R v SP [2004] ACTCA 16 | Case summary | Zoe

ACTACTCA

R v SP [2004] ACTCA 16

[2004] ACTCA 16

Court of Appeal (ACT)|2004-08-20

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Court of Appeal (ACT)

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2004-08-20

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Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

R v SP

[2004] ACTCA 16 (20 August 2004)

CRIMINAL LAW – sentencing – respondent pleaded guilty to six counts of sexual intercourse with a person under the age of 16 years – whether sentence manifestly inadequate in the circumstances – remorse – delay in the prosecution of the offence – exceptional factors – suspension of sentence.

Crimes Act 1900 (ACT), s 341, s 343 s 345, s 403

Sentencing Act 1995 (WA)

Sentencing Act 1991 (Vic), s 5

Everett v The Queen (1994) 181 CLR 295

House v The King (1936) 55 CLR 499

Lowndes v The Queen (1999) 195 CLR 665

Dinsdale v The Queen (2000) 202 CLR 321

Wong v The Queen (2001) 207 CLR 584

R v Cobb (1999) 84 FCR 450

Papazisis & Bird (1991) 51 A Crim R 242

R v Carroll, unreported, Court of Criminal Appeal, Victoria, 15 October 1990

R v Lappas (2003) 152 ACT R 7

R v Clarke [1996] 2 VR 520

R v Brewer [2004] ACTCA 10, unreported, 1 June 2004

R v Webster, sentencing remarks, unreported, ACT Supreme Court, SCC 50/01, 3 August 2001

Crawley v The Queen (1981) 55 FLR 463

R v Whyte [2004] VSCA unreported, 13 February 2004

R v Thompson (1988) 37 A Crim R 97

R v Todd [1982] 2 NSWLR 517

Mill v The Queen (1988) 166 CLR 59

The Queen v P (1992) 39 FCR 276

Suspended Sentences and Preventative Sentences: Illusionary Evils and Disproportionate Punishments, Mr Bagaric, 1999, Vol 22, UNSW Law Journal, 535

R v Liddington (1997) 18 WAR 394

Law Reform Commission of New South Wales, Discussion Paper No 33, 1996

Ryan v The Queen (2001) 206 CLR 267

R v Law (1995) 84 A Crim R 142

R v D’Arcy (2001) 122 A Crim R 268

R v Wirth (1976) 14 SASR 291

R v Carpentieri (2001) 81 SASR 164

R v Edwards (1996) 90 A Crim R 510

Power v R (1974) 131 CLR 623

R v Hillsley (1982) 34 FCR 148

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 34 - 2003

I have had the advantage of reading in draft the judgments of Gray J and of Gyles J. I agree with Gray J that no error of principle in the approach of the learned trial judge to the sentencing exercise can be identified.
In that respect I differ from Gyles J. Nevertheless, I agree with Gyles J that all the relevant factors, including the delay occasioned by an official decision not to pursue the matter through the criminal justice process, would not have justified the imposition of a head sentence of less than three years.
I would not wish to express a view critical of the authorities in circumstances where the parents of the victim were urging them to proceed administratively rather than by engaging the criminal justice system. Nevertheless, it was the wrong decision. It was not a matter for the education authorities acting alone to decide that the respondent’s crimes did not warrant criminal action.
At the very least, the police and prosecution authorities should have been informed of the matter and given the opportunity to decide whether it was in the public interest to prosecute. It is to be hoped that such inaction will not occur in the future. The protection of children from sexual predation is too important to avoid or by-pass proper consideration of the public interest, not only in dealing with the particular case but also in the deterrence of others who may be tempted to offend as this respondent did. I do not suggest there can never be a case where the interests of the victim might not outweigh the public interest in condemnation and deterrence. This is not such a case.
Nor was there any compelling psychological disability from which the respondent suffered so as to make him an unsuitable vehicle for deterrent punishment.
It was simply a case of a teacher giving in to temptation and taking advantage of a situation in which an adolescent girl persuaded herself that she was in love with him. Such “crushes” are not uncommon. The duty of the teacher, to be strongly reinforced by the criminal justice system, is to resist that temptation and to discourage such an inappropriate relationship.
This the respondent failed to do. It may be that he recognised that he was, as a result, unfit to be a teacher and so resigned. But the damage had been done.
The duty of the court is to strongly reinforce the principle that those in a position of trust must not abuse that position. It should be understood that, save in truly exceptional circumstances, such conduct as that exemplified in this case will be visited with condign punishment.
In the circumstances, although the trial judge considered all relevant matters and identified and characterised them accurately, I consider that general deterrence was given too little weight, resulting in a manifestly inadequate overall sentence.
It should not have been wholly suspended.
I do not wish to comment on the portion that would have been suspended but for the issue of delay and rehabilitation. However, given the matters relevant to Crown appeals, and in light of those matters, I consider that the result proposed by Gyles J is appropriate for the reasons he has stated. I therefore agree, albeit reluctantly, with the orders his Honour proposes. I certify that the preceding paragraphs numbered [1] – [11] are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

This is an appeal by the Director of Public Prosecutions against a sentence imposed on the respondent.
The respondent pleaded guilty to six counts of sexual intercourse with a person under the age of 16 years. The offences occurred between August and December 1991. The section of the Crimes Act 1900 (ACT) applicable to these charges provided a maximum penalty of 14 years imprisonment. In relation to each count, the respondent was sentenced to three years imprisonment to be served concurrently and to be suspended forthwith upon the respondent entering into a recognisance in the sum of $1,000 to be of good behaviour for a period of four years. The recognisance was further conditioned that the respondent accept the supervision of the Director of Corrective Services of the Australian Capital Territory and to comply with any directions in relation to participation in the courses or programs undertaken by the Department or recommended by the Department. The recognisance was further conditioned that the respondent pay the sum of $30,000 by way of reparation to the complainant by 31 October 2003. The facts
In the school year 1991, the respondent was a physical education teacher at Campbell High School. The respondent was aged 36 in November 1991. The complainant was a student at the school in year 10 and in the respondent’s class for a subject called ‘Outdoor Education’. The respondent turned 15 on 14 August 1991. The curriculum in respect of Outdoor Education included voluntary weekend camping trips to various locations, including National Parks in the vicinity of the Australian Capital Territory.
In about late August or early September 1991 as part of that program, the respondent and a number of teachers and students, including the complainant, travelled to Jervis Bay on a camping trip. On the way the complainant stated that she was cold, the respondent put his arms around her shoulders and hugged her. He kept his arm around the complainant for the duration of the two hour journey. Later that night, after the remainder of the group had gone to bed, the respondent started kissing the complainant. The respondent then had sexual intercourse with the complainant inserting his penis into her vagina.
Between August 1991 and December 1991, the respondent would often collect the complainant after school in his car and take her to locations in Canberra to have sexual intercourse. One such occasion was at Yarramundi Reach near Lake Burley Griffin, another at Pine Island at Tuggeranong. A further occasion during this period involved the respondent taking the complainant to his house after school where the complainant’s parents had been invited by the respondent and his wife to dinner that evening. An act of sexual intercourse took place in the respondent’s bedroom. On another occasion in late October or early November, sexual intercourse took place after school in a flat belonging to a friend of the respondent in Reid. In late November or early December there was also an occasion where the respondent arranged to meet the complainant in the physical education teachers’ staff room and then took her into the equipment store where sexual intercourse took place.
In early 1992 the complainant told her parents about the incidents. The parents requested that the ACT Schools Authority investigate what had occurred. In 1992, the respondent had taken a teacher exchange posting in the United Kingdom. He had left Australia in December 1991 and returned in early 1993. During the time that he was in the United Kingdom he was made aware of the allegations by a letter from the education authorities in October 1992. When he returned to Australia he was told by his union representative that if he were to resign, the parents, and presumably the education authorities, would let the matter rest. On 12 December 2002, the complainant made a formal complaint to the Sexual Assault and Child Abuse team of the Australian Federal Police and these proceedings were taken consequential upon that complaint. Appeal Principles
The principles which govern a prosecution appeal were not in contest. In particular, the requirement that an appellate court should exercise restraint before interfering with the sentence imposed at first instance, and the fact that an appeal against sentence involves a challenge to the exercise of a discretionary judgment.
In Everett v The Queen (1994) 181 CLR 295 Brennan, Deane, Dawson and Gaudron JJ said at 299-300 – … An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a ‘court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct considerations to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified’. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ, in Griffiths v The Queen – an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. The reference to ‘matter of principle’ in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting ‘error in point of principle’. (Footnote omitted)
The principles governing appeals against an exercise of discretionary judgment are also well established: for example, House v The King (1936) 55 CLR 499 at 505; Lowndes v The Queen (1999) 195 CLR 665 at 671-672 and Dinsdale v The Queen (2000) 202 CLR 321 at 334. In Wong v The Queen (2001) 207 CLR 584 Gaudron, Gummow and Hayne JJ observed at [58] – Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.
There has also been a general recognition by appellate courts that the element of double jeopardy in prosecution appeals referred to in Everett (supra) should be reflected by providing that on a successful Crown appeal, the sentence imposed should not be as severe as that which the court would have imposed at first instance. In particular, where it would not ordinarily be appropriate to substitute for a wholly suspended term of imprisonment the requirement that the respondent serve a short part thereof as actual imprisonment (see R v Cobb (1999) 84 FCR 450). It may also be noted that in the Australian Capital Territory there is no legislative requirement that, in the case of appeals against sentence, the court should pass such other sentence ‘as it thinks ought to have been passed’ as there is in some other jurisdictions (cf Papazisis & Bird (1991) 51 A Crim R 242 at 247; Court of Criminal Appeal, Victoria citing R v Carroll, unreported, Court of Criminal Appeal, Victoria, 15 October 1990).
In R v Lappas (2003) 152 ACTR 7, Cooper and Weinberg JJ referred to the statement of principles governing Crown appeals in R v Clarke [1996] 2 VR 520 at 522. I would likewise accept the principles set out in that case as applicable to a case like the present (see also R v Brewer [2004] ACTCA 10, unreported, 1 June 2004 at [3] – [5]). The grounds of appeal
The Director of Public Prosecutions’ contention was that the sentence imposed was manifestly inadequate. He also complained of the failure to give due weight to the overall seriousness of the offence and to provide adequately for deterrent and retributive factors in the sentence imposed. He did not contend that the sentence of imprisonment imposed did not properly reflect the criminality involved but rather that the decision to suspend the sentence did not constitute adequate punishment in the circumstances.
The written submissions of the Director of Public Prosecutions stressed the objective seriousness of the offence and the role that general and specific deterrence and the protection of the public should play in the sentencing process. Reference was made to the remarks of Higgins J in R v Webster, (sentencing remarks, unreported, ACT Supreme Court, SCC 50/01, 3 August 2001) at 5 – Against those considerations must be weighed the objective seriousness of the offences [namely, sexual intercourse with a person under the age of 16 years and committing an act of indecency upon or in the presence of a young person]. The abhorrence with which the community regards such offences, and the need for both general deterrents, accountability of the offender for his actions, and by no means least, acknowledgment of the grave wrong done to the child victim. It is appropriate to reiterate the comments I made on 13 November, 1998 in the matter of R v CB. I there expressed agreement with Crispin J, who in R v BJ had said, and I quote ‘The community is entitled to expect that the courts will take a firm line in relation to offences of this kind, and give due priority to the need to protect children from the depraved acts of people who may wish to exploit their vulnerability and their youth. Accordingly it is clear, that save in exceptional circumstances, a custodial sentence is imperative in cases of this kind. Indeed I should say that, in my view, save in exceptional circumstances, anyone who behaves in this way I should say should expect a quite substantial sentence of imprisonment’. These matters are important considerations to which a court must give effect when sentencing an offender for offences of the nature under consideration here. Indeed, the sentencing judge expressed similar sentiments in his remarks in this case - Nonetheless, the prisoner was a teacher at the time, and he was 35 years of age, that is, some 20 years older than the complainant. It need scarcely be said that the offences involve serious breaches of laws which are enacted with a view to protecting young people, such as the complainant, from the conduct of older people such as the prisoner. Furthermore, this is not a case of someone who was only slightly older than the complainant, as often used to come before the court when two teenagers had formed a relationship at a time when one of them was under 16. The age gap is substantial. It is also a case in which, as the learned Crown prosecutor has pointed out, there was a serious breach of trust. Parents are entitled to expect that their teenage children will go to school without having to encounter any risk of the formation of sexual relationships with teachers who may be tempted to take advantage of the special position of trust in which they are placed by the community. That much was clearly conceded by the prisoner in evidence. As he said, and I quote, ‘You can’t defend any relationship of this kind between a teacher and his pupil’. That observation is undoubtedly correct. Such a relationship is inevitably wrong, and if the young person in question is under 16, it is also a criminal offence carrying heavy penalties. Hence, I agree completely with the learned Crown prosecutor’s submission that conduct of this kind must be denounced in very strong terms. … I have given serious consideration to the Crown’s contention that the breach of trust in this case was so profound and the need for the community to be protected from further conduct of this kind is so clear that, even after taking into account all of the other factors to which I have referred, a sentence requiring him to immediately serve a term of imprisonment is inescapable. As I hope I have made clear, I have considerable sympathy for those submissions. It cannot be stressed too strongly that any teacher who forms a sexual relationship with a person under the age of 16 should expect to be sentenced to a term of imprisonment and that, save in exceptional circumstances, it will be inappropriate to wholly suspend that sentence.
Notwithstanding these sentencing remarks, the written submissions of Mr Refshauge SC, the Director of Public Prosecutions, focussed upon what he said were demonstrable errors by the sentencing judge. Those submissions refer to the treatment of the question of remorse and of too much weight being given to the factors concerning delay in the prosecution of the offence. It is also submitted that the sentencing judge should not have found that there were exceptional circumstances. Remorse
In respect of remorse, the sentencing judge said – He has expressed remorse not only after being charged, but to friends and associates well prior to any charges being brought. He also expressed remorse in evidence before me, and I have no doubt of the sincerity of his evidence. Furthermore, between 1997 and 2001 that remorse drove him to seek counselling which he had on some 30 occasions over a period of three or four years.
It was put that it was not correct to characterise the remorse demonstrated by the respondent as being such as to drive the respondent to seek counselling. True it is that the respondent said that the catalyst for the counselling was the death of his mother some six years after the offences. Nevertheless, the genuine remorse, which was accepted by the sentencing judge, and its expression in the evidence given before the sentencing judge justifies the general thrust of the sentencing judge’s comments. In any event, it is difficult for an appellate court to go behind this finding based as it is on the sentencing judge seeing and hearing the respondent give that evidence.
In his oral submissions, Mr Refshauge criticised the acceptance by the sentencing judge that the acts occurred consensually and in the context of mutual affection without the sentencing judge taking into account as a countervailing consideration the abuse of the position of trust benefiting only the respondent.
The sentencing judge said this – Whilst what the prisoner did was wrong, I do not accept that, at the time, he saw himself as a sexual predator, or that he consciously decided to exploit the position of trust in which he found himself. That does not mean, of course, that he did not have some recognition of what he was doing was wrong.
There is a justifiable concern that the commission of the first offence was truly exploitative and committed without a proper appreciation either at the time or for some time afterwards of the enormity of the conduct. It is the vulnerability of the complainant and the abuse of the relationship of the teacher and student together with the exploitation of opportunity arising from that relationship which makes that conduct so serious and merits severe punishment. That said, I am not satisfied that the passage in the sentencing remarks indicates that the sentencing judge did not properly take account of these factors. Indeed, he observed that if he was sentencing the respondent in the year following the offences, then the only course open to him would have been to impose a sentence of imprisonment requiring the service of a significant proportion of the term. I do not think that it can be fairly said that he was minimising the objective seriousness of what the respondent had done. Delay in prosecution
The fact that the sentencing judge took into account and placed emphasis on the delay that had occurred between the occurrence and prosecution of the offences was also criticised by the Director. The sentencing judge referred to a principle that – … there may be circumstances in which it may be inappropriate to impose a custodial sentence, even if warranted at the time of the commission of the offence, because there has been an extended delay not attributed to any fault of the offender during which he has rehabilitated himself and started a new life.
The present case is not one of delay on the part of the prosecuting authorities such as in Crawley v The Queen (1981) 55 FLR 463 where the cause of the delay was not explained by the prosecuting authorities. There can be no doubt that in a case where fault can be attributed to the offender then it would not be appropriate to give any discount. In R v Whyte [2004] VSCA unreported, 13 February 2004, the appellant confessed to murder some 16 years after its occurrence. Winneke P observed (at [25]) – … I do not think his Honour erred in according to the fact of ‘delay’ little significance. Delay will very frequently be a matter of mitigation, particularly where the accused has used the time involved to rehabilitate himself or herself. For the respondent, Mr Ross contended that the concept of delay as a mitigating factor cannot figure largely in the sentencing process where the delay is ‘self-inflicted’; rather it will become a major mitigating factor if the delay was not due to the fault of the accused but rather the fault of the prosecuting authority or the system of the administration of justice (cf R v Miceli (1997) 94 A Crim R 327; R v Todd (1982) 2 NSWLR 517 at 519). Where, however, the delay cannot be sheeted home to the prosecution or the system, but can be fairly attributed to the accused, such as absconding from bail, fleeing the jurisdiction or otherwise avoiding being brought to justice, delay must necessarily become of less significance, even to the point of giving less credit for rehabilitation established during that period.
An important aspect of the present case is the fact that in 1992 the respondent acknowledged his commission of the offences to the education authorities. Further, he resigned from his teaching position. Although it is said that in doing so he avoided disciplinary proceedings, it is the respondent’s evidence that he intended to resign in any event. It was apparently the authorities who determined to do nothing further, albeit that the respondent was informed that the complainant’s parents only wished to ensure that he did not remain as a teacher. In those circumstances, it cannot be said that this is a case where the respondent absconded or maintained a silence which meant his crimes went undetected.
The consequence was that over time, the respondent took positive rehabilitative steps for which he can now claim, and is entitled to, credit. The rehabilitation has not arisen consequent upon some action by the offender to avoid the consequences of the offence (cf R v Thompson (1988) 37 A Crim R 97). In R v Todd [1982] 2 NSWLR 517 at 519-520, Street CJ said – Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
This approach was approved by the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ in Mill v The Queen (1988) 166 CLR 59). Both those cases were concerned with sentencing an offender who comes to be sentenced many years after the commission of an offence, because during the intervening period he has been serving a sentence in another State for offences of the same nature and committed at about the same time. However, the comments of Street CJ in Todd (supra) appear to have more general application and I consider them appropriate to the present case. In the present case, I consider that it was open to the sentencing judge to give the effect that he did to the respondent’s rehabilitative efforts and the responsibilities that he had undertaken in the intervening years since the commission of these offences. He was not in error in doing so. Exceptional Circumstances
The written submissions of the Director of Public Prosecutions complain that the sentencing judge relied upon the respondent’s good character and the hardship that imprisonment would cause the respondent’s family as circumstances exceptional enough to justify the suspension of a custodial sentence. This was not a matter addressed in oral submissions before the court, but in any event, the complaint seems to be based on a misunderstanding of the sentencing judge’s reasons. The reasons do not isolate these factors and conclude that they made the case exceptional. They were but two of a number of matters to which the sentencing judge specifically adverted in considering the question of exceptional circumstances. The sentencing judge had regard to the respondent’s character describing him as – … a person of exceptional honesty and candour, a person who has an empathy for other people, a person who has gone out of his way to assist others in times of need and, in particular, a person who seems to have otherwise had an empathy and a concern for the wellbeing of young people. He had regard to the respondent’s expression of remorse which he did not doubt was sincere or genuine. He regarded that remorse as further evidenced by an offer of reparation. He took into account what he regarded as the respondent’s completely successful rehabilitation. He considered the probable effect of a sentence of imprisonment on the respondent’s family and dependents. It was the combination of these matters that justified the sentencing judge in concluding that the circumstances were sufficiently exceptional to warrant the exercise of his discretion in suspending the sentence that he considered otherwise appropriate. In other words, the good character aspect and the impact on the respondent’s family were only part of the circumstances considered exceptional by the sentencing judge. I am not able to see how they have been taken out of context or over emphasised by him.
It follows that I am not able to conclude that any error has been shown in the approach that the sentencing judge took. Suspension of sentence
The question remains, in the circumstances of this case, whether the suspension of the whole of the sentence was appropriate.
The court is not to pass a sentence of imprisonment on any person for an offence unless the court is satisfied that no other penalty is appropriate in all the circumstances of the case (see s 345 (1) Crimes Act 1900 (ACT)). The court is called upon to determine that a sentence of imprisonment is appropriate before it can consider suspending the sentence. Section 403 of the Crimes Act 1900 enables the court on sentencing an offender to a sentence of imprisonment, to direct the release of that person either forthwith, or after service of a specified part of the imprisonment, upon a recognisance of good behaviour upon conditions being given. There are no legislative guidelines set out to govern the exercise of this discretion. In Dinsdale v The Queen (supra), the High Court had occasion to consider the matters which might affect that discretion. In that case, Kirby J, with whom Gleeson CJ, Gaudron, Hayne and Gummow JJ generally agreed, discussed the matters to be considered by a court when considering a suspended sentence. That case concerned the particular provisions of the Sentencing Act 1995 (WA) but they have relevance to the discretion to suspend sentences in the ACT pursuant to s 403 of the Crimes Act 1900. In Dinsdale at 346 [80-81], Kirby J said – The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend. A number of attempts have been made to resolve this tension and to provide guidance concerning the circumstances in which a sentence of imprisonment should be suspended. There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender, which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is therefore largely one of emphasis. [Footnotes omitted]
In respect of the principles to be applied in the ACT, the Full Court of the Federal Court, Burchett, Miles and O’Loughlin JJ, in The Queen v P (1992) 39 FCR 276, said (at 285) – There is little by way of judicial authority on the precise question of when a suspended sentence of imprisonment is appropriate. D A Thomas, in Principles of Sentencing (1982) discusses the principles which are applied in the English Court of Criminal Appeal, mostly in unreported decisions. The making of an order for suspension does not justify the imposition of a sentence of imprisonment when an immediate sentence of imprisonment would be wrong in principle. The proper length of the term should be fixed having regard to all relevant factors, and the suspension does not justify a term longer than that appropriate for an immediate sentence. As Thomas observes (at p 244), all factors which are relevant to sentence should be taken into account before deciding that a sentence of imprisonment is appropriate and what the length of the term should be. In considering whether or not the term so fixed should be suspended the sentencing judge must either give double weight to some factors for which the judge has previously made allowance or look for new factors which are not relevant to the factors already considered. Nevertheless the exercise must be undertaken. In undertaking it, the judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy to which King CJ referred in Osenkowski [R v Osenkowski (1982) 30 SASR 212], or for some other sufficient reason should have this particular avenue opened to him, provided the conditions of the suspension are observed. These principles find support in the views of Mitchell ACJ in R v Palliaer (1983) 35 SASR 569 where her Honour said (at 571): “The proper approach was to decide first whether there was any appropriate alternative to imposing a sentence of imprisonment; if the answer to that was in the negative then to decide what was the proper term of imprisonment to be imposed; and then, and only then, to decide whether it would be appropriate or inappropriate to suspend the term of imprisonment.” It is also timely to remember the remarks of Bray CJ that a suspended term of imprisonment is truly a punishment. In Elliott v Harris (No 2) (1976) 13 SASR 516 at 527 the learned Chief Justice was considering an appeal on penalty from a magistrate who was reported as having said: “I agree with the view currently prevailing in England that a suspended sentence is really no punishment at all.” Bray CJ said of this statement: “It reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency.” These remarks apply with equal force and effect in the Australian Capital Territory and to the application of s 556B(1)(b) of the Crimes Act [now s 403 of the Crimes Act].
Similarly, Kirby J in Dinsdale (at 348) would not confine the exercise of the discretion to the effect of it by reference to rehabilitation of the offender either wholly, mainly or specially. He considered that the same considerations that are relevant to the imposition of the term of imprisonment must be revisited in determining whether to suspend the term. Kirby J also notes that his approach was criticised by Mr Bagaric in an article Suspended Sentences and Preventative Sentences: Illusionary Evils and Disproportionate Punishments, (1999), Vol 22, UNSW Law Journal, 535. In that article the author describes the approach as an ‘absurdity’, because an immediate term of imprisonment is a sanction of last resort and can only be imposed if the sentencer is satisfied that the purpose or purposes for which the sentence is imposed cannot be imposed by a sentence that does not involve the confinement of the offender. He was there referring to s 5 of the Sentencing Act 1991 (Vic). But in this case, s 5(4) of that Act expressly gives effect to that constraint on the sentencer. The same proposition does not hold for the provisions of s 345 of the Crimes Act 1900 (ACT) which restricts the passing of a sentence of imprisonment ‘unless the court, after having considerable other available penalties, is satisfied that no other penalty is appropriate in the circumstances of the case’. The suspension of a sentence under s 403 Crimes Act is not an ‘available penalty’. In R v Liddington (1997) 18 WAR 394 at 402, in respect of this matter, Ipp J commented – I see no incongruity in such an approach. After all, it is generally recognised that the seriousness of the crime is a factor that can militate against the suspension of a sentence. Yet the seriousness of the crime is a factor that will influence the length of the sentence imposed. Accordingly, just as the gravity of the offence and other aggravating circumstances will be taken into account both in determining the length of a term of imprisonment and whether that term should be suspended, so, in my view, should all mitigating circumstances be taken into account, not only in determining the length of the term of imprisonment, but in deciding whether or not to suspend that sentence.
In Dinsdale, Kirby J noted that New South Wales had abolished the concept of suspended sentences in 1974 but had subsequently restored them. The Law Reform Commission of New South Wales in Discussion Paper No 33 published in 1996 accompanying that recommendation set out what the Commission saw as the justification for the power to suspend sentences. The Commission said at para 9.62 – There are situations, conceivably limited in number and scope, where a suspended sentence of imprisonment would be the preferred sentencing option. A precondition of its use would be that the offence is so serious that it requires a custodial sentence to be imposed, particularly for reasons of denunciation. It would also have to be clear that the threat of imprisonment would be a sufficient specific deterrent for the individual offender, and that considerations of general deterrence are not paramount. Further, a suspended sentence would be appropriate when rehabilitation would thereby be promoted and there was no question of need to incapacitate (sic) the offender.
The point at issue here is whether it was open to the sentencing judge to exercise his discretion to wholly suspend the sentence of imprisonment in the circumstances of this case. As far as this court is concerned, the approach to be taken is that adopted by Gaudron and Gummow JJ in Dinsdale at 329 [22] – In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been ‘upon the facts … unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’: House v The King (1936) 55 CLR 499 at 505. Was the sentence ‘manifestly wrong’? House v The King (1936) 55 CLR 499 at 505.
The comments of the Full High Court in Lowndes v The Queen (supra) at 671, are also of significance. There the court said – Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.
I consider that it was open to the sentencing judge to consider that the present case was wholly exceptional. I am not satisfied that the sentencing judge erred in adopting that approach. I would dismiss the appeal. I certify that the preceding paragraphs numbered [12] – [45] are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

This appeal concerns an issue of increasing importance in the criminal justice system – the effect upon sentencing of delay in the reporting and so prosecuting of sexual abuse of young persons by persons in authority. I have had the advantage of reading in draft the judgment of Gray J which explains the issues that arise on the appeal. However, I have the misfortune to disagree with the conclusions of Gray J. In my opinion, the objective nature and circumstances of the offences demanded that a substantial period of imprisonment should actually be served by the respondent and the primary judge was in error in wholly suspending the sentence of imprisonment that was imposed.
The description of the circumstances of the offences in the statement of facts upon which the respondent pleaded guilty is as follows - In the school year commencing January 1991 and ending December 1991 (SP) (DOB 19th Nov 1955) was a physical education teacher at Campbell High School and the complainant … (DOB 14th August 1976) was in year 10. (SP) was the complainant’s physical education teacher and her teacher for a subject called Outdoor education. The curriculum for that subject included voluntary weekend camping trips to various locations, including National Parks in the vicinity of the ACT. O3/4342 In about late August early September 1991 as part of the Outdoor education program, (SP) and a number of teachers and students, including the complainant travelled to Jervis Bay on a camping trip. On the way to Jervis Bay, after the complainant stated she was cold, (SP) put his arms around her shoulders and hugged her. He kept his arm around the complainant for the duration of the journey, which was about two (2) hours. After the group had arrived at Jervis Bay they set up camp and later in the evening after the remainder of the group had gone to bed, (SP) started kissing the complainant. (SP) and the complainant went to the shower block, which was near the camping area and undressed. (SP) had sexual intercourse with the complainant by inserting his penis into her vagina. O3/4343 During the period, August 1991 to December 1991, (SP) would often collect the complainant after school in his car, take her to a location in Canberra, and have sexual intercourse. On one occasion (SP) took the complainant to Yarramundi Reach near Lake Burley Griffin. (SP) and the complainant went into the trees with a blanket where they partially undressed. (SP) had sexual intercourse with the complainant by inserting his penis into the complainant’s vagina. Whilst (SP) and the complainant were having sexual intercourse they were interrupted by male. After the male had left (SP) and the complainant got dressed and left the area. O3/4344 On one occasion during this period (SP) took the complainant to his house after school. The complainants’ [sic] parents had been invited by (SP) and his wife to dinner that evening. Shortly after (SP) and the complainant arrived at his house they went into his bedroom, undressed and (SP) had sexual intercourse with the complainant by inserting his penis into the complainant’s vagina. O3/4345 On another occasion during the period August 1991 to December 1991 (SP) and the complainant went to Pine Island near Tuggeranong in the ACT. Whilst (SP) and the complainant were lying on a beach near the river, (SP) had sexual intercourse with the complainant by inserting his penis into her vagina. O3/4346 In late October or early November 1991, after school had finished for the day, (SP) took the complainant to a flat in Reid ACT. This flat belonged to another teacher who at that time was a friend of (SPs) and, who was on holiday in New Zealand. (SP) had the key to the flat. (SP) and the complainant went into lounge room of the flat, lay on the lounge and (SP) had sexual intercourse with the complainant by inserting his penis into her vagina. Later the complainant left the flat and walked into Civic where she met her father. O3/4347 In late November or early December of 1991 the complainant waited for (SP) at Campbell High School. (SP) had arranged for them to meet in the Physical Education Teachers staff room, which is located in the school gymnasium. (SP) took the complainant into the equipment store, which is located in the gymnasium. After they went into the store room both the complainant and (SP) undressed and he had sexual intercourse with the complainant by inserting his penis into her vagina. There were a number of other occasions during the period from August to December 1991 where (SP) and the complainant engaged in sexual intercourse.
The statement of the complainant dated 12 December 2002 which was in evidence included the following as to the first offence - One such trip was to Jervis Bay, this was the first time I went on one of these trips. I remember the event clearly as it was the first time I had sex with (SP). I am unsure of the specific date but I think it was late August early September 1991. I had just turned 15 years old a few weeks earlier. I remember sitting in the back of a Nissan Patrol, which belonged to one of the other teachers. I was sitting in the back seat and (SP) was sitting between me and a girlfriend. I remember complaining of the cold and (SP) put his arm around my shoulders and hugged me. (SP) kept his arm around me for the duration of the journey, which would have been for a period of a couple of hours. Once we arrived in Jervis Bay we set up camp. There were four teachers including (SP) and about five students. The teachers present were Erica BROWN, Simon SPINETTI, and Belinda BARLETT. The other students were Clare MACKAY, Richard TAYLOR, a male called Adrian BURGESS. There was another girl present but I can’t remember her name. During the evening (SP) and I found ourselves to be the last two members of the group awake. I am unsure of the time but it was late and I am unsure of how it occurred but we found ourselves kissing. Shortly after we went to the shower block, which was adjacent to our camping area. We undressed and were completely naked and we turned on the shower and closed the door to the shower. (SP) inserted his penis into my vagina, I don’t remember if he had a condom on and I can’t remember if he ejaculated inside me on this occasion. This was a consensual act. As to the course of conduct, the statement included the following -

The offences only ended when the respondent left for a teacher exchange posting in the United Kingdom in December 1991.
The evidence which the respondent gave concerning the end of the relationship was as follows - When you were first apart, did you write to each other?---We did. And did you declare your feelings in your letters to her?---Guardedly because obviously those letters were going to be going to her home address and at this stage – and she had shown no desire to tell her parents about the relationship. And did she declare her feelings for you in the letters that she wrote to you?---Even more strongly than in me to her, your Honour, and that’s one of the reasons why I found it hard to keep on getting letters. Did you make a decision whilst in the UK to write to (the complainant) and end this relationship?---Well, yes. Would you like me to expand on that? Yes?---Your Honour, whilst I was in the UK, a bit of physical distance and a bit of, I suppose you call temporal distance, gave me a bit of perspective and I was actually teaching in a school with a former physical education student colleague of mine from the university that I had studied and he was a very close friend of mine and we discussed this and the more I discussed it with him, the more I realised that this was a totally inappropriate relationship and a totally inappropriate course of events and the nature of the letters that I was getting from (the complainant) showed that her feelings were still strong and I was worried that my now ex-wife would find all of those letters and I would be confronted with a situation, indeed as I am today, and I didn’t have the guts or the anything to face it at that stage, but more importantly, your Honour, I realised that it was just not wrong – it was just wrong and my friend and I talked about it and I just knew it couldn’t continue, I had to stop the relationship. (Emphasis added)
The victim impact statement provided for by s 343 of the Crimes Act 1900 dated 16 September 2003 which was in evidence gives a harrowing account of the devastating effect which the conduct of the respondent has caused the complainant over the intervening years, all of which was entirely predictable in the case of a vulnerable 15 year old schoolgirl, and repays reading.
There are simply no extenuating circumstances in relation to the commission of the offences. No matter what ex post facto impression may have been gained by the primary judge from the evidence given by the respondent 12 years after the event, the statement of facts to which he pleaded unequivocally reveals an initial cynical abuse of a vulnerable girl by a trusted and personable teacher 20 years her senior purely for sexual gratification, followed by a systematic and deliberate pattern of exploitation for some months thereafter involving deception, amongst others, of the parents of the complainant and the wife of the respondent, including an occasion in the respondent’s house prior to the complainant’s parents arriving for dinner.
Apparently the respondent made some attempt to blame marriage difficulties when speaking with those who prepared the pre-sentence report. His evidence as to that was - And there’s been some reference to it, but I ask you now to tell his Honour what was the state of your marriage at that time?---Your Honour, my wife and I were – she was studying a degree at the ANU and I was teaching and as a result of it we were at different places at different times and barely saw each other. Retrospectively I believe it might have been organised that way, but it was not a happy marriage. We had grown apart, my wife and I had recently reconciled after a separation and it was cold. I believed at the time that I loved her and that she loved me, but looking back on it, it was tortuous. A good friend of mine told me that he didn’t know how I managed to get through that part of my life. His evidence, however, was that his sex life with his then wife was reasonable. Any attempt to attribute the objective circumstances of these offences, particularly O3/4342, to some marriage difficulty of an unspecified character is far fetched.
If the offences had come before the Court in a timely fashion, the only factors of a subjective nature to be seriously considered would have been a plea of guilty and previous good character. It is well recognised that previous good character has a limited role to play in cases of this kind (Ryan v The Queen (2001) 206 CLR 267). Given that the maximum penalty for each offence was 14 years imprisonment, it would have been virtually inevitable that the combined effect of the head sentences would have been well in excess of three years. Although it is not possible to reliably recreate that hypothetical situation, in my opinion, it is most unlikely that the effective head sentence would have been less than six years in order to adequately reflect the criminality involved. As recognised by the primary Judge, it would have been inevitable that a significant proportion of the head sentence would have actually been served. It is unlikely that less than three years would have been served prior to suspension or parole. The purposes of punishment, general deterrence and denunciation would have so demanded. The fact that serving a substantial period of imprisonment at that stage would have seriously interfered with the life of the respondent and those with whom he was involved would have been no answer.
Thus, delay and subjective factors consequent upon delay have led in this case to a very lenient head sentence which in turn has been wholly suspended. This result requires some analysis of the reasons for and the effect of the delay. The evidence on that point is not entirely satisfactory. The statement of facts was as follows - In 1992 the complainant told her parents about the incidents involving her and (SP) and requests were made with the ACT Schools Authority to investigate what had occurred. (SP) at this time was on a teacher exchange posting in the United Kingdom. He had left in December 1991 and he returned in January 1993. (SP) was made aware of the allegations made by the complainant whilst he was in the United Kingdom and upon his return to Australia he resigned from the Schools Authority.
The evidence of the complainant in her statement was as follows - In December 1991 (SP) got on a teacher exchange posting to the United Kingdom. We maintained a relationship via letters, however one day I received a letter from him which said in effect not to write to him anymore. I waited for a few months and would have been early 1992 when I told my parents about what had happened between (SP) and I. My parents were upset and my Father wrote to the ACT Department of Education in order for them to investigate.
The evidence of the respondent was as follows - And did you receive a letter from the teaching authorities that outlined the allegations?---Yes, I did, in October of that year as I remember, your Honour. HIS HONOUR: Sorry, October of what year?---Of 1991. Sorry? ---Of 19 – of sorry, 1991. October of 1991?---Yes. You received a letter from the education authorities referring to this incident. MR PURNELL: I think that’s ’92 your Honour?---Sorry, ’92, I beg your pardon, ’92, yes, I beg your pardon. And at this stage, you’d been in the UK for about 9 months or thereabouts? ---That’s correct. Teaching?---Yes, that’s correct. HIS HONOUR: When were the charges laid? MR PURNELL: Just recently, your Honour. HIS HONOUR: After the department had known of them, of the situation for a decade? ---That’s correct. MR PURNELL: I think that’s common, your Honour. The letter that you received, did it suggest a response by you or was it simply a notification of the allegations?---As I understood it, and I made a couple of phone calls to people in the ACT at the time, they were teaching colleagues who made some enquiries on my behalf. I understood it that they were just outlining a set of allegations that would be dealt with upon my return. And did you return from the UK in January of ’93?---I did, your Honour, early ’93. And when you came back did you resign?---Yes, I went to see Clive Hagar, who was my union representative, and we had a discussion and I resigned instantly. Now in relation to that discussion, was there told to you what you understood was a demand from (the complainant’s) parents in relation to your teaching future?---That’s correct, I was told - - - What was that?---I was told that the student and parents involved quote, unquote, didn’t want to hang me out to dry, they merely believed that I shouldn’t be in teaching any more, which I thoroughly concurred with, and I’d already decided I would resign anyway, and they wanted me to resign from teaching so it fitted in neatly with what I intended to do anyway. Now - - -?---Sorry, could I just add one thing, your Honour. I was also told that – by Clive Hagar that if I were to resign that they would let the matter rest and that would be the end of it. Sorry.
No evidence was called from the Department of Education or from the union representative.
The finding of the primary judge was as follows - There is one further factor which must also be considered in the particular circumstances of this case, and that is delay. It has been repeatedly observed in courts that justice delayed is justice denied, and this case offers a classic example of it. Notwithstanding the factors that I have referred to, if I were sentencing this man in the year following these events, that is in 1992, I may well have been inclined to conclude that the only course open to me was to impose a sentence of imprisonment requiring him to actually serve at least a significant portion of the specified term in prison before he could be eligible for parole. However, 12 years have rolled by. He is no longer 35 but nearly 48 years of age. More significantly, during the intervening period he has married and had three children, one of whom has an autistic condition. That marriage has failed in part, I accept, because of the tension between himself and his former wife over the incidents which gave rise to these charges. He has since formed another relationship with a woman with two children who now share a close relationship with him. As the Full Court of the Federal Court of Australia has previously observed, there may be circumstances in which it may be inappropriate to impose a custodial sentence, even if warranted at the time of the commission of the offence, because there has been an extended delay not attributed to any fault of the offender during which he has rehabilitated himself and started a new life. Those considerations, it seems to me, are even more cogent when that new life has involved bringing children into the world who were not born at the time of the offences, and when their lives might be significantly affected by any sentence of imprisonment that might be imposed.
There is no suggestion that the allegations were passed on to the police or prosecuting authorities at the time by the ACT Department of Education to whom the parents made the complaint. Even if the double hearsay version of the parents’ attitude referred to in the respondent’s evidence were to be accepted as true, the subjective approach of individual parents is of little significance when dealing with law enforcement of this kind, particularly where it is clear from the complainant’s statement and from the victim impact statement that there had been a serious falling out between her and her parents at the relevant time. The complainant can hardly be blamed for not independently raising the matter earlier. The emotional and psychological trauma which the victim impact statement so graphically describes is a ready explanation.
The most important consideration in relation to delay is the conduct of the respondent. He did not report and confess to the Department of Education or to the police. He did not contact the complainant or her parents to confess, apologise or offer reparation. He participated in an arrangement involving the education authority to suppress the truth.
In R v Law (1995) 84 A Crim R 142, the Queensland Court of Appeal considered an appeal against sentence where the respondent had pleaded guilty to one count of attempted sodomy, 11 counts of sodomy and 10 counts of dealing with a boy under the age of 14 years, the offences occurring between 1962 and 1968. The complainant was under 12. No complaint was made until 1983. There was a considerable delay in the investigation of the complaints by the police. Sentences were imposed in 1995. The sentencing judge took into account as a mitigating factor the length of time between the commission of the offences and the sentence. The Court said (at 145) - It is difficult to see why lapse of time between commission of an offence and sentence should be a mitigating factor in sentence unless that delay has resulted in some unfairness to the offender. There are two obvious cases in which that will be so and in which, consequently, it has been said that that unfairness should mitigate the sentence which should otherwise be imposed. The first is where there is delay between the date of apprehension of the offender, or first indication to him by some person in authority that he is likely to be prosecuted, and the date of sentence, in consequence of which the offender may have had his liberty curtailed or his reputation called in question or, at least, left in a state of uncertainty caused by a failure to prosecute his case more quickly. Duncan (1983) 9 A Crim R 354 is an example of that. There the offender was advised, when he was declared bankrupt in 1979, that his conduct constituted the offence for which he was eventually convicted and sentenced in 1982. So too are Crawley (1981) 5 A Crim R 451 at 458, Jones and Harris (1989) 41 A Crim R 1 at 19 and Kane [1974] VR 759 at 767. The rationale for mitigation in these cases is analogous to that for which, in jurisdictions where a right to a speedy trial is constitutionally or legislatively guaranteed, proceedings may be stayed because of such delay. See for example Barker v Wing 407 US 514; US v Marion 404 US 307; Mills (1986) 26 CCC (3d) 481. See also Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; Braham (1994) 73 A Crim R 353, by contrast, is an example of a case in which the offender, because initially a nolle prosequi had been entered against him, probably thought during the subsequent period of delay until his further arrest, that “he had escaped the clutches of the law” and in which in consequence, it was held that the delay should not mitigate the sentence: at 365–366. See also 356. See also Glennon [1993] 1 VR 97. The second is where the time between commission of the offence and sentence is sufficient to enable the court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress. That factor was referred to by Street CJ in Todd [1982] 2 NSWLR 517 at 519, 520 in a passage cited with approval by the High Court in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468 at 470–471. See also Bell [1982] Qd R 216 at 220; (1981) 5 A Crim R 347 at 351; Quinlivan (unreported, Court of Criminal Appeal, Vic, File No 291 of 1994, 23 May 1995). Duncan is also an example of this.
It is difficult to see unfairness in this sense in the present circumstances. The respondent believed that the matter was ‘dead and buried’ by the negotiations his union representative had conducted. He then went about his business on that footing until the matter was brought up again. He simply relied upon inaction by others and lived a normal life thereafter. It would send the wrong message both to persons in positions of trust, who abuse that trust for sexual gratification, and to their victims, if lenient treatment were to be accorded to those who do not bring the crime to the attention of the prosecution authorities and rely upon the inaction of others to avoid it coming to light. It is now notorious that public and private education authorities throughout Australia (and elsewhere) have been ineffective in dealing with the problem of sexual abuse by teachers and others in positions of authority with the result that those teachers may evade prosecution. That failure should not be turned to the advantage of offenders and so impede the proper administration of justice.
There is no suggestion of any particular delay since the complaint to police. This is not a case in which the respondent has even suffered any concern about the sword of Damocles hanging over his head. He thought that he was ‘off the hook’. He should have been punished shortly after the offences. He escaped that punishment. His life would be disturbed by serving a term of imprisonment now. His life would have been disturbed if he had been sentenced at the appropriate time. This is not a case in which ill health or other such circumstance has arisen in the meantime. I do not detect any unfairness to the respondent in what has occurred. He is the author of his own misfortune in every respect.
In relation to delay, it needs to be borne in mind that, if the respondent had confessed his actions to the prosecuting authorities on return from England in 1993, he would have served his punishment long before this and then been able then to reorder his life. The fact that he did not do so, and ran the risk that the prosecuting authorities may become involved later, should not count in his favour (cf R v D’Arcy (2001) 122 A Crim R 268 per McPherson JA at [147]).
Rehabilitation in a case of this kind is a difficult topic. The respondent took the step of removing himself from a situation of teacher/pupil relationship. There is nothing to indicate that his change of employment to the real estate industry has been to his particular disadvantage. He was plainly unsuited to being in contact with teenage girls. That step having been taken, and bearing in mind his antecedents, it was then, and still is, inherently unlikely that he would re-offend. The primary judge was prepared to find that his present remorse is genuine. This might be accepted, although the primary judge does appear to have read too much into the counselling which he undertook. That was plainly triggered by the death of his mother, not the late onset of remorse for his conduct in relation to these offences. Remorse is some indication of rehabilitation in the sense of reformation of attitude.
The principal factor which appears to have influenced the primary judge in the sentencing decision was the present personal situation of the respondent. That is revealed by the final paragraph of the primary judge’s remarks upon sentencing which were as follows - In the present case, however, there are, in my view, exceptional circumstances, and I do not accept that the need for general deterrence must include consideration of all of the other factors referred to in the Crimes Act and ultimately require me to take a step which is likely to have a seriously detrimental impact upon the lives of this man’s three innocent children, all of whom have been born since this incident, his new partner, and the two further children to whom he relates as a step-father and who were also born since this incident. Sadly, no one can undo the psychological harm that has been done to the complainant and taking a course which risks harming a number of children would only compound the damages caused by his wrongful conduct.
That is no doubt a relevant consideration to take into account. It is worth noting, however, that the respondent and his then (second) wife separated in early 2001 and were divorced in 2002. After the respondent gave evidence as to his obligations towards his children, which were obviously designed to seek to found a submission that he should not serve any actual time in custody because of those obligations, the Crown called his second wife in reply. She gave evidence that she would be in roughly the same financial situation with or without assistance from the respondent because of the way the Social Security system works. The present de facto arrangement was only entered into in the middle of 2002. The problems in taking account of hardship to family have been examined in a number of cases including R v Wirth (1976) 14 SASR 291; R v Carpentieri (2001) 81 SASR 164; R v Edwards (1996) 90 A Crim R 510. In my opinion, the submission by the Director that there was an error in principle involved in regarding these family circumstances as exceptional is sound. Most offenders have family ties and third party relationships which would be disturbed if time in custody is served. In my opinion, it was appellable error to elevate that circumstance to a critical level in the sentencing process.
In any event, even if all of the factors in favour of the respondent occasioned by the delay are given full weight, they are fully reflected in an effective head sentence of three years which represents approximately one half of the sentence that would have been ordered if the matter had been dealt with at the proper time. There is no appeal against the adequacy of the head sentences.
The real question is whether the primary judge was in error in fully suspending the sentence.
In Dinsdale v R (2000) 202 CLR 321 Kirby J said (at [86]) - Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. It is worth noting in passing that there needs to be caution in considering some of the statements in Dinsdale, particularly the passages from the judgment of Gleeson CJ and Hayne J at [13]–[16], because of the particular provisions of the Western Australian legislation that were being considered, and which are by no means the same as the Australian Capital Territory provisions.
In R v P (1992) 39 FCR 276 the Court allowed a Crown appeal for the purpose of setting aside the order suspending the execution of a sentence and the consequent bond, although confirming the head sentence and, in lieu, ordering that a period of imprisonment be served. The Court said (at 286) - In our opinion, the learned sentencing judge fell into error when considering the prospect of the restoration of the marriage and the family unit; he gave excessive weight to the subject, thereby diminishing the deterrent and retributive factors that were required in the sentencing process. Conduct such as the respondent’s towards a young child calls for condign punishment. The period of time during which it occurred, the serious nature of the acts of indecency and the frequency with which this type of offence is occurring demanded, in the circumstances of this case, a custodial term of imprisonment.
In R v Lappas (2003) 152 ACTR 7, Higgins CJ said (at [46]) - The question is whether the objective seriousness of the offences is such as to require in the public interest, the imposition, even on a person suffering the mental impairment found to have afflicted the respondent, of some period of actual incarceration. And Cooper and Weinberg JJ said (at [138]) -

In R v Brewer [2004] ACTCA 10 the Court said (at [23]) - We are satisfied that for offences of this objective seriousness by an offender of these antecedents, a sentence of imprisonment with some at least of the time to be served is necessary, and that the decision to wholly suspend the sentence was an appealable error. In our view, nothing less than a period of actual imprisonment would meet the needs of punishment and general deterrence in this case.
These passages reflect a long-established approach to the rather similar issue of setting a non-parole period as determined by the High Court in Power v R (1974) 131 CLR 623 and followed ever since. A non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention, taking into account matters such as punishment, deterrence and denunciation.
As Gallop J said in R v Hillsley (1982) 34 FCR 148 (in this respect on behalf of the Court) (at 158–159) - The factor of retribution for these offences must be given more weight than is reflected in a non-parole period of four years… It is clear law that the nature of the crime is a relevant factor for the sentencing judge to take into account in fixing a non-parole period because a more serious offence will warrant a greater non-parole period due to its deterrent effect upon others …
It may be granted that, because of the width of the discretion given by s 403(1)(b) of the Crimes Act 1900 (the Act), a sentencing judge is entitled to have regard to factors that have been considered in relation to the head sentence when considering whether to suspend the sentence. In this sense there may be double counting. However, going through that process should not lead to an exaggeration of subjective and merciful grounds in mitigation of sentence. The purposes for which a sentence may be imposed laid down by s 341 of the Act remain paramount. In my respectful opinion, the primary judge fell into error by not asking himself whether those purposes were properly served by wholly suspending a sentence which had already taken full account of subjective factors caused by the effect of delay including the interests of the respondent’s family. In my opinion, the only reasonable answer to that question is ‘no’. The nature and circumstances of the offence and the course of conduct involved required that a significant term of imprisonment be actually served for the purposes of punishment, general deterrence and denunciation. In my view, that period could not have been less than 18 months for the statutory purposes to be served. In considering suspension of sentence it is relevant to take into account the fact that an offender of the antecedents and place in life of the respondent is most unlikely to re-offend or otherwise to breach the recognisance and is not in need of and will not benefit from parole supervision in the usual way. That very much reduces the actual punitive effect of, and rationale for, a suspended sentence (Brewer at [21]–[22]).
The principles governing appellate intervention are well known. The cases are referred to in Brewer at [3]–[5] and in the judgment of Gray J. I have indicated in the course of these reasons some respects in which, in my opinion, the primary judge fell into error of principle. Fundamentally, however, in my opinion, the sentence was manifestly inadequate. The question remains as to whether the sentence should be increased. There are special principles governing the grant of Crown appeals referred to in Lappas at [32]–[34] and [119]–[121] that recognise that it will not always be right to increase a sentence to that which should have been awarded at first instance. Furthermore, service of a significant period of actual custody may affect the appropriateness of the condition of suspension of the sentence as to payment of compensation to the complainant. In all the circumstances, and with some hesitation, I would not disturb the sentence in this case.