Nevertheless on the second occasion there having been sexual activity on the first, it is difficult to see that the offender would have been oblivious to that as a reasonable possibility. He certainly showed no restraint on the second occasion and indicated no disinclination to participate.
26 The Judge concluded that it was necessary to partly cumulate the sentences to reflect the fact that there were two separate and discrete series of incidents. He found special circumstances "by reason of his mental health issues, and his need for ongoing psychological treatment, the fact that this will be his first time in custody and that it is likely that the sentence will be served in protection".
Crown submissions
27 The Crown submitted that a number of features of the Judge's process of reasoning stood out in the sentencing remarks. It was argued that the Judge gave prominence to the complainant's active consent to the offences and that "this is the core to understanding the low level of sentences imposed". The Crown criticised the Judge for taking a "global approach to an assessment of the objective seriousness of the various offences without differentiating where the particular offence lay on the scale of seriousness". It was suggested that his Honour was inconsistent in finding that there was at least an increase in the moral culpability of the respondent in relation to the second series of offences and yet he imposed the same penalty as for the first series of offences. The Crown submitted that the Judge was also inconsistent in his finding that the degree of exploitation of the complainant's youth was "significant" and yet the level of sentences did not accord with this finding. The Crown referred to a "notable absence" of any reference to general deterrence.
28 Although the Crown relied upon one ground of appeal, being that the sentences were manifestly inadequate, it identified a number of ways in which it asserted that such a result might have come about. Firstly, it submitted that the Judge failed to properly assess the objective seriousness of the offences, in particular, by taking into account the complainant's "active encouragement of the respondent". The Crown referred to the decision of this Court in R v SG [2003] NSWCCA 220 where Wood CJ at CL at [21] accepted that the fact that the complainant consented might render the objective circumstances of the offence "somewhat less serious" depending on the age of the offender and the victim. The Crown argued that, given the disparity in the ages and level of maturity between the victim and the respondent in the present case, no mitigation arose from the complainant's consent and encouragement of the respondent.
29 The Crown points to the disparity between the standard non-parole period for the s 61M(1) offences of 5 years and the sentence of 3 months imposed by his Honour and contends that the Judge paid lip service to the requirement that the standard non-parole period remain as a guide post to the ultimate sentence. This is particularly so, argues the Crown, when the Judge described the criminality of the respondent as falling between the "low to mid range" of offending. It was submitted that a sentence of a fixed term of 3 months for the indecent assault offences completely fails to reflect the objective circumstances of the offences or the relevance of the standard non-parole period.
30 The Crown complains that the Judge considered the seriousness of the offences in a "global way" without paying attention to each individual offence and analysing its seriousness as is required by Pearce v The Queen (1998) 194 CLR 610. In particular the Crown argues that the sentence for the second series of offences is identical to that for the first series of offences, yet the Judge acknowledged that the second series of offences carried a greater degree of moral and criminal culpability on the basis that the respondent must have at least seen the possibility of sexual activity occurring.
31 The Crown also submitted that the Judge must have given too much weight to the respondent's prior good character particularly having regard to the fact that the offences were calculated. Similarly the Crown contends that the Judge paid too much regard to the respondent's prospects of rehabilitation notwithstanding that the psychologist reported that the respondent had little insight into his offending. Further the Crown argued that the Judge erred in taking into account that the respondent would serve his sentence "in harsher circumstances" having regard to the fact that this is a common element in sentencing an offender for child sexual assault offences and is taken into account in the range of sentences imposed for such offences: R v Durocher-Yvon (2003) 58 NSWLR 581.
Respondent's reply
32 The respondent reminded the Court of the rarity of Crown appeals and the limits placed upon the Court's discretion to interfere particularly where the ground relied upon by the Crown is that the sentence is manifestly inadequate: see R v Wall [2002] NSWCCA 42 and R v Baker [2000] NSWCCA 85. It was submitted that the sentences imposed were not outside the range available to the Judge in the exercise of his discretion. The Crown had conceded and the Judge accepted that the seriousness of the offences were in the "low to mid range".
33 Much weight is placed by the respondent upon his mental condition as an answer to the Crown's complaint that the Judge failed to have any regard to the importance of general deterrence when sentencing the respondent. In particular it was argued that as the psychologist had found that the offences were caused by the respondent's depressive illness, then the principles in cases such as R v Scognamiglio (1991) 56 A Crim R 81 and R v Israil [2002] NSWCCA 255 apply. The mental condition of the respondent was said to impact upon his criminal culpability for the offences and permitted the Judge to give less weight to general deterrence.
34 In answer to the matters raised by the Crown it was submitted that the Judge was entitled to give weight to the very active role taken by the complainant particularly in light of the respondent's mental condition. It was noted that the complainant had been the person who had initiated and directed the sexual activity. Emphasis was placed upon the fact that the respondent was not a paedophile and that treatment of his mental condition would ensure his rehabilitation.
Determination of appeal
35 In my opinion the Crown submissions should be accepted and the sentence is manifestly inadequate to a very significant degree. In light of the difference in the ages between the respondent and the complainant there was little mitigation in the fact that the complainant was consenting and encouraging the respondent. Had the complainant not been consenting, the criminality would have been aggravated for that reason. As the Judge noted, the culpability of the respondent for the second series of offences was increased above that for the first series. The offences committed on 19 April were more serious in themselves and the respondent must have known of at least the possibility of further sexual activity with the complainant. I would be prepared to find beyond reasonable doubt that the respondent knew that sexual activity would be the result of the meeting with the complainant and he went to meet her for that purpose. The respondent had ample time to reflect on his conduct on 27 January and cease the relationship. The sentences for the second series of offences fail to reflect the Judge's finding as to the increased culpability for those offences or the level of the respondent's criminality.
36 The Judge was not prepared to mitigate the offences on the basis that they were not part of planned criminal activity. The Judge accepted that the meetings with the complainant were planned and that the relationship arose from the respondent's activity on the Internet site. At that time the respondent knew the complainant's age and he was disguising his. It is clear that by the time of the first meeting the respondent was involved in an inappropriate relationship with the child from which he must have been obtaining sexual gratification. The respondent discussed with the complainant "sexually explicit matters" on the telephone and via the Internet in what the complainant referred to as "phone sex or cyber sex". There may be an argument as to whether the respondent was "grooming" the child, as that term is used in relation to paedophilia, but this was not a case where a vulnerable man found himself suddenly and by chance in the company of a promiscuous child.
37 The sentences imposed generally do not reflect the Judge's expressed opinion that offences of this type are very serious or that the offending was in the low to mid range. If the sexual intercourse offences were below the middle range of offending, they were not very far below, given their nature, the age of the complainant and the disparity between her level of maturity and that of the respondent. The Judge found that the degree of exploitation of the youth of the victim was "significant", which in my view is an underestimation at least so far as the second group of offences are concerned. The fact that there was no long term history of offending is relevant but not decisive to a determination of where in the range of offending covered by s 61M(1) and s 66C(1) these particular offences came: R v AJP (2004) 150 A Crim R 575 at [20].
38 One of the difficulties in sentencing the respondent having regard to the standard non-parole period specified for the s 61M(1) offences is the somewhat curious and inconsistent approach of the legislature in that regard. As has been pointed out the standard non-parole period for an aggravated indecent assault is imprisonment for 5 years yet the maximum penalty prescribed is 7 years. However the maximum penalty for each of the sexual intercourse offences was 13 years with no standard non-parole period. Yet clearly the sexual intercourse offences were more serious than the indecent assault offences, the latter being somewhere towards the lower end of the scale of seriousness for those offences.
39 The Judge accepted that the respondent was suffering from depression at the time of offending. He made no finding as to the causal relationship between the illness and the offending. I would question the competence of the psychologist to give the opinions he did so far as they suggest that the respondent was suffering from a major psychiatric illness and do not accept his findings where they have not been accepted by the Judge. Their reliability so far as the respondent's mental history was concerned was highly dubious given that they were based exclusively on what he was told by the respondent. The presentence report indicates that at best the respondent is an unreliable historian in relation to his treatment for his depression. But in my opinion, even if it is accepted that the applicant's mental state had some role to play in the offending, I do not believe that it could be a factor justifying the extraordinary leniency of the sentences imposed, especially for the second group of offences given the circumstances in which they occurred.
40 Deterrence is one of the principal purposes of punishment. This was emphasised in R v Radich [1954] NZLR 86 where the Court said at 87: