However, the High Court has recently again emphasised the importance of due weight being given to the exercise of the discretion by the sentencing judge. It has acknowledged, as this Court must, that there is no single correct sentence and judges at first instance must be allowed "as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Makarian v The Queen (2005) 215 ALR 213 at [27]."
35 The sentencing of adults for offences involving the sexual exploitation of children is a difficult exercise. Because of the limited information available as to the sentencing for sexual acts committed outside Australia, sentencing in the present case was an even more difficult task.
36 The Court was provided by counsel with an understanding of the situation with respect to State legislation relating to sexual offences involving children. The maximum penalties that can be imposed for sexual offences varies. In New South Wales the Crimes Act 1900 imposes a maximum penalty of twenty-five years for sexual intercourse with a child under ten years of age. For the offence of sexual intercourse with a child between ten to fourteen years a maximum sentence of sixteen years imprisonment is provided, although if there is aggravation, a maximum term of twenty years is provided (s 66C(1) and (2) of the Crimes Act 1900). Section 66C(3) and (4) provide that sexual intercourse with a child between the ages of fourteen to sixteen years carries a maximum prison term of ten years but in circumstances of aggravation, twelve years.
37 The penalty ranges in South Australia under the Criminal Law Consolidation Act 1935 are generally lower. Indecent assault involving a child under twelve years of age carries a maximum term of ten years imprisonment (s 56) and indecent assault in any other circumstances a maximum prison term of eight years.
38 The sentence regime in Victoria is similar to New South Wales. Maximum prison terms in Queensland a generally lower. In Western Australia the Criminal Code 1913 provides a maximum penalty of fourteen years imprisonment for the act of sexual penetration of a child between thirteen and sixteen years of age although a more lengthy term is provided if the child is under the care, supervision or authority of the offender (s 321).
39 The decisions of appellate courts make plain that there are a number of common elements when sentencing offenders for child related sexual offences. General deterrence is of paramount importance (R v Levi (1997) unreported, NSWCCA, 15 May 1997, R v D (1997) 69 SASR 413; R v AJW (2001) 80 SASR 246; Bell v R [2001] WASCA 40). Any abuse of a position of trust is considered to be an aggravating feature. Other relevant factors in sentencing for this type of offence include the type of conduct committed, the number of victims (see R v LLK (2003) 146 A Crim R 1), the number of occasions on which the offending occurred, the period of time over which the offending occurred and whether the offending was part of a course of conduct (see R v H [2001] NSWCCA 117).
40 In R v Percival [2001] NSWCCA 429 the offender was convicted of two counts of sexual intercourse with a child. For this offence the maximum penalty was eight years imprisonment. Each count related to a separate victim who was between the ages of twelve to fourteen years. There was a Form 1 which included two aggravated indecent assaults relating to another victim who was approximately one year younger. The victims all worked for the offender and, accordingly, he was in a position of trust. They were paid for gratifying his sexual impulses by committing acts of fellatio. The offender pleaded guilty. The sentencing judge imposed a sentence of six years imprisonment with a non-parole period of four years. An appeal against the sentence was dismissed.
41 In R v Pearson [2005] NSWCCA 116 the offender pleaded guilty to three counts of aggravated indecent assault, one count of using a child under the age of fourteen for pornographic purposes, one count of being a principal in the second degree to another person doing something to hinder an investigation. The maximum penalty for each of these offences was seven years imprisonment.
42 The offender was sentenced to three years imprisonment with a non-parole period of two years. The offending involved only one victim and the maximum penalties which the offender was liable are less than the equivalent penalties for similar Commonwealth offences. In this case there was no allegation of sexual intercourse.
43 In Kaye v R [2004] WASCA 227 the Western Australian Court of Criminal Appeal considered the position of an offender who was convicted of one count of offering to assist a person to engage in committing an act of indecency on a person under the age of sixteen years outside Australia contrary to s 50DB(1) of the Crimes Act 1914 (Cth). The conviction followed a trial which lasted some five days.
44 The maximum penalty for the offence was imprisonment for seventeen years. The trial judge sentenced the offender to imprisonment for six years with a non-parole period of three years.
45 The offender was aged seventy-one years at the date of sentence and had no prior record. There was evidence of his significant contribution to the community. Evidence was given at the trial of arrangements which the offender made with a person contemplating travel to Thailand where offending sexual activity could be provided. The trip never took place for the offender's telephone had been tapped and he was arrested before the arrangements could be put into effect.
46 On appeal Malcolm CJ said that the offence fell at the lower end of the spectrum of seriousness contemplated by the legislation but considered that a sentence of six years with a non-parole period of three years fell well within the discretion of the sentencing judge. His Honour remarked that Kaye was only the second case in which an offender has been sentenced under the relevant Commonwealth legislation.
47 McLure J agreed with Malcolm CJ and said of the sentence that (at 66):
"General deterrence is a weighty factor when dealing with offences relating to sexual conduct with children: Bell v The Queen [2001] WASCA 40. Thus, the penalty should reflect the need for general deterrence, reinforced by the practical difficulties of detection because the acts of child molestation occur overseas."
48 In the present case the sentences of five years which his Honour imposed in relation to the offences contrary to s 50BA and s 50BB were, in my opinion, at the lowest end of the available range. The criminality in each of the offences was of a high order. The applicant set about a holiday in Thailand with the express purpose of having sexual intercourse with a number of young boys and otherwise sexually exploiting them for his own gratification. He intended and did take a video recording of the activities for his later personal use. In reality the applicant participated in the exploitation of boys under the age of 16 years who were being offered as male prostitutes. Because of the need for the respondent to receive counselling and effective rehabilitation a period on parole was essential. Although at the lowest end of the available range, in my opinion, neither the head sentence nor the parole period for each offence could be considered to be outside of the range requiring intervention by this Court.
49 Although the level of sentence imposed for each offence does not indicate error, in my opinion, this cannot be said of his Honour's conclusion that all of the sentences should be served concurrently without any accumulation. Although the offences occurred during a short holiday in Thailand and were committed as part of that single enterprise they involved a number of individual sexual acts and a number of different victims. In those circumstances concurrency of all the sentences was not appropriate. Persons who set about committing crimes of a sexual nature upon a number of different victims, even if the offence occurs in a short space of time can expect a penalty which imposes a prison term which will be served separately for at least some of the offences (see R v Bilal Skaf [2005] NSWCCA 297 at [128]-[129]; and also see the discussion about multiple victims in R v Dunn [2004] NSWCCA 41 at [50], R v AB & Clifford [2005] NSWCCA 360 at [90]-[84], R v Weldon (2002) 136 A Crim R 55 at 62 per Ipp J). To my mind, the discretion of the sentencing judge miscarried when he failed to provide any accumulation.
50 In the circumstances and having regard to the fact that this is a Crown appeal, although I would not interfere with the term of the individual sentences, in my opinion, the sentence for the offence against s 50BA and that of s 50BB should be accumulated by a period of two years. The non-parole period should similarly be varied.
51 The orders which I propose are:
1. Appeal upheld.
2. The sentences imposed are quashed and in lieu thereof the respondent is sentenced as follows:
(i) On each of the four counts contrary to s 50BA(1) sentenced to five years imprisonment to expire on 7 June 2010 with a non-parole period of three years expiring on 7 June 2008.
(ii) On the count contrary to s 50BD(1) sentenced to three years imprisonment to expire on 7 June 2008.
(iii) On the count contrary to s 50BB(1) sentenced to five years imprisonment commencing on 8 June 2007 and expiring on 7 June 2012 with a non-parole period of three years expiring on 7 June 2010.
52 ADAMS J: I agree with McClellan CJ at CL.
53 HOEBEN J: I agree with McClellan CJ at CL.
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