Regina v Cunningham

R v AGR (unreported) NSWCCA 24 July 1998 R v BJW [2000] NSWCCA 60; 112 A Crim R 1 R v Daetz [2003] NSWCCA 266; 139 A Crim R 398 R v Dent (unreported) NSWCCA, 14 March 1991 CASES CITED: R v McQueeney [2005] NSWCCA 168 R v Simpson (2001) 53 NSWLR 704 R v Soloman [2005] NSWCCA 158 R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 199 Veen v The Queen (No 1) 1979 143 CLR 458 Veen v The Queen (No 2) 1987 164 CLR 465

PARTIES: Barrie Patrick Cunningham (Applicant) Regina (Respondent)

COUNSEL: C Smith (Applicant) P Ingram (Respondent - Crown)

SOLICITORS: Steve O'Connor (Applicant) S Kavanagh (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2006/20 CCAP

GROVE J SIMPSON J BELL J

Monday 5 June 2006 Regina v Barry Patrick Joseph Cunningham Judgment 1 GROVE J: I have had the advantage of reading in draft the judgment of Bell J. 2 As her Honour has observed, and her recounting of the short facts of the appellant's offences confirms, he is a paedophile in respect of whom, despite his advancing years, medical opinion is that he poses a significant risk of committing further offences. An important element of his sentence must be the protection of the public, specifically female children. Nevertheless, whilst no abstract line of division can be postulated between an assessment reflecting such protection and an implementation of what amounts to preventative detention, it is received doctrine binding on this Court that a sentence may not include reflection of the latter: Veen v The Queen (No 1) 1979 143 CLR 458; Veen v The Queen (No 2) 1987 164 CLR 465. 3 I share her Honour's conclusion that the sentencing judge's notional starting point for the offence of attempted sexual intercourse with the victim WV of sixteen years three months exceeded the bounds of discretion. A reason for my view is that, accepting his finding that this offence lay at the mid range of seriousness for such, I consider the assessed starting point manifests an implication that there has been some likely intrusion into the process of what the principle laid down in the authorities mentioned forbids. 4 That is not to say that the balance of objective and subjective circumstances does not in this case warrant a lengthy sentence being imposed including a particular reflection of the need for future protection of children. 5 The substantial effective term reassessed by Bell J achieves the necessary balance and I agree with the orders that she has proposed. 6 SIMPSON J: I agree with Bell J. 7 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court at Parramatta following his pleas of guilty to 18 counts in an indictment charging him with sexual offences against children. 8 The offences were committed against four girls, each aged less than ten years. They took place over a period of 15 months, between January 2002 and April 2003. The applicant was in a position of trust with respect to each of the complainants: one was the child of his de facto partner and the other three were children who had come to his home to be tutored in maths or English. 9 The applicant was aged 58 years at the date of the offences. He is a paedophile who is attracted to pre-pubescent female children. He has previous convictions for sexual offences involving children. At the date of each of these offences he was on a bond to be of good behaviour, which was imposed on him in the District Court on 5 June 1998. On that date he was sentenced by Karpin DCJ for three indecent assaults on children. He was sentenced to a term of three years and six months' imprisonment with a minimum term of 18 months for one offence. A concurrent fixed term sentence of 18 months' imprisonment was imposed for the second offence. Her Honour deferred passing sentence for the third offence upon the applicant entering a recognizance to be of good behaviour for five years.

10 The offences to which the applicant pleaded guilty comprised 10 counts of aggravated indecent assault on a person aged under 10 years, contrary to s 61M(2) of the Crimes Act 1900 (the Act); four counts of committing an act of indecency upon a person aged under 10 years, contrary to s 61O(2); three counts of inciting a person under the age of 10 years to commit an act of indecency contrary to s 61O(2); and one count of attempted sexual intercourse with a person aged under 10 years, contrary to s 66B(2). 11 The sentencing exercise was a difficult one given the number of offences and the number of separate incidents involving different complainants. Added to this was the circumstance that certain of the offences attracted the application of the provisions of Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) because they were committed after 1 February 2003 and were offences under s 61M(2) to which a standard non-parole period applies. 12 The Judge imposed a sentence that in the aggregate is 15 ½ years' imprisonment, with an effective non-parole period of 9 ½ years. The sentence commenced on 17 April 2003, being the date on which the applicant came into custody. The earliest date on which he will be eligible for consideration of release on parole is 16 October 2012. The balance of the sentence at that date is six years.

13 The Judge sentenced the applicant on the basis of an agreed set of facts. The offences against the complainant, BT, were committed between 31 March 2002 and 21 December 2002 (counts 15, 16, 17 and 18). Each was an indecent assault under s 61M(2) of the Act. The maximum sentence for these offences is 10 years' imprisonment. None of these offences was committed before the introduction of Pt 4 Div 1A into the Sentencing Procedure Act and they do not have a standard non-parole period. 14 BT was aged nine years at the time of the assaults. The applicant was on friendly terms with her parents. He approached BT's mother and offered to tutor BT in maths and English. Each of the offences occurred when BT was at the applicant's unit for the purpose of being tutored.

15 The first of the indecent assaults occurred on an occasion when the applicant called BT into the lounge room, telling her to get a lolly. She got a lolly and went to sit on the couch next to him. He pulled her down by the hips so that she was seated on his lap and he touched her bottom on the outside of her clothing. He stopped after a short time and BT went home. The applicant was sentenced to a fixed term of three years' imprisonment for this offence (count 15). 16 The next offence was when the applicant put his hand inside BT's shirt, squeezing her breast for a short time. The applicant was sentenced to a fixed term of three years' imprisonment for this offence (count 16). 17 The third offence took place on an occasion when the applicant was lying on his bed reading a spelling list to BT. She fell on the bed as she tried to grab the list from him. He was lying on his back with BT on top of him. Both were clothed. He moved his body up and down and BT felt his groin against the area of her vagina. The applicant was sentenced to a fixed term of three years' imprisonment for this offence (count 17). 18 The fourth offence occurred on an occasion when the applicant was writing out sentences on a board for BT to correct. He asked her to give him a hug, which she did. As she did so the applicant touched her on the outside of her clothes in the area of her vagina. He moved his hands slowly against her and asked, "does that feel good?" The applicant was sentenced to a fixed term of three years' imprisonment for this offence (count 18). 19 Each of the sentences for the offences against BT commenced on 17 April 2003 and was concurrent with the other sentences for offences against her.

20 CN turned nine in October 2002. She lived at home with her younger sister, EN, who is also a complainant. CN's father is Vietnamese. He worked with the applicant and approached him, asking if he could tutor his daughters in English. The applicant agreed. On occasions both girls attended for tutoring together and sometimes they were tutored separately. 21 Each of the offences involving CN and EN occurred at the applicant's unit on occasions when each girl was there for tutoring. The first offence against CN took place when she was lying on the floor, watching television. The applicant lay beside her. He took off his pants and underpants and told CN to do the same. While lying behind CN the applicant placed his penis near her anus. They both lay in this position for a while. CN put her pants back on and completed some work. The applicant was sentenced to a fixed term of imprisonment for three years for this offence (count 12). 22 The next offence occurred on an occasion when CN and EN were both at the applicant's unit. The applicant asked CN to kiss him and she refused and ran and hid. He brushed his teeth and asked her again. He kissed her on the lips and CN felt his tongue in her mouth. The applicant was sentenced to a fixed term of three years' imprisonment for this offence (count 13). 23 The third offence against CN occurred on an occasion when she was on the couch, watching TV. The applicant was lying beside her. He put his hand inside her underpants and touched the outside of her genital area. After a short while she pushed his hand away and said that she did not want to do it anymore. The applicant stopped and CN got up and went to play with her sister. The applicant was sentenced to a fixed term of three years' imprisonment for this offence (count 14). 24 Each of the sentences for offences committed against CN was fixed to commence on 17 April 2004. They were accumulated by 12 months on the sentences imposed for the offences committed against BT. 25 The offences involving CN's sister, EN, occurred between 21 September 2002 and April 2003. EN was aged six years, save for the offence charged in count 11, when she was aged five or six years.

26 The first count charged the applicant with inciting EN to an act of indecency contrary to s 61O(2). The maximum sentence for this offence is seven years' imprisonment. EN was in the lounge room doing a handstand against the couch. Her dress fell down, exposing her underpants. The applicant had a handheld video camera. He encouraged EN to keep her legs straight and he filmed her. The recording focussed on her underpants for a short while. The applicant was sentenced to a term of two years' imprisonment for this offence (count 6). 27 The next count charged a further instance of inciting an act of indecency, on the same occasion as the offence in count 6. EN was sitting on a cane mat and the applicant asked her to pull the front of her pants down. She did as she was told and exposed her vagina while the applicant filmed her. The applicant was sentenced to a term of two years' imprisonment for this offence (count 7). 28 The next count charged the applicant with committing an act of indecency with EN between 14 and 17 February 2003. This offence is also an offence under s 61O(2) and carries a maximum sentence of seven years' imprisonment. The applicant pulled down EN's underpants and exposed her vagina for a short while as he filmed her. The applicant was sentenced to a fixed term of three years' imprisonment for this offence (count 8). 29 The next count charged the applicant with a further act of indecency with EN committed on the same occasion as an offence in count 8. EN was sitting on the floor with her legs apart and the applicant filmed her underpants and groin area. The applicant was sentenced to a fixed term of three years' imprisonment for this offence (count 9). 30 The applicant was charged with a further act of indecency with EN on the same occasion. He encouraged EN to do a back arch, which exposed her underpants. He pulled at the top of her underpants, briefly exposing her vagina, saying, "I'll get your little fanny as well" as he filmed her. The applicant was sentenced to a fixed term of three years' imprisonment for this offence (count 10). 31 The next count charged the applicant with inciting EN to an act of indecency. This offence occurred between 21 September 2002 and 17 April 2003. The applicant encouraged EN to pull the front of her tracksuit pants down so that he could film her vaginal area. The applicant was sentenced to a fixed term of two years' imprisonment for this offence (count 11). 32 The sentences for each of the offences against EN were fixed to commence on 17 October 2004 and were accumulated by six months on the fixed term sentences imposed for the offences against CN.

33 The final group of offences was committed against the complainant, WV, who is the daughter of the applicant's then de facto partner. WV was aged six years. These offences were committed between 2 April and 9 April 2003. The first offence was an act of indecency towards WV under s 61O(2). WV and her mother had commenced living with the applicant in his unit a matter of days before the commission of this offence. On the evening of 2 April the applicant was reading a story to WV in the bedroom. He exposed his penis to her. He was next to her on the bed at the time. The applicant was sentenced to a fixed term of two years' imprisonment for this offence (count 1). 34 The next count charged the applicant with an aggravated indecent assault, under s 61M(2). The offences against WV were committed after the commencement of Pt 4 Div 1A of the Sentencing Procedure Act. Offences under s 61M(2) are subject to a standard non-parole period of five years. Between 3 and 6 April the applicant was babysitting WV while her mother was working on the nightshift. The applicant put WV to bed on the couch in the lounge room and kissed her, putting his tongue inside her mouth. The applicant was sentenced to a term of four and a half years' imprisonment comprising a non-parole period of three years and a balance of term of one and a half years for this offence (count 2). 35 The next offence was a further aggravated indecent assault on WV committed between 3 and 6 April 2003. It took place on the same occasion as the offence charged in count 2. The applicant lay on top of WV on the couch. He was wearing boxer shorts. He pushed WV's head down to his penis and it rubbed against her cheek area for a short period of time. The applicant was sentenced to a term of four and a half years' imprisonment comprising a non-parole period of three years and a balance of term of one and a half years for this offence (count 3). 36 The next offence was a further aggravated indecent assault that took place between 6 and 9 April 2003. The applicant drove WV's mother to work for her night shift. WV accompanied them. On their return to the unit both sat on the couch in the lounge room. The applicant kissed WV, putting his tongue inside her mouth. The applicant was sentenced to a term of four and a half years' imprisonment comprising a non-parole period of three years and a balance of term of one and a half years for this offence (count 4). 37 The final offence was attempted sexual intercourse with WV. This offence is under s 66B and carries a maximum sentence of 25 years' imprisonment. The applicant and WV were alone in the master bedroom. He removed all his clothing except for his boxer shorts and he removed WV's pyjamas. They both got into the bed and the applicant lay on top of WV and attempted to place his penis in her vagina. After a while he put her clothes back on and they went to sleep. The applicant was sentenced to a term of 13 years' imprisonment comprising a non-parole period of seven years and a balance of term of six years for this offence (count 5). 38 The day after the act of attempted sexual intercourse WV disclosed some details of the abuse to her mother. 39 The sentences for each of the offences against WV, save the offence of attempted sexual intercourse, were fixed to commence on 17 April 2005 and were accumulated by 12 months on the sentences imposed for the offences against EN. The sentence for the offence of attempted sexual intercourse was fixed to commence on 17 October 2005 and was thus accumulated by six months on the other sentences for offences against WV.

40 The applicant was arrested and taken into custody on 17 April 2003. He pleaded guilty on arraignment in the District Court on 16 February 2004. The Crown accepted his plea to the count of attempted sexual intercourse with a person under the age of 10 years in full satisfaction of the indictment, which had charged him with the completed offence. It was common ground that the plea of guilty to the attempt was entered at the first opportunity. 41 The Judge discounted each of the sentences by 20 per cent to reflect the utilitarian value of the pleas of guilty. The subjective features

42 The applicant did not give evidence at the sentence hearing. Psychiatric reports by Dr Nielssen, dated 22 June 2004, and Professor Greenberg, dated 1 September 2004, were tendered on his behalf. Each contained an account of the applicant's background, including his educational and employment history. A report by Dr Jill Roberts of Justice Health commented on his medical condition. 43 The Judge found that the applicant had sought to downplay the extent of his criminality but accepted that at the date of sentence he exhibited some remorse and contrition. He found that the applicant had a desire to be rehabilitated, but that in light of his history of offending, the prospects of rehabilitation at this stage of his life were to be given little weight. 44 There was some material before the Judge concerning the applicant's likely conditions of custody. A memorandum prepared by an officer of the Office of the Director of Public Prosecutions recorded the results of enquiries made by her of the Deputy Classification Manager of the Department of Corrective Services. From this it appeared that the applicant was likely to be held in protective custody. The memorandum did not disclose the restrictions, if any, to which the applicant would be subject under conditions of protective custody. It was said that he would be able to participate in a treatment program for sex offenders. The Judge found that the applicant would serve most, if not all, of his sentence in some form of protection and took that circumstance into account. Since there was little information touching on the likely conditions of the custody to which the applicant would be subject in comparison to the general prison population, the approach that his Honour adopted was favourable to the applicant: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 199; [176]. 45 The applicant was a victim of a serious assault while in custody on remand. Professor Greenberg recorded that a CAT scan taken following the assault showed a defused subarachnoid haemorrhage and a subdural haemorrhage at the right frontal lobe area. The applicant sustained fractures to his face and a number of sacral injuries mainly involving the soft tissues around the spine. Some months later the applicant saw a psychologist and complained of psychological symptoms associated with having witnessed the murder of a fellow inmate. He was referred to a psychiatrist who diagnosed him as suffering from acute stress disorder or post-traumatic stress disorder. In August 2004, when he saw Professor Greenberg, the applicant reported continuing experiences of flashbacks (of the murder of his friend) and he complained of insomnia and hyper-vigilance. Professor Greenberg commented that the applicant appeared to have some impairment of memory that could be explained by his depressed mood, for which he was receiving antidepressant medication, or that it may indicate that he had sustained organic brain damage in the course of the assault. 46 The Judge found that in light of the applicant's history in custody following his arrest on these offences he was a person "at risk". It is apparent that this is a reference to the assault. His Honour noted that the applicant had suffered a fractured cheekbone and subarachnoid haemorrhage and found that it was probable that the applicant's memory difficulties were caused by the assault.

47 The Judge found that the applicant had suffered from a disrupted upbringing. He was raised in an orphanage where he had been subjected to sexual abuse. He had however received a good education. He wanted to be a jockey and had been apprenticed at the age of twelve. Despite starting work at an early age, he had continued his education attending evening classes. He had later been sponsored by the Victorian Racing Association to study veterinary science at Monash University. In the event, he did not complete the course. He had worked both as a jockey and as a riding instructor. He had been married and had two children. In recent years he had little contact with his children. 48 The Judge referred to Dr Nielssen's report which detailed the applicant's medical history, including that he had been placed on a disability support pension due to his emphysema and that he is an insulin dependent diabetic who requires two injections of insulin a day. His Honour noted that the applicant complained of difficulties in controlling his blood sugar level given the diet and the timing of meals in gaol.

49 The Judge noted Dr Nielssen's diagnosis that the applicant is a paedophile who is attracted to female children and that Dr Nielssen considered that he poses a significant risk of committing further offences. The Judge considered that the applicant's persistent association with children following his earlier conviction to be a matter of serious concern. His Honour found that while in the past the applicant had been reluctant to undergo treatment he was now willing to undertake such treatment as may be available to him in the prison system. 50 The Judge concluded that specific and general deterrence required to be accorded significant weight in the sentencing exercise. The grounds of appeal 51 The sentences are challenged on two grounds: 1. His Honour erred in finding that emotional harm caused by the offences was substantial.

2.The sentence is manifestly excessive. 52 In the course of his remarks on sentence, the Judge referred to the observations made by Lee CJ at CL in R v Dent (unreported) NSWCCA, 14 March 1991: Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset confusion and difficulties in later life, caused by such conduct.

The Judge went on to say this: The Crown submitted that this was a case where there was ample evidence of aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act . The Crown referred to the fact that the offender had a record of previous convictions and I have already referred to this in my reference to Veen v R (No. 2) . The Crown submitted that the Court should find that s 21A(2)(g), the injury, emotional harm, loss and damage caused by the offence was substantial and in support of the submission that that was a finding the Court should make, it was said that the offences against young offenders ought not to be taken to have caused at least emotional harm (sic) I agree and note my earlier reference to R v Dent . I find that this aggravating circumstance was established. 53 The Judge's remarks on sentence included discussion of the statutory regime under the Sentencing Procedure Act. His Honour expressly recorded that in considering the provisions of s 21A(2) he had not taken into account any aggravating factor that was an element of any of the offences and that he had not double counted (ROS 6.5). The Crown invited his Honour to find as a circumstance aggravating the commission of the offences that the injury, emotional harm, loss or damage caused by the offence in each case was substantial. No evidence had been led touching on the emotional or psychological harm to any of the complainants. The Court presumes that victims of sexual assault will be likely to suffer psychological injury and emotional harm as the result of the assault. As this Court explained in R v Soloman [2005] NSWCCA 158, because the Court makes such an assumption, without evidence, it would be unfair to take the psychological injury or emotional harm into account as an aggravating factor under s 21A(2)(g) in the absence of evidence that in the particular case it exceeded that which is presumed. 54 In the Crown's submission, it was open to the Judge to refer to the likely impact of these offences on the complainants, without evidence, and to take this consideration into account in assessing the seriousness of the offence: s 21A(1)(c) of the Sentencing Procedure Act. It remains that at the Crown's invitation the Judge made a finding of substantial harm as a circumstance of aggravation under s 21A(1)(g) in circumstances in which there was no evidence to support the finding. This constitutes error and enlivens this Court's jurisdiction to re-sentence the applicant in the event that the Court is of the opinion that a less severe sentence is warranted in law; s 6(3) of the Criminal Appeal Act 1912; R v Simpson (2001) 53 NSWLR 704.

55 The applicant's challenge was to the aggregate sentence (a discrete challenge was made to the sentence imposed for the offence charged in count 5). Counsel for the applicant did not submit that the Court would determine in light of the error disclosed in ground 1 that lesser sentences for each of the offences charged in counts 1 - 4 and 6 - 18 were warranted in law. It was the Crown's contention that the error disclosed in ground 1 should not lead to the Court intervening so as to impose any lesser sentence for any offence nor should the order of the sentences be varied so as to produce any lesser aggregate sentence. It is convenient to consider this submission in light of the challenge in ground 2. Ground 2 - manifest excess

56 Counsel for the applicant acknowledged that the offences involved breaches of trust and were committed against four complainants over a lengthy period (during which the applicant was on a bond to be of good behaviour) but submitted that the aggregate sentence of 15 ½ years with a non-parole period of 9 ½ years exceeded that which was open. 57 In written submissions the applicant's counsel contended that the Judge failed to give sufficient weight to his subjective case. The features that were relied upon were his medical condition which included emphysema and diabetes; that he had himself been subjected to sexual abuse as a child; that he was likely to be held in protective custody throughout his sentence; the extra-curial punishment suffered by him in custody when he was assaulted and his willingness to undergo treatment for his deviant behaviour. The Judge took into account each of the matters relied on in his careful remarks on sentence. 58 In counsel's submission, the aggregate sentence was excessive by reason of the orders for accumulation and because the sentence imposed for the attempted sexual intercourse with WV was itself manifestly excessive. 59 The maximum sentence for the offence of attempted sexual intercourse with a person under 10 years is 25 years imprisonment. It will be recalled that the sentence of 13 years imposed for this offence had been discounted by 20 per cent. The Judge's starting point can be seen to have been a sentence of 16 years and 3 months. The Judge assessed this offence to be in the mid-range of objective seriousness. 60 Counsel submitted that the sentence was one that might be expected for the completed offence. The Crown acknowledged that it was the highest sentence recorded in the statistical material maintained by the New South Wales Judicial Commission (the Commission). In the Crown's submission it was at the top of, but not outside, the range. In the alternative, the Crown submitted that if it were manifestly excessive, any intervention by this Court to reduce it ought be accompanied by adjustment to the commencement dates of the non-parole periods and terms of the other individual sentences such as to ensure that the aggregate sentence and non-parole period be not less than that which the Judge imposed (WS [28]). 61 The Commission's statistics were of limited assistance. The data comprises five cases of attempted sexual intercourse with a person under 10 years. Of these five instances, sentences of full-time imprisonment were imposed in three cases. The acknowledgement that the present case involved the highest sentence does not establish that it was for that reason excessive.

62 Counsel for the applicant referred us to the decision in R v McQueeney [2005] NSWCCA 168, in which Mason P (in a judgment with which Grove J and Howie J concurred) considered a challenge of manifest excess to a sentence with a 13 year notional starting point for an offence under s 66B (at [20] - [26]). In assessing the objective gravity of the offence in that case it was noted that the offender had been actively engaged in the attempt and that the substantive offence may well have succeeded but for the fact that the complainant had awakened. Given those features of the offence, this Court rejected the challenge of manifest excess, observing that the sentence "may well be regarded as a sentence towards the top of the range" (at [26]). The offender in McQueeney had a long history of offences against children and the subject offence involved a breach of trust. 63 In assessing the challenge of manifest excess it is difficult to speak of a general pattern of sentencing for offences of this type since there are relatively few of them. The facts of this offence are set out at paragraph [37] above: the applicant did not persist with the attempt. Taking into account the maximum penalty for this offence, the observations of this Court in McQueeney and the Judge's assessment of this offence as in the mid-range of objective seriousness, I have concluded that his Honour's starting point did exceed the bounds of sound discretion. 64 It is necessary to re-sentence with respect to count 5. There remains the Crown's submission that re-sentencing for the offence charged in count 5 should not produce an overall result that is less than the sentence imposed by the Judge. This submission was not developed in the course of oral argument. To the extent that the Crown's submission is that no lesser aggregate sentence than one of 15 ½ years is warranted in law, I consider that it should be rejected. 65 The applicant affirmed an affidavit on 3 April 2006 and we were invited to take its contents into account on re-sentencing. The applicant has been held at the MSPC at Long Bay since 20 February 2006. Prior to this he was held at the Parklea Correctional Centre and at the Long Bay prison hospital. He is in protective custody and is currently classified as "limited association" for his personal safety. He does not set out any particular limitations to which he is subject under this regime. He is undertaking a course in celestial navigation offered by TAFE New South Wales. He has also completed numeracy and communication courses and is doing a writing course. Certificates recording his achievements are annexed to his affidavit. He has been seeing a psychologist on a regular basis and this has assisted him to deal with claustrophobia. He intends to complete a sex offender program, but is not as yet eligible to undertake the program because of the length of his sentence. 66 In re-sentencing the applicant for these offences it is necessary to take into account the purposes of sentencing set out in s 3A of the Sentencing Procedure Act together with the provisions of s 21A of that Act. 67 I have taken into account the matters advanced on the applicant's behalf. He is a sixty-one year old man with longstanding health problems. The medical evidence does not persuade me that his sentence should be reduced to take into account the greater burden that imprisonment will impose on him: R v BJW [2000] NSWCCA 60; 112 A Crim R 1 per Sheller JA at 6-7; [23] - [27]. The circumstance that the offender was the victim of sexual abuse as a child is a matter that may be taken into account in mitigation of penalty: R v AGR (unreported) NSWCCA 24 July 1998 per James J at 13 (with whose judgment Mason P and Grove J concurred). The psychiatric evidence does not go so far as to suggest that the history of sexual abuse contributed to the applicant's paedophilia and the present offences. The applicant had the benefit of this history being taken into account in his favour on the occasion when he appeared before Karpin DCJ for sentence. I do not consider that it is a circumstance that entitles him to mitigation in relation to the present series of offences committed in breach of the bond that Karpin DCJ imposed. I have regard to the serious assault to which the applicant was subject while on remand. I consider it is appropriate to mitigate the sentence in some degree to take account of this extra-curial punishment: R v Daetz [2003] NSWCCA 266; 139 A Crim R 398 per James J at [62]. However any mitigation must be tempered by the need for the sentence to give appropriate weight to general and specific deterrence. 68 I consider that the starting point for the sentence for the offence of attempted sexual intercourse should be 13 years' imprisonment. Allowing the applicant the discount of 20 percent for the utilitarian value of his plea of guilty, the sentence for the attempted sexual intercourse offence that I propose is one of 10 years and 3 months' imprisonment. 69 The Judge imposed concurrent sentences with respect to each group of offences involving a single complainant, save in the case of WV. His Honour partly accumulated the sentence for the offence charged in count five against WV on the other sentences for offences against WV. Each of the offences committed against WV took place within a matter of days, however the offence charged in count 5 was a wholly separate act of criminality and I consider the partial accumulation that his Honour ordered to be appropriate. I propose that the sentence for the offence charged in count five should commence on 17 October 2005. 70 The Judge found special circumstances and departed from the statutory proportion between the non-parole period and the balance of the term of the sentence for the purposes of s 44(1) of the Sentencing Procedure Act. I consider that his Honour was right to do so, taking into account that the sentences on counts 2, 3, 4 and 5 which have non-parole periods were partly accumulated on earlier sentences. The sentence for count 10, after a discount of approximately 20 percent, is one of 10 years and 3 months. I propose specifying a non-parole period of 5 years and 3 months in relation to this sentence to date from 17 October 2005. The effect of the orders that I propose is that the aggregate sentence will be one of 12 years and 9 months' imprisonment with an effective non-parole period of 7 years and 9 months.

2. Allow the appeal with respect to the sentence imposed on count 5, in lieu thereof substitute a sentence comprising a non-parole period of 5 years and 3 months to date from 17 October 2005 and a balance of term of 5 years. The first date on which the applicant will be eligible for consideration of release on parole is 16 January 2011.

3. Dismiss the appeal and confirm the sentences imposed in the District Court on counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12,13,14,15,16,17, and 18.

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