Criminal Law - Crown appeal against inadequacy of sentence - applicable sentencing principles - victim impact statement - use of and role of prosecuting authorities in respect of - "suspended sentences" - relevant principles to be applied.

Solicitors for the Appellant : The Director of Public Prosecutions

Solicitors for the Respondent : Ken Johnston Bedford and Co.

2. The direction that the respondent be released forthwith and the bond pursuant to which he was released forthwith be set aside and that in lieu thereof it be directed that the respondent be released upon the expiration of nine calendar months from the date upon which he is taken into custody conditional upon him then entering into a recognizance, self in the sum of $2,000 with one surety of $2,000, to be of good behaviour for a period of two years and during such period submitting himself to the supervision of the Director of Adult Corrective Services, undertaking to obey his directions as to matters of residence, employment and associates.

3. Subject as aforesaid, the concurrent sentences of three years imprisonment be confirmed but to date from the date upon which the respondent is taken into custody.

Note: Settlement and entry of orders is dealt with in order 36 of the Federal Court Rules.

BURCHETT, MILES AND O'LOUGHLIN JJ. Crown appeal against inadequacy of sentence.

The respondent appeared in the Canberra Magistrates' Court on 24 January, 1992 and pleaded not guilty to seven charges, each alleging the commission of an act of indecency upon a female child above the age of 10 years but under the age of 16 years: contrary to the provisions of sub-s.92K(2) of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory (the "Crimes Act"). The complainant was the respondent's 14 year old step-daughter. In addition, he faced two further charges of common assault, the victims of which were said to be his wife and his natural daughter.

2. Subsequently, the respondent pleaded guilty to all charges and, on 24 June 1992, he was duly committed for sentence. On 4 September 1992, he was sentenced in the Supreme Court of the Australian Capital Territory to three years imprisonment on each of the seven counts of indecency. The imposition of these terms of imprisonment, which were to be served concurrently, was then suspended upon the respondent entering into a recognisance, self in the sum of $2,000 with one surety in the same amount. Conditions of his bond required him to be of good behaviour for a period of two years and to submit himself to the supervision of the Director of Adult Corrective Services. No penalty was imposed on the two counts of common assault.

3. This appeal relates only to the suspension of the terms of three years imprisonment.

4. The Crown has complained that the suspension has resulted in a total sentence which was manifestly inadequate. It has argued also that the learned sentencing Judge failed to have due regard to the seriousness of the offences and the facts and circumstances surrounding the commission of the offences; it also argued that he failed to incorporate adequate deterrent and retributive factors in the sentence imposed. It has further claimed that his Honour erred in his assessment of the impact of the offences upon the victim and in finding that there was "some prospect of restoration of the marriage and the family as a unit".

5. The respondent, who is now aged 30, married his wife in 1985. At that time they were the parents of a child, a girl about twelve months old; his wife also had two other children, both girls, the elder of whom was the victim of the acts of indecency; the other step-daughter was three years younger.

6. The seven acts of indecency occurred over a period of about eight months from April to November 1991. The acts included touching the complainant's breasts, touching her clitoris and vagina and masturbation and ejaculation in her hands. There was also an occasion of indecency when the respondent showed the complainant some sexually explicit magazines and thereafter simulated intercourse with her whilst both were clothed and lying on a bed.

7. On 23 November 1991 an incident occurred in the home; the respondent lost his temper, struck his natural daughter, who was then aged 7, and struck his wife when she intervened to protect the child. The police were called and two days later the victim volunteered her complaints of the acts of indecency. Until then she had said nothing about the respondent's conduct for fear of reprisals.

8. The Crown did not argue that the head sentence of three years was inadequate, as being below the bounds of the learned sentencing Judge's discretion. The Crown's argument concentrated on the release forthwith of the respondent, claiming that the nature of his conduct was such that there should have been imposed a custodial term of imprisonment to take effect immediately; it was the failure to require the respondent to serve such a term of imprisonment which constituted, so it was argued, the manifest inadequacy of the sentence.

9. Apart from some traffic offences which the learned sentencing judge was prepared to ignore, the respondent was accepted as a person "with a completely clear record and of good character". He was a self-employed driver and the evidence pointed to him being a hard working, conscientious man and a good provider for his family. His Honour accepted that he was "very knowledgable and experienced in the trucking business". In fact, his Honour was satisfied that it was the respondent's need to work very long hours that contributed to some tension within the family; the respondent had, apparently, become resentful that, although he was earning good money, he had little time to spend with his family.

10. We turn first to the complaint that the learned sentencing Judge gave insufficient consideration to the impact of the offences upon the victim.

11. The sentencing judge concluded that the effect of the offences on the child was likely to be transitory and not such as to give rise to emotional difficulties in the future. His Honour correctly recognized that evidence of the impact on the victim was relevant, but he considered that the material before him on this aspect lacked cogency and spontaneity. That material consisted of several documents, namely an undated letter from the child addressed to counsel for the prosecution, a report dated 26 August 1992 from a social worker, ACT Department of Health, addressed to the Women's Health Service and the Director of Public Prosecutions, and a letter dated 19 August 1992 from an apparent acquaintance of the child called Cecelia Friend addressed to whom it might concern. The conclusion to be drawn from all that material, if accepted, was that the child suffered loss in a psychological, social and physical sense, involving deterioration of her school work and sporting activities, isolation from former friends, nightmares, and emotional problems, including anger, anxiety, and loss of self-esteem, which was likely to extend for an indeterminate time into the future.

12. As none of the authors of this material was called to give evidence (or, for that matter, required for cross-examination), his Honour did not enjoy any advantage over this Court in assessing it at its face value. On the other hand, his Honour was entitled to weigh it up in the light of the evidence given by the respondent, which evidence clearly made a very favourable impression upon him, and in the light of expert evidence, whether called by the Crown or by the defence. The respondent and a Community Corrections officer were each of the view that the respondent's wife was under pressure from her mother not to resume her relationship with the respondent, and that the wife's mother stood in the way of reuniting the family. His Honour appears to have accepted that evidence.

13. Evidence was also given by Dr W. Knox, a consultant psychiatrist, who was called on behalf of the respondent. In answer to questions from his Honour, Dr Knox expressed an opinion to the effect that the most likely outcome for the child was that although she would be "a bit vulnerable and a bit insecure", she was not ruined for life and "could have a healthy adult sexual adjustment despite this". In relation to the material tendered by the prosecution relating to the impact on the child referred to above, his Honour said as follows:

"The Crown Prosecutor frankly admitted, when I questioned about

it, that she had requested the impact statement from the girl for

the purposes of putting some sort of statement together for the

use in this Court. In my opinion, the procurement of that sort of

evidence by the prosecuting authority goes beyond that authority's

role and gives the appearance, even if it not be the fact, of an

endeavour to exacerbate the consequences of the offences to the

detriment of the accused.

Evidence of the impact of offences is, of course, relevant. Its

cogency, however, may depend on how it was obtained. I would

personally discourage the prosecuting authority from doing this

sort of thing, especially when the accused has pleaded guilty in

the Magistrates Court and has been committed for sentence, and the

evidence is obtained between committal for sentence and appearance

for sentence in this Court. The same can be said of the letter

from the girl's girlfriend, dated 19 August 1992. That is also

after committal for sentence.

The cogency of that sort of evidence would, of course, be greatly

increased if it came from a treating psychiatrist or other

psychological expert, or from a counsellor consulted by the child

or some other responsible person. I express my concern about that

sort of evidence being elicited by the Crown Prosecutor, and I say

now that the result of the Crown eliciting evidence in that way

makes it difficult for this Court to assess the reliability of the

documentary evidence as expressions of the child's emotional

trauma. They simply lack cogency and they certainly lack

spontaneity."

14. Counsel for the appellant has submitted that his Honour's criticism of the course taken to gather and tender the material in question was unjustified and deprived his Honour of the opportunity to make a proper assessment of that material.

15. There is no question that increasing public concern about the position of victims of crime in the criminal justice system has been accompanied by repeated instances of judicial recognition that loss or damage suffered by a victim is a factor to be taken into account in the sentencing process: see R v Webb [1971] VicRp 16; (1971) VR 147, R v Dole [1975] VicRp 75; (1975) VR 754, Salt v Galkowski (1978) 19 SASR 130.

16. However, because in our adversarial system of criminal justice the victim is not directly represented and has no more right to be heard in the sentencing process than in the trial, a difficulty arises as to how information relating to the effect on the victim is to be gathered and presented to the court. That reliable information of that nature should be presented is in the public interest, not only in the interest of the injured victim (or of the accused, if the victim has escaped relatively unharmed), since a proper sentence should not be based on a misconception or ignorance of salient facts. There is not necessarily any unfairness or impropriety in the representative of the Crown assisting in this regard. The prosecutor appears in the public interest and has the role of assisting the Court in reaching a fair decision rather than exclusively advocating a particular interest: see Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563.

17. On the other hand there are objections to the prosecution taking too active a role in the matter of injury to the victim. They are implicit in his Honour's criticism in the present case. One is that where the prosecutorial function is carried out by a Director of Public Prosecutions, the powers of the authority are limited to those conferred by statute and are perhaps not co-extensive with the broad function traditionally accepted as that of the Crown in assisting the Court in the administration of justice. The other objection is that the gathering and presentation of evidence of the effect of the crime on the victim tends to undermine the actual and perceived independence of counsel for the prosecution by identifying counsel with the victim. These matters are discussed in a paper by the Hon. C.J. Sumner, "Victim Participation in the Criminal Justice System" (1987) 20 ANZJ Crim 195.

18. In order to overcome these difficulties, there have been proposals for and discussion of the use of victim impact statements at the sentencing stage. In this country, as we understand it, it is only in South Australia that there has been legislation requiring such statements. In 1986 s.301 was inserted in the Criminal Law Consolidation Act 1935 by statute No. 16 of 1986. It provided that where the court requested a pre-sentence report on the offender "the report must also contain particulars of any injury loss or damage suffered by any person as a result of the offence being particulars not already known to the court and reasonably ascertainable by the person preparing the report". In addition, non-statutory guidelines issued to government departments were directed to ensuring that the victim "have the full effect of the crime upon him/her made known to the sentencing court either by the prosecution or by information contained in a pre-sentence report."

19. Section 301 was subsequently repealed by statute No. 51 of 1988. In its place s.7 of the Criminal Law (Sentencing) Act 1988 was enacted. It provides that "the prosecutor must for the purpose of assisting a court to determine sentence for an offence furnish the court with particulars (that are reasonably ascertainable and not already before the court in evidence or a pre-sentence report) of -

"(a) injury, loss or damage resulting from the offence;

....."

20. Whilst there is now no legislative requirement in South Australia for particulars of the victim's injuries to be included in a post-sentence report, the responsibility of furnishing the court with particulars rests with the prosecutor.

21. In New South Wales, on the other hand, the Task Force on Services for Victims of Crime recommended in February 1987 against the use of victim impact statements until there had been an assessment of their use and worth in other jurisdictions.

22. Similarly, the Victorian Sentencing Council Committee in April 1987 recommended against the introduction of victim impact statements on the ground that "the existing approach of the criminal law making an objective assessment of the impact of a crime upon a victim strikes an appropriate balance between the general interests of the community and the specific interests of the victim".

23. In Queensland there is a reported proposal to implement the principles contained in the Charter of Victims' Rights, approved by the United Nations General Assembly in December 1985, which require the implementation of measures allowing for the position of victims to be presented and considered at appropriate stages of criminal proceedings "without prejudice to the accused and consistent with the relevant national criminal justice system": see Alternative Law Journal Vol. 17, No. 3 (1992) 131.

24. The Australian Law Reform Commission proposed in a discussion paper in August 1987 that "the victim's interests should be represented by the prosecution and that a victim impact statement might be tendered by the prosecution" where the extent of injury or loss was not already ascertainable by evidence in the case. The proposal was omitted from the Commission's final Report No. 44 on Sentencing (February 1988).

25. The ACT Attorney-General has referred to the ACT Community Law Reform Committee, for review and report, the matter of the role of the victim of crime in the Territory's criminal justice system and in particular the question whether the Territory should adopt the use of victim impact statements such as in South Australia. As we understand it, the Committee has not yet made its report, although in March 1991 the Committee published a discussion paper in which it summarised the position in other jurisdictions and outlined the arguments for and against the use of victim impact statements.

26. In the absence of statutory provisions for victim impact statements in the Australian Capital Territory, we do not see any impropriety in the Director of Public Prosecutions, or the representatives of the Director, whether acting as counsel or as solicitor, ensuring that the court has before it sufficient material of a proper kind to enable it to proceed to sentence upon a realistic assessment of the injury to or loss suffered by a victim. It is essential, however, that the material be presented in such a way that the prosecuting authority will not only not be seen to be promoting the interests of the victim at the expense of the interests of justice, but also the reality will be quite otherwise. Vengeance is not to be equated with justice. And the understandable feelings of a victim or a relative of a victim must not be allowed to move the Court beyond the way of justice. For that reason it may be appropriate for the material to be presented other than in the form of direct statements by the victim or persons closely connected with the victim. It would be better that the material be presented through the report of an independent third party, with the caution that the third party must not assume nor be seen as assuming the role of an advocate either for or against the victim. In that respect the South Australian procedure whereby a victim impact statement is prepared by the same person who prepares a pre-sentence report might be an appropriate model. However, it is not for this Court, nor perhaps for the Supreme Court, to impose any procedural requirement of that kind for the reason that, apart from policy considerations, there are resource implications.

27. Our conclusion on this aspect of the case is that, whilst we would not necessarily agree with all of the criticisms of the sentencing judge of the propriety of the conduct of counsel for the prosecution in the present case, the method of collection and presentation of the material relating to the effect of the offences on the child did leave it open to his Honour to reject that evidence for what he saw as its lack of cogency.

28. The learned sentencing judge, in the present case, was very conscious of the seriousness of the respondent's behaviour. Noting that the maximum penalty for offences of this nature was 10 years imprisonment, he went on to say:-

"It is trite to say that sexual interference by a father or

step-father or other family member with a child of the

family is regarded by the community as being particularly

reprehensible behaviour, if not disgusting."

29. However, his Honour found that, unlike many such cases where sexual offences result in the disintegration of the family, there was, as he classified it, "still a chance for survival" for the respondent's family. It was this finding that was strongly challenged by counsel for the Crown. He pointed out that the evidence before the learned sentencing judge indicated that the respondent was presently living separate and apart from his wife and the children and that the children were in the care of their maternal grandmother; although there was some suggestion that the wife might be prepared to consider reconciliation, that was tenuous to say the least.

30. In our opinion, the evidence before the learned sentencing judge was not sufficiently cogent to justify his optimism that there was "still a chance for survival" for the family. According to the pre-sentence report, the wife had "serious reservations" about a reconciliation and the respondent, in evidence, conceded that it was only "a 50/50 chance". Finally, there was no evidence to suggest that the victim would be amenable to a return to the family unit. In fact, his Honour even recognised that any restoration of the family unit might not include the victim. He said:-

"I conclude that there is some prospect of restoration of

the marriage and the family as a unit. It may not include

the victim of these offences, which would be unfortunate,

but the situation on the evidence before me is not hopeless.

This is a strong factor, in my opinion, in the exercise of

the sentencing discretion."

31. We are of the opinion that little, if any, weight can be given to this factor in favour of a person such as the respondent whose conduct has caused the disintegration of the family unit when the restoration of the unit, including the victim, is not reasonably foreseeable; nor could the information that was before the learned sentencing Judge have led, with confidence, to a conclusion that the victim of these offences would or might benefit from the immediate release of the respondent. It is the element of injustice involved in the law itself exacerbating a victim's suffering by depriving her of a viable home which justifies reduction or suspension of a sentence in some cases where the family is still able to be re-established. But if the victim is excluded, the case is no different from other crimes which deprive families of a husband and father.

32. The re-establishment of the family unit is an important factor and can properly be taken into consideration in appropriate circumstances. Jacobs J., as a member of the South Australia Court of Criminal Appeal, said in The Queen v C (unreported: judgment delivered 31 March 1988):-

"I entirely agree with what Bollen J. has said about the

importance of re-establishment of the family unit in a case

such as this, for the benefit of the child as much as for

the rehabilitation of the offender." (emphasis added)

33. However, and without seeking to diminish its importance, the question of the restoration of the family unit remains merely one factor to be weighed in the balance in the sentencing process. In a differently constituted Court of Criminal Appeal in The Queen v Nathan (unreported: judgment delivered 12 August 1988) White J. expressed reservations about some passages in the judgments in R v C. He said:-

"A bench of 5 judges may one day have to consider the matter

if C's case is to be cited as authority for the proposition

that holding the family together - except in the unique

circumstances of C's case - is a factor which outweighs the

need to require sexual offenders within the family unit to

serve substantial custodial sentences in appropriate cases."

34. With respect, we do not consider that R v C went as far as White J. suggested; but if it did, we would not agree with it. C's case was unique; there had been a delay of three years between the known happening of the events and the laying of the charges. In that period the relevant Government Department had been aware of the father's conduct. Jacobs J. was of the view that there had been a serious element of unfairness in prosecuting the appellant some three years later; he had apparently attempted, with some success, to reshape his life and that of his family in reliance upon the expectation that he would not have to go to jail. Those very special factors were not present in Nathan's case nor are they present in this case.

35. The powers of this court, upon an appeal by the Crown against the inadequacy of a sentence, are settled and are best stated by reproducing the well known passage from the judgment of the Full Court in R v Tait and Bartley (1979) 24 ALR 473 at 476:

"An appellate court does not interfere with the sentence

imposed merely because it is of the view that that sentence

is insufficient or excessive. It interferes only if it be

shown that the sentencing judge was in error in acting on a

wrong principle or in misunderstanding or in wrongly

assessing some salient feature of the evidence. The error

may appear in what the sentencing judge said in the

proceedings, or the sentence itself may be so excessive or

inadequate as to manifest such error (see generally, Skinner

v R [1913] HCA 32; (1913) 16 CLR 336 at 339-40; R v Withers (1925) 25 SR

(NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249;

Griffiths v R [1977] HCA 44; (1977) 15 ALR 1 at 15-17).

Although an error affecting the sentence must appear before

the appellate court will intervene in an appeal either by

the Crown or by a defendant, a Crown appeal raises

considerations which are not present in an appeal by a

defendant seeking a reduction in his sentence. Crown

appeals have been described as cutting across 'time-honoured

concepts of criminal administration' (per Barwick C.J., Peel v

R [1971] HCA 59; (1971) 125 CLR 447 at 452; (1972) ALR 231 at 233). A

Crown appeal puts in jeopardy 'the vested interest that a

man has to the freedom which is his, subject to the sentence

of the primary tribunal' (per Isaacs J., Whittaker v R, supra

at 248). The freedom beyond the sentence imposed is, for

the second time, in jeopardy on a Crown appeal against

sentence. It was first in jeopardy before the sentencing court."

36. A few years after the decision in Tait and Bartley King C.J., in R v Osenkowski (1982) 30 SASR 212 at 212-213, made the following comments which Gallop J., as a member of a Full Court in R v Boudelah [1991] FCA 124; (1991) 28 FCR 176 at 186, described as "powerful observations":

"It is important that prosecution appeals should not be

allowed to circumscribe unduly the sentencing discretion of

judges. There must always be a place for the exercise of

mercy where a judge's sympathies are reasonably excited by

the circumstances of the case. There must always be a place

for the leniency which had traditionally been extended even

to offenders with bad records when the judge forms the view,

almost intuitively in the case of experienced judges, that

leniency at that particular stage of the offender's life

might lead to reform. The proper role for prosecution

appeals, in my view, is to enable the courts to establish

and maintain adequate standards of punishment for crime, to

enable idiosyncratic views of individual judges as to

particular crimes or types of crime to be corrected, and

occasionally to correct a sentence which is so

disproportionate to the seriousness of the crime as to shock

the public conscience."

37. In our opinion the restoration of the marriage and the family unit is a matter of importance that can properly be taken into consideration in the sentencing process in appropriate circumstances. However, it is not a factor that outweighs all other factors and its importance will vary from case to case. Conscious of the strictures contained in the authorities, we are of the opinion that the information that was before the learned sentencing judge was not sufficient to justify him giving any weight to a prospect of the restoration of this family unit in the foreseeable future. In our opinion his Honour erred in attaching too much weight to such a possibility.

38. There being perceived error, this Court is thereby permitted to interfere in the sentencing process if, keeping firmly in mind the strictures stated in Tait and Bartley and in Osenkowski, it should be considered appropriate in the particular case to do so. The task of the Court is therefore to consider the nature and effect of a "suspended sentence" for the purpose of determining whether, in the circumstances of this case (it being a Crown appeal), it can be accepted as falling within the sentencing discretion.

39. The power in the Supreme Court to impose a so-called "suspended sentence" is conferred by para.556B(1)(b) of the Crimes Act. It provides that the Court by which a person is convicted may, by order

"(b) sentence the person to a term of imprisonment but direct

that the person be released, upon her or his giving a like

security to that referred to in the last preceding

paragraph, either forthwith or after she or he has served a

specified part of the sentence imposed upon her or him."

40. Hence, if the Court orders pursuant to para.556B(1)(b) that a person sentenced be released forthwith upon giving the necessary security, the sentence may be regarded as wholly suspended. If the Court orders such release to take place after the person has served a specified part of the sentence, then the sentence may be regarded as partly suspended.

41. Section 556B was introduced into the Crimes Act by Ordinance No.2 of 1971. Prior to its introduction the relevant provisions of the Crimes Act were in the same terms as they were in 1911 when the Crimes Act 1900 of New South Wales became part of the law of the Australian Capital Territory pursuant to s.6 of the Seat of Government Acceptance Act 1909. A power to suspend the execution of a sentence in a case of conviction of a first offender for a minor offence, as defined, was the subject of Part XV, ss.557 to 562, of the Crimes Act as it then stood. Part XV was, for the Australian Capital Territory, in effect, repealed by Ordinance No.2 of 1971.

42. In New South Wales Part XV continued in force until it was removed by Act No. 50 of 1974. That Act abolished the power to suspend a sentence of imprisonment and replaced it with a power to defer passing sentence, in terms similar to those of para.556B(1)(a) of the ACT Crimes Act. The result is that under the ACT legislation there is both a power to defer passing sentence and a power to suspend a sentence of imprisonment either wholly or partly, whereas a New South Wales court, when sentencing for an offence under New South Wales law, has the power to defer passing sentence, but not the power to suspend the sentence. It may be noted that New South Wales courts, when exercising federal jurisdiction, have on occasions made orders suspending a term of imprisonment pursuant to the Commonwealth legislation in preference to deferring passing sentence: see Chaloner (1990) 49 A Crim R 370.

43. In 1960 the Crimes Act 1914 (Commonwealth) was amended to provide in s.19B for sentencing powers similar to those provided for in s.556B of the Crimes Act 1900, including the power to order release, forthwith or after a specified part of the sentence has been served, upon the offender entering into a recognizance. These provisions were amended by Act No. 4 of 1990 and the insertion of Part 1B which lays down detailed sentencing requirements for Commonwealth offenders. The general power to suspend a sentence in effect continues under para.20(1)(b) which bears the heading "Conditional release of offenders after conviction". Under s.16 such an order for conditional release is known as a "recognizance release order".

44. There is little by way of judicial authority on the precise question of when a suspended sentence of imprisonment is appropriate. D.A. Thomas on Principles of Sentencing (London, 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 (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 C.J. referred in Osenkowski, or for some other sufficient reason should have this particular avenue opened to him, provided the conditions of the suspension are observed.

45. These principles find support in the views of Mitchell A.C.J. in R v Palliaer (1984) 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."

46. It is also timely to remember the remarks of Bray C.J. 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."

"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 para 556B(1)(b) of the Crimes Act.

47. 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.

48. In our opinion the appeal should be allowed for the purpose of setting aside the order suspending the execution of the sentence and the bond into which the respondent entered. In lieu, the head sentence of three years should be confirmed, to date from the date upon which the respondent is taken into custody, with a direction that the respondent be released from custody upon him giving like security to that stipulated by the learned sentencing Judge after he has served a period of nine calendar months. This period of nine calendar months is less than might otherwise have been imposed, but it follows the principle that on successful Crown appeals against sentence, the sentence imposed will often be less than a Judge of the Appellate Court would have imposed if the matter had originally come before him.

49. As Kirby P. pointed out in Hayes (1987) 29 A Crim R 452 at 471:-

"This approach has been justified as compensation in some

way for the disappointment inherent in a respondent's having

his or her sentence challenged by the Crown and increased."