the force of those reasons.
91 The relevant jurisdiction conferred on the Court of Criminal Appeal is to correct error. In the case of Crown appeals there is a live discretion exercised by the Court not to interfere even when error is shown and the requirements of section 6(3) of the Criminal Appeal Act 1912 (NSW) have been satisfied.
92 In the current appeal, there is no error of fact. The Crown so concedes. Nor can the Crown identify any error of principle or law. The Crown therefore relies on manifest error; i.e. an error that is manifest from the result even though it is unclear or unknown how the error occurred: House v R (1936) 55 CLR 499 at 505.
93 It is usual, in those circumstances, in a Crown appeal, for the Crown to seek to show that the sentence imposed is not only less than is warranted but so much less as to be outside the range of available sentences. In this appeal, the Crown has quite properly conceded that the sentence imposed by his Honour Judge Norrish QC was, if there be a range, above it. Such a comparison with the range is analysed by James J.
94 The gravamen of the Crown appeal is that with the alterations to the offence and maximum sentence, the sentences being imposed (not necessarily that of Judge Norrish QC) are too lenient. If one were examining the sentences previously imposed for this or like offences in Victoria and Queensland, and measuring same against the current maximum sentence, there is much force in the Crown submission. But that is not our task. Our task is to examine only the sentence imposed by Judge Norrish QC and determine whether it displays error.
95 The offence in question is a legislative attempt to regulate and prohibit the use of modern technology in the abuse of children. The fact, if it be the fact, that the perpetrator is not intending to act on her/his statements, because she/he is indulging in a fantasy, may be relevant to sentence, but is not the most relevant feature.
96 The legislature, with this provision, is seeking to implement society's abhorrence of the practice of inducing children to engage in inappropriate sexual behaviour. That process includes not only the direct and physical abuse of children but the "grooming" of children to accept more readily inappropriate sexual activity. Even though a perpetrator of an offence of this kind may have no intention of acting out the fantasy or fantasies in which she/he is indulging, the conduct has a significant deleterious impact upon any child participating in it.
97 In the particular instance with which Judge Norrish QC was dealing, the offender was committing the offence on a telephone service which overtly encouraged sexual discussion and fantasy, if not more. That fact is, it seems to me, far more relevant as one of the criteria by which a sentencing judge would determine the criminal culpability of the offender. If, for example, the offence were committed on persons who were not voluntarily engaged in sexual discussions, the criminal culpability would be much worse.
98 The respondent offender has particular subjective features all of which have been described by James J and were factors considered by Norrish DCJ. Sentencing, as earlier stated, is an intuitive synthesis of the conflicting goals in order to derive an appropriate result: Markarian, supra. Judge Norrish QC is a most experienced sentencing judge who, in this case, imposed a sentence, quite deliberately, to take account of all of the relevant factors, and no others. Even though, given the increased penalty applicable under the amended provision, this sentence would be at or near the bottom of the range, it is not, in the circumstances, below it.
99 I agree with the reasons of James J and the orders proposed by his Honour.
100 HARRISON J: I agree with James J.