Regina v Dunn [2004] NSWCCA 346 | Case summary

The applicant had been unlawfully brought to New South Wales by being unlawfully expelled from Honduras and then being unlawfully extradited from Florida in the United States of America. 55 As already stated at the beginning of this judgment, the applicant pleaded guilty to all twenty-seven counts on 26 June 2001 and these pleas of guilty were never withdrawn at any time during the proceedings before Judge Finnane. Before this Court could entertain the applicant's appeal against conviction, the Court would have to grant leave to the applicant to withdraw his pleas of guilty. The Court could grant leave to the applicant to withdraw the pleas of guilty, if not to grant leave to withdraw the pleas would involve a miscarriage of justice. 56 In R v Davies (unreported Court of Criminal Appeal 16 December 1993) Badgery-Parker J, with whose judgment the other members of the Court agreed, in a passage in his Honour's judgment which has often subsequently been quoted or referred to with approval (for example in R v Toro-Martinez (2000) 114 A Crim R 533 at 538 (26) per Spigelman CJ), said at p 8:- "The test is whether the circumstances revealed a miscarriage of justice. The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts…. and it is not necessary to be accorded such finality if there are circumstances which indicate that the plea 'was not really attributable to a genuine consciousness of guilt'… If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is… 'an issuable question of guilt' - to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial". 57 In R v Boag (1994) 73 A Crim R 35 Hunt CJ at CL, with the concurrence of the other members of the Court, said at p 37:- "A miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty. Such a miscarriage will be established not only where the applicant did not appreciate the nature of the plea which he had entered but also, for example, if there was no evidence upon which he could have been convicted, or if he had not intended to admit that he was guilty or if his plea had been induced by fraud or threats or other impropriety, when he would not otherwise have pleaded guilty… As Badgery-Parker J said in Davies (at p 8), there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt…. The requirement that a miscarriage of justice be demonstrated before leave is granted to withdraw a plea is well settled in the authorities to which I have referred". 58 In R v Bayliss [2002] NSWCCA 11 the Court said at (12):- "Finally, as a matter of clear legal principle, we observe that since it is the appellant who contends that a miscarriage of justice has occurred, he bears the onus of demonstrating that fact… To the extent to which this depends upon a resolution of matters of fact, he bears the onus of establishing the necessary facts…" 59 As we have already indicated, the applicant's pleas of guilty were entered on 26 June 2001 and remained in effect during a sentence hearing which extended over almost six months and in which the applicant was continuously legally represented, albeit by a succession of counsel. At the hearing on 7 December 2001 counsel for the applicant told the court that an application which had been filed for leave to withdraw the pleas of guilty was itself being withdrawn and counsel urged Judge Finnane to take into account the applicant's pleas of guilty in sentencing the applicant. 60 There was no suggestion in the applicant's written submissions that he did not appreciate the nature of a plea of guilty or that he did not intend to plead guilty or that there was any charge in respect to which there was no evidence on which he could have been convicted. 61 The only offences as to which there is any suggestion in the applicant's written submissions that the applicant might not have been guilty are the offences charged in counts 8, 9 and 10 of the indictment of homosexual intercourse with a male person under the age of ten years, and the only suggestion made in the applicant's written submissions about these offences is that the complainant might not have been under the age of ten years at the time of the commission of the offences. 62 According to the applicant's written submissions, the Crown, in order to prove when it was that the offences charged in counts 8, 9 and 10 had been committed and, hence, that they had been committed when the complainant was under the age of ten years, relied on a video-audio tape recording, which showed the applicant committing a sexual act with the complainant and in which a radio broadcast could be heard, which could be dated to November 1986. The applicant says in his written submissions that he asserted to his lawyer that the video tape showing the applicant and the complainant had been contaminated by the addition to it of an audio recording of the radio broadcast. 63 This assertion made by the applicant in his written submissions, unsupported by any evidence, is insufficient to discharge the onus which rests on the applicant to establish that there is a real question about his guilt on any of the charges or that his pleas of guilty were not really attributable to a genuine consciousness of guilt. 64 In the first ground of appeal against conviction the applicant alleges that he was deceived into making the pleas of guilty. In his written submissions the applicant alleges that counsel then appearing for the applicant told the applicant that counsel had made a plea bargain with the prosecution, that, if the applicant pleaded guilty to all the offences charged, the prosecution would seek sentences much more lenient than those ultimately imposed. If there was any evidence of these allegations, then it might be arguable that the applicant's pleas of guilty were induced by some impropriety. However, there is no evidence before this Court of the making of any such plea bargain or of any such conversation between the applicant and his counsel. Furthermore, even if there was such evidence, we would not accept that the applicant would not otherwise have pleaded guilty to the charges. 65 As regards the second ground of appeal against conviction, the applicant alleges in his written submissions that the Crown agreed, during the pendency of the applicant's application for a stay of the criminal proceedings against him, that the Crown would not use in the prosecution of the applicant any evidence which police had obtained before 1994 and that the Crown, in breach of the agreement, proposed to use as evidence against the applicant in any trial of the applicant, videos which had been compiled by combining extracts from videos which had been obtained by the police before 1994. There is no evidence before this Court to support the applicant's allegation about the provenance of the videos which the Crown proposed using as evidence in any trial of the applicant. It was the Crown case that police had not obtained the videos the Crown proposed using as evidence until some time in 1996, and the Crown case was supported by evidence from a police officer. 66 As to the third ground of appeal against conviction, the decision of Gallop J in R v Tilley was simply a decision, on the particular facts in that case, that a stay of criminal proceedings should be ordered on the ground that the proceedings were an abuse of process. The decision in R v Tilley does not create any precedent and could not give rise to any ground of appeal against the applicant's convictions. 67 As to the fourth ground of appeal against conviction Judge Finnane disclosed during the proceedings on sentence that he had once had some professional association with Channel 9, and that he had communicated with Channel 9 about the proposed showing by Channel 9 of a programme about the applicant during the pendency of the proceedings on sentence. No application was made to Judge Finnane that he should disqualify himself and his Honour was not obliged to disqualify himself. 68 The last two grounds of appeal sought to be relied on by the applicant, even if the factual matters on which they are based were established, could not amount to valid grounds of appeal against conviction. 69 We conclude that this Court should not grant leave to the applicant to withdraw his pleas of guilty and, accordingly, the applicant's appeal against conviction is dismissed.

Decision on Sentence 95 As we remarked earlier in this judgment, the sentences imposed for the offences charged in counts 23, 24 and 25 of the indictment exceeded the maximum sentence fixed by s 61E(2) or s 61N of the Crimes Act and, consequently, as the Crown conceded, this Court must intervene and re-sentence the applicant for those offences. 96 As was also conceded by the Crown, the sentences imposed for the offences charged in counts 1 and 7 of the indictment, although not exceeding the maximum sentence of two years fixed by s 61E(2) of the Crimes Act , were equal to that maximum sentence and were imposed by the sentencing judge in the erroneous belief that the maximum sentence was four years and, consequently, his Honour's sentencing discretion also miscarried in relation to these offences and this Court must determine what sentences it would itself impose for these offences. 97 The sentences imposed for the offences charged in counts 6, 26 and 27 of the indictment were imposed in the erroneous belief that the maximum penalty was imprisonment for two years and a fine of fifty penalty units, whereas the maximum penalty was imprisonment for ten years and a fine of 2,000 penalty units. This was an error in favour of the applicant. However, although his Honour was mistaken about the maximum penalty available and the maximum penalty available was much higher than his Honour thought, no appeal against these sentences was brought by the Crown and we would not regard the sentences imposed by his Honour as unduly lenient. 98 We have already referred to remarks made by Judge Finnane about the applicant's pleas of guilty. Subsequently to Judge Finnane sentencing the applicant, it was held in this Court ( R v Sharma (2002) 54 NSWLR 300) that, notwithstanding the decision of the High Court in Wong , sentencing courts in this State should continue to apply R v Thomson (2000) 49 NSWLR 383, the guidelines judgment concerning pleas of guilty. In R v Thomson at 419 (160) it was stated that sentencing judges are encouraged to quantify the effect of a plea of guilty on a sentence being imposed, that the utilitarian value of a plea of guilty to the criminal justice system should generally be assessed in the range of a 10 to 25 per cent discount on sentence and that the primary consideration determining where in that range a particular case should fall is the timing of the plea of guilty, that is the time when the plea of guilty is made. 99 Judge Finnane obviously found that the applicant's pleas of guilty had been late pleas of guilty and this was a finding his Honour could properly make. The applicant's trial had been fixed to commence on 25 June 2001, that is the day before the applicant entered his pleas of guilty. Even if it is accepted that the applicant had been justified in bringing the application for a stay of the criminal proceedings against him, four months had elapsed since his application for a stay had been finally disposed of, by the High Court refusing special leave to appeal from the decision of the Court of Criminal Appeal. 100 However, even though the applicant's pleas of guilty were late pleas of guilty, the pleas of guilty nevertheless had utilitarian value for the criminal justice system (what would have been a long trial was averted and the complainants were spared having to give evidence) and a discount of at least 10 per cent for the purely utilitarian value of the pleas of guilty should have been allowed. 101 Judge Finnane accepted that, because of the risk of violence from other prisoners, the applicant would be likely to serve the sentences which would be imposed on him "in strict confinement" and that some allowance should be made for this factor. 102 At the hearing of the application counsel for the applicant stated that he did not object to the Court making general use of an affidavit sworn on 8 February 2004 by Mr Peter Tansey, a Senior Assistant Superintendent of the Goulburn Correctional Centre, about the applicant's conditions of custody after he had been placed in the Goulburn Correctional Centre in January 2003. It is apparent from Mr Tansey's affidavit that in February 2004, although the applicant was subject to somewhat more onerous conditions of custody than those which applied to prisoners in the general prison population, it would be an overstatement to say that he was being held "in strict confinement". 103 In his affidavit Mr Tansey said that the applicant had been admitted to Goulburn Correctional Centre in January 2003 as a "non-association inmate" but that in March 2003 his classification had been changed to "limited association inmate", which enabled him to have limited association with other inmates. In February 2004 the applicant was housed in a unit with twelve other inmates and he had contact with those other twelve inmates. He was sharing a cell with one other inmate and was spending "more time in his cell than normal discipline inmates in the general prison population". The applicant was working alone in a secured room as a laundry sweeper. The applicant had access to services and programmes. 104 As Judge Finnane recognised, some allowance also had to be made for the applicant's state of ill health. 105 If, as his Honour said in his remarks on sentence, he had taken all of these specific matters into account, that is the pleas of guilty, the applicant's more than usually onerous conditions of custody and the applicant's ill health, then the total effective sentence his Honour must have had in mind, before allowing for these matters, must have been at least thirty-five years. 106 As regards the additional specific matters raised by the applicant in the submissions he prepared himself, I make the following comments:- 107 According to the Crown's evidence, the video tapes on which the charges against the applicant were based were seized by police in 1996. The applicant was then overseas. After the applicant had been brought back to Australia and had been charged, the applicant brought and pursued the application for a stay of the criminal proceedings against him. This application was finally disposed of in February 2001. In these circumstances the applicant was not entitled to any discount on sentence on the basis that there had been a delay in his being sentenced. 108 There was no evidence before Judge Finnane, and there is no evidence before this Court, of any promises allegedly made to the applicant (apart from the indemnity and the undertaking) or of any breaches of any such promises. 109 As previously noted, the principal submission made by Mr Stratton was that the sentences imposed on the applicant were manifestly excessive as far exceeding the upper limit of the range of sentences which had been established by sentences imposed on other persons sentenced for multiple offences of child sexual assault. In support of this submission counsel for the applicant referred to a number of cases including R v AB (unreported Court of Criminal Appeal 7 July 1997; unreported CCA 6 December 2000); R Fisk (unreported Court of Criminal Appeal 21 July 1998); R v Bell (unreported District Court Davidson DCJ 12 February 1999); R v Allen (unreported District Court Phelan DCJ 7 November 2000); and, particularly, R v Hill (unreported Court of Criminal Appeal 7 July 1992). 110 In R v AB the offender pleaded guilty to sixty-seven offences of child sexual assault, committed against fifteen children aged between nine and eleven years over a period of about ten years. The offender was a member of a religious teaching order and the victims were some of his pupils. 111 AB had fled to the United States, after he became aware that complaints had been made about his conduct. He was extradited from the United States on twenty-eight of the offences, after contested extradition proceedings. However, after having been extradited from the United States, the offender co-operated fully with the police, including volunteering information about thirty-nine other offences he had committed and waiving any objections under extradition law to being dealt with for those further offences. The offender was initially sentenced to sentences totalling eighteen years, with minimum terms totalling thirteen and a half years. An appeal against sentence to the Court of Criminal Appeal was dismissed. However, on a further appeal to the High Court the High Court held that the sentencing judge's discretion had miscarried, because he had not taken into account that further extradition proceedings had been avoided by the offender's waiving of any objection and had not taken into account the desirability of encouraging extradited persons to make a full disclosure of all their criminality and to waive their rights under extradition law. The matter having been remitted by the High Court to the Court of Criminal Appeal, the Court of Criminal Appeal sentenced the offender to sentences totalling fifteen years with minimum terms totalling twelve years. 112 In R v Fisk the offender pleaded guilty to twenty-four offences involving three victims. Nine of the offences had been committed against one victim between 1974 and 1978 and consisted of one offence of indecent assault and eight offences of buggery. Another eight offences had been committed against a second victim between 1986 and 1988 and consisted of two charges of sexual intercourse without consent with a person under the age of sixteen years, one charge of indecent assault on a person under the age of sixteen years, four charges of homosexual intercourse with a male between the ages of ten and eighteen years and one charge of aiding and abetting an act of homosexual intercourse with a person between the ages of ten and eighteen years. Another seven offences had been committed against a third victim between January and July 1988 and were offences of the same kinds as the offences which had been committed against the second victim. The twenty-four offences which had been charged were not isolated, aberrant acts but were representative of the lifestyle of the offender. 113 Fisk was sentenced to terms of imprisonment totalling twelve years with minimum terms totalling nine years. An appeal by Fisk against the sentences which had been imposed was dismissed by the Court of Criminal Appeal. 114 In R v Bell the offender was found guilty after a trial of twenty-eight offences committed against five victims, including sixteen charges of homosexual intercourse with a male between the ages of ten years and eighteen years, three charges of indecently assaulting a child under the age of sixteen years and under the offender's authority, two charges of indecently assaulting a male, six charges of indecently assaulting a child under the age of sixteen years and one charge of an act of indecency with a child under the age of sixteen years. 115 Subsequently, the offender pleaded guilty to a further sixteen charges against thirteen additional victims, comprising three charges of homosexual intercourse with a male between the ages of ten years and eighteen years, one charge of an act of indecency with a person under the age of sixteen years, one charge of inciting an act of indecency with a person under the age of sixteen years, two charges of indecently assaulting a male, six charges of indecent assault and three charges of indecent assault on a child under the offender's authority. 116 The offender also asked the sentencing judge to take into account in sentencing him thirty-one further offences of similar kinds. 117 The seventy-five offences for which the offender was sentenced or which were taken into account in sentencing the offender were committed between 1978 and 1991 against a total of eighteen boys, whose ages generally ranged from twelve years to fifteen years. 118 The offender was sentenced to terms of imprisonment totalling fourteen years with minimum terms totalling ten and a half years. An appeal against conviction was abandoned and the Court of Criminal Appeal refused leave to withdraw the abandonment of the appeal. 119 Judge Finnane referred to Bell at p24 in his remarks on sentence. His Honour noted that Bell was, like the applicant, a child sexual assault offender of great notoriety, that he had committed many crimes and that he had engaged in predatory activities. His Honour distinguished Bell's case on the grounds that the children who had been the victims of Bell's offences were somewhat older than the victims of the applicant's offences and that the judge who had sentenced Bell had accepted that Bell understood that his conduct was wrongful and had accepted Bell's assurance that he would not re-offend. 120 In R v Allen the offender was sentenced for twenty-six offences of child sexual assault, including ten charges of buggery. A further twenty-one offences were taken into account in sentencing the offender. The offences had been committed between 1966 and 1999 against a total of eleven boys aged between nine and seventeen years but mainly between ten and thirteen years. Sentences totalling fourteen years were imposed with minimum terms totalling nine and a half years. 121 The case on which counsel for the applicant, and the applicant himself, placed particular reliance was R v Hill . 122 Hill pleaded guilty to charges of twenty-three offences, including eight offences of homosexual intercourse with a person between the ages of ten and sixteen years, one offence of homosexual intercourse with a child under the age of ten years, five offences of indecent assault, two offences of homosexual intercourse with a person under the age of eighteen years, offences of inciting a person under the age of sixteen years or eighteen years to commit an act of indecency and one offence of inciting a male person under the age of eighteen years to commit an act of homosexual intercourse. The offences were committed against seven boys at various times between 1987 and 1991. 123 Hill was sentenced in the Supreme Court by Loveday J on 29 November 1991. In his brief remarks on sentence Loveday J referred to Hill's bad previous criminal record for sexual offences. His Honour said that he took into account "most strongly" Hill's pleas of guilty, particularly because they saved the young victims from having to appear in court. 124 In sentencing Hill Loveday J adopted the sentencing practice which was followed in this State before the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 of reflecting the total criminality in all the offences in the sentence imposed for the most serious offence, the offence of homosexual intercourse with a child under the age of ten years, and imposing fixed terms of imprisonment or penal servitude for all the other offences, which were to be served concurrently with parts of the minimum term for the principal sentence. For the offence of homosexual intercourse with a child under the age of ten years Loveday J sentenced Hill to a sentence of sixteen years with a minimum term of twelve years, commencing on 10 March 1991, the date Hill had gone into custody. 125 On 7 July 1992 an appeal by Hill to the Court of Criminal Appeal against the severity of the sentences imposed by Loveday J was dismissed. The leading judgment in the Court of Criminal Appeal was given by Smart J, with whom Gleeson CJ and Carruthers J concurred. 126 In his judgment Smart J summarised Hill's conduct as follows:- "The offences involved a range of sexual acts. Some involved the fondling of a boy's penis, some involved oral intercourse either by or on the boy, some involved penile/anal intercourse and some involved acts of gross indecency. In some instances the applicant incited one or more of the boys to perform indecent acts or assaults upon another boy or other boys. Sometimes three boys were involved at the one time. In some instances the applicant recorded or caused to be recorded what took place on a video tape". 127 In his judgment Smart J referred to Hill's criminal record. This criminal record included four convictions in 1968 for indecent assault on a male person for which sentences of imprisonment were imposed; a conviction in 1974 for aggravated assault of a sexual nature on a male person under the age of seventeen years; and convictions in 1979 for five offences of indecent assault on a male, one offence of assault with intent to commit buggery and one offence of buggery, for which sentences of imprisonment totalling eleven years were imposed. Hill was released from prison on 2 August 1985, having served those sentences. Smart J, having regard to the dates of the offences for which Hill had been sentenced by Loveday J, commented:- "The disturbing thought is that within less than two years after his release and having spent six and two third years in gaol he had returned to his old habits ". 128 Hill was not legally represented either before Loveday J or on his application for leave to appeal to the Court of Criminal Appeal. In the written submissions he himself prepared for the application to the Court of Criminal Appeal he referred to close friends and acquaintances "with similar sexual tastes to my own" and Smart J observed that "he seems to feel that he is entitled to give expression to those tastes" and that "there appears to be little or no prospect of rehabilitation". 129 Although Smart J concluded that Hill's appeal against the severity of the sentences passed on him should be dismissed, his Honour described "the sentence" as "a lengthy and heavy one" and said that he had "found the question of sentence a disturbing and difficult one". 130 On 26 March 1997 Hill was sentenced in the District Court by his Honour Judge Shillington on thirteen charges of aiding and abetting the applicant (that is Robert Joseph Dunn) in committing offences of having sexual intercourse, within the definition of "sexual intercourse" in the Crimes Act , with a child aged between ten and eighteen years, being the same child as was the victim of the offences charged in counts eleven to sixteen of the indictment against the applicant. These thirteen offences had come to the attention of police, because Hill was shown in the videos which police had obtained possession of in 1996. Hill pleaded guilty to all thirteen charges at the earliest opportunity. 131 Judge Shillington considered that it was clear that, if Hill's conduct in aiding and abetting the applicant had been brought to Loveday J's attention when he sentenced Hill in 1991, "it would have been taken into account in the sentence which was imposed". Accordingly, Judge Shillington, while sentencing Hill to concurrent fixed terms of imprisonment, the longest of which were four years, made all the sentences commence from the date on which Hill had gone into custody, 10 March 1991, with the consequence that all of the sentences would be concurrent with part of the minimum term of the principal sentence imposed by Loveday J and Hill would, effectively, not receive any additional punishment. 132 On 28 November 1997 Hill was sentenced in the District Court by his Honour Judge Sides on four further charges of offences committed against a single victim, consisting of three charges of homosexual intercourse with a person between the ages of ten and eighteen years and one charge of inciting an act of indecency. 133 Judge Sides decided that, because the victim of these offences was not one of the victims of the offences for which Hill had been sentenced in 1991, some effective additional punishment should be imposed on Hill. On each of the three charges of homosexual intercourse his Honour imposed a sentence of four years imprisonment, with a minimum term of twelve months commencing on 10 March 2003 and an additional term of three years commencing on 10 March 2004. 134 The overall effect of the sentences passed on Hill by Loveday J, Judge Shillington and Judge Sides was that Hill was sentenced to terms of imprisonment totalling sixteen years, with minimum terms or fixed terms of imprisonment totalling thirteen years. 135 In considering the sentences passed on Hill it is necessary to keep in mind what Hunt CJ at CL said, with the concurrence of the other members of the Court, in R v Morgan (1993) 70 A Crim R 368 at 371:- "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range". 136 These observations by Hunt CJ at CL in R v Morgan have often been referred to with approval in subsequent cases, for example R v Merritt [2004] NSWCCA 19 at (62). 137 However, in the present case Hill, although not strictly a co-offender (except in respect of the offences of aiding and abetting the applicant for which Hill was sentenced by Judge Shillington) was not simply another offender who had similar characteristics to the applicant and who had committed similar offences to the applicant. Hill and the applicant knew each other and were members of the same circle of paedophiles. Two of the victims of the offences for which the applicant was sentenced had also been victims of some of the offences for which Hill was sentenced. A matter which Judge Finnane regarded as aggravating the applicant's criminality was that some of the offences had been committed in the company of Hill and Hill had videoed the applicant committing the offences. 138 There was a further reason why the sentences passed upon Hill in 1991 and considered by the Court of Criminal Appeal in 1992 are of particular significance in the sentencing of the applicant. In R v MJR (2002) 54 NSWLR 368, a decision of a Court of Criminal Appeal constituted by five judges, which was handed down on 12 April 2002, that is after Judge Finnane had sentenced the applicant on 7 December 2001, the Court of Criminal Appeal held that in sentencing an offender it is proper to take into account sentence practice as at the date of the commission of the offence, when sentencing practice has moved adversely to the offender between the time of the commission of the offence and the time of sentencing. 139 In so deciding the Court of Criminal Appeal applied the Court's previous decision in R v Shore (1992) 66 A Crim R 37, in preference to the Court's previous decision in R v PLV (2001) 51 NSWLR 736, to which Judge Finnane had been referred by the Crown in the proceedings on sentence. In R v Shore , a case in which many years had elapsed between the commission of the offences and the offender being sentenced (the offender having absconded while on bail), Badgery-Parker J who gave the leading judgment, approved (at p 42) as being correct some remarks which had been made by the sentencing judge:- "In my opinion I should, so far as I am able to do so, seek to impose upon the offender a sentence appropriate not only to then applicable statutory maxima but also to then appropriate sentencing patterns. That is by no means easy but in my view I must endeavour to do so". 140 The present Court is, of course, bound to apply the decision of the five judge Court of Criminal Appeal in R v MJR . The sentences imposed on Hill in 1991 and the assessment of those sentences by the Court of Criminal Appeal in 1992 provide information about sentencing patterns for offences of child sexual assault in 1991-1992, that is at a time much more proximate than the present to the times at which the applicant's offences were committed. 141 Hill's case was certainly regarded as relevant, and important, during the hearing of the proceedings for the sentencing of the applicant. At times during the hearing both the Crown Prosecutor and Judge Finnane referred, even if inaccurately, to Hill as having been the applicant's "co-offender". Submissions were made to Judge Finnane about what were submitted to be similarities or differences between the applicant's case and Hill's case. As previously noted, the hearing of the proceedings on sentence was adjourned, at the instance of Judge Finnane, to enable his Honour to obtain further information about the sentencing of Hill. Ultimately, a substantial amount of material about the sentencing of Hill was collected and became exhibit H in the proceedings on sentence. Exhibit H comprised the indictment presented against Hill, a summary of the counts in the indictment against Hill, Hill's criminal history, the judgments of the Court of Criminal Appeal on Hill's appeal, the facts sheets used in the sentencing of Hill and a large bundle of statements by or interviews of victims of the offences committed by Hill. 142 In his remarks on sentence Judge Finnane devoted almost an entire page to discussing Hill's case. This discussion contained an important error. His Honour said that the sentences of fixed terms of four years (or less), which had been imposed on Hill in 1997 (by his Honour Judge Shillington), "were made cumulative on his then sentence", whereas, as we have already stated, the sentences which were imposed on Hill by Judge Shillington were made fully concurrent with part of the minimum term of the principal sentence imposed by Loveday J and did not involve the imposition of any additional punishment. 143 In a later part of his remarks on sentence Judge Finnane said with respect to Hill's case:- "Whilst I have had regard to Hill's case and the sentences imposed on Hill, and whilst I have had regard to the fact that Hill was a persistent offender, I have formed the opinion that that case is not of a great deal of assistance to me in dealing with this case. And that is so because he was sentenced in 1991, he pleaded guilty at the outset, the offences were not as numerous as the current offences and they did not involve the circumstances of these offences". 144 Of these grounds for concluding that Hill's case was not of much assistance, the first ground given, that Hill had been sentenced many years before in 1991, so far from being a valid reason for distinguishing Hill, was, on the authority of Shore and MJR , wrong in principle. As we have already indicated, MJR was decided after his Honour sentenced the applicant and his Honour was not referred to Shore but only to PLV . 145 The second ground given by his Honour, that Hill had pleaded guilty at the outset, was a valid ground of distinction between Hill's case and the applicant's case. However, the applicant did ultimately plead guilty and, as we have already indicated, was entitled to a discount of at least 10 per cent for his pleas of guilty. 146 The third ground given by his Honour, that Hill's offences were not as numerous as the applicant's offences, could not be given much weight. The applicant was sentenced for twenty-seven offences. Hill had been sentenced for twenty-three offences. Three of the applicant's offences were for supplying small quantities of cannabis to boys who were not naive in the use of cannabis and these offences were, of themselves, quite minor offences. In any event, the total number of offences with which the applicant was charged was somewhat arbitrary, depending on decisions by the prosecution whether to charge a single offence or multiple offences for conduct by the applicant on a single occasion. 147 It is unclear what his Honour meant by saying that Hill's offences did not involve "the circumstances" of the applicant's offences. In the immediately following part of his remarks on sentence his Honour said that the applicant had engaged in predatory behaviour and had had his behaviour videoed. However, Hill also had engaged in predatory behaviour and it was Hill who had videoed the applicant. It would appear to us that the circumstances of Hill's offences were very similar to the circumstances of the applicant's offences. 148 We conclude that the reasons given by his Honour for deciding that Hill's case was not of much assistance in the sentencing of the applicant were wrong in principle or were of no, or only limited, weight or were left unexplained by his Honour. 149 We also consider it likely that, in having regard to Hill's case and the sentences imposed on Hill, his Honour was influenced by his mistaken view that the sentences of four years imposed by Judge Shillington on Hill had been made cumulative upon, and not concurrent with, the sentences imposed by Loveday J on Hill and that the total effect of the sentences imposed on Hill was more severe than it really was. 150 Apart from the grounds given by Judge Finnane in his remarks on sentence for distinguishing Hill's case, it was submitted both in the proceedings on sentence and before this Court that the applicant's offences were more serious than Hill's offences, because the applicant's offences included three offences of homosexual intercourse with a male person under the age of ten years (counts 8, 9 and 10), whereas Hill's offences included only one such offence (count 17 in the indictment against Hill). It was contended that the gravity of an offence of homosexual intercourse with a male person under the age of ten years is shown by what was the high maximum penalty for such an offence, penal servitude for twenty-five years; whereas the maximum penalty for an offence of homosexual intercourse with a male person between the ages of ten years and eighteen years was penal servitude for only ten years. 151 This is a valid ground of distinction between the applicant's case and Hill's case. However, there are some partially offsetting factors. 152 On each of counts 8, 9 and 10 in the indictment against the applicant the applicant's conduct was that he had sucked the complainant's penis. These were objectively serious offences to commit on children under the age of ten. However, each of these offences, considered by itself and grave though it was, was not as objectively serious as Hill's conduct in committing the offence charged in count 17 of the indictment against him, which involved actual penile/anal penetration of the victim. 153 Another partially offsetting factor was Hill's serious previous criminal history of convictions and prison sentences for child sexual assault offences, whereas the applicant had no previous criminal convictions. 154 We conclude that because of the close connection between the applicant's case and Hill's case and because, by virtue of the decision of the Court of Criminal Appeal in MJR , a sentencing court would be required to have regard to patterns of sentencing at times more proximate to the times of the commission of the offences by the applicant between 1985 and 1992, Hill's case was a case to which his Honour should have had particular regard. However, on grounds which were wrong in principle or could only be of little weight or which were left unexplained, his Honour decided that Hill's case was not of much assistance in the sentencing of the applicant. In deciding that Hill's case was not of much assistance in the sentencing of the applicant, his Honour was also influenced by his factual error in supposing that the sentences imposed on Hill by Judge Shillington had been made cumulative upon, and not concurrent with, the sentences imposed on Hill by Loveday J and that the total effect of the sentences imposed on Hill was more severe than it really was. In our opinion, these errors made by the sentencing judge with respect to Hill's case were such that his Honour's sentencing discretion generally miscarried. 155 We are further of the opinion that, notwithstanding the seriousness of the applicant's criminality and the distinctions which can properly be drawn between the applicant's case and other cases, the sentences imposed on the applicant were outside the range of sentences indicated by such cases as AB , Fisk , Bell , Allen and Hill . 156 It is, accordingly, necessary for this Court to re-sentence the applicant. 157 We have already set out the objective facts of the offences committed by the applicant and the subjective circumstance of the applicant. 158 The offences committed by the applicant were objectively very serious and, because they included no fewer than three offences of having had homosexual intercourse with a male under the age of ten years, the applicant's total objective criminality, even after allowing for partially offsetting factors, should be regarded as greater than Hill's. However, this Court is bound by the decision in MJR to sentence the applicant in accordance with patterns of sentencing at the times the offences were committed, so far as they can be determined, and the sentences imposed on Hill in 1991 considered by the Court of Criminal Appeal in 1992 evidence the patterns of sentencing which this Court is bound to apply. 159 We accept Judge Finnane's findings that the applicant has no insight into the depravity of his actions and has not shown any contrition. We also accept Judge Finnane's finding that, if his age and health permitted, the applicant would be likely to re-offend. However, as the applicant is now sixty-three years old and in poor health, it would seem unlikely that the applicant, if still alive after serving a lengthy prison sentence, would be able to resume re-offending. 160 In re-sentencing the applicant some allowance must be made for the utilitarian value of the applicant's pleas of guilty, his ill health and the likelihood that he will continue to serve his sentence in more than usually onerous conditions of custody. 161 In re-sentencing the applicant fixed terms of imprisonment should be imposed for most of the offences, because if a sentence containing a non-parole period and a parole period was set, the parole period would be subsumed in the non-parole period or the fixed term of some longer sentence or sentences. There is no necessity, as Judge Finnane thought, to set a non-parole period for every one of the sentences. In accordance with sentencing principle, where a fixed term of imprisonment is imposed the fixed term will be equivalent, not to the total term of a sentence containing a non-parole period and a parole period, but merely to the non-parole period of such a sentence. 162 Before indicating the sentences to be imposed upon the applicant, we wish to make the following two matters perfectly clear. Firstly, the sentences that we believe are appropriate in the circumstances of this case are not a guide to what would now be appropriate for an offender who committed similar offences in more recent years. As events have turned out one of the significant errors in the exercise of the sentencing discretion by Judge Finnane was that he did not have sufficient regard to the sentences imposed upon Hill. He applied, as he was bound to, the standing decision of this Court in PLV which was not overruled until five months after he sentenced the applicant. Consequently he did not take into consideration the requirement, recognised in MJR , to impose sentences within the range that was current at the time of offending. Sentences imposed in 1992 provide little assistance in determining the appropriate sentence or sentences to be imposed for similar offences committed in recent years. Sentences have increased since and this would have to be reflected in sentences imposed upon more recent offenders. 163 The second matter is that the Court is constrained in determining the appropriate sentences by those imposed upon Hill having regard to the close association between the two offenders and their criminal conduct. The applicant and Hill were not co-offenders in relation to most of the offences for which the applicant was sentenced and the principle of parity in sentencing joint offenders strictly does not apply. However, the criminality of the offender and Hill was so interrelated in time and space that they can fairly be considered as involved in the same criminal enterprise of seducing and violating underage males. Shillington DCJ sentenced Hill for offences as an accessory to sexual crimes committed by the applicant similar to those for which he must be re-sentenced by this Court. The sentences imposed upon Hill are, therefore, directly relevant and not merely as evidence of the sentencing pattern in 1991. 164 But for the fact that justice in the sentencing process requires there to be a substantial relationship between the sentences imposed upon Hill and those imposed upon the applicant the Court would have imposed sentences totalling 24 years and fixed a total non-parole period in accordance with a total sentence of that severity. Such a sentence would have properly reflected the applicant's criminality having regard to the fact that the sentencing range at the time of offending was less severe than that which now exists. However, in our judgment such a sentence would be unduly harsh having regard to the total sentence actually imposed upon Hill having regard to the close connection between their offences. The sentences we will impose are the least that can properly be imposed to reflect the objective seriousness of the applicant's criminal conduct. 165 We consider that the following sentences should be imposed on the applicant:- 166 On each of counts 1 and 7 (charges of an act of indecency for which the maximum penalty was imprisonment for two years), a fixed term of imprisonment of nine months. 167 On each of counts 2 and 11 (charges of indecent assault for which the maximum penalty was imprisonment for four years) a fixed term of imprisonment of fifteen months. 168 On each of counts 3, 4, 12, 17, 18, 19, 20, 21 and 22 (charges of homosexual intercourse with a male person between the ages of ten years and eighteen years in which the type of homosexual intercourse was some form of fellatio, for which the maximum penalty was imprisonment for ten years), a fixed term of imprisonment for four years. 169 On each of counts 5 and 15 (charges of homosexual intercourse with a male person between the ages of ten years and eighteen years in which the type of homosexual intercourse was penile/anal intercourse committed by the applicant on the complainant, for which the maximum penalty was imprisonment for ten years), a fixed term of imprisonment for five years. 170 On each of counts 8, 9 and 10 (charges of homosexual intercourse with a male person under the age of ten years, in which the applicant sucked the complainant's penis, for which the maximum penalty was imprisonment for twenty-five years), a term of imprisonment for eight years or an equivalent fixed term of imprisonment for six years. 171 On each of counts 13 and 14 (charges of attempted homosexual intercourse with a male person between the ages of ten years and eighteen years for which the maximum penalty was imprisonment for five years), a fixed term of imprisonment of two years. 172 On count 16 (a charge of sexual intercourse with a person between the ages of ten years and sixteen years for which the maximum penalty was imprisonment for eight years), a fixed term of imprisonment for three years. 173 On counts 23, 24 and 25 (inciting a person under the age of sixteen years to commit an act of indecency for which the maximum penalty was imprisonment for two years), a fixed term of imprisonment of one year. 174 On counts 6, 26 and 27 (supplying a prohibited drug for which the maximum sentence was imprisonment for ten years), a fixed term of imprisonment of nine months. 175 After considering questions of totality, cumulation and concurrency of sentences, we have concluded that all the sentences, apart from the sentences on counts 5 and 15 and on counts 8, 9 and 10, should be ordered to commence on 10 November 1997, the date on which the sentences imposed by Judge Finnane commenced, those sentences to be served concurrently with each other. The longest of the sentences commencing on 10 November 1997 are the sentences of fixed terms of imprisonment for four years on counts 3, 4, 12, 17, 18, 19, 20, 21 and 22 which would have expired on 9 November 2001. 176 The sentences of fixed terms of imprisonment for five years on counts 5 and 15 should commence on 10 November 2001 and expire on 9 November 2006, these two sentences to be served concurrently with each other. 177 The sentence on count 8 of a fixed term of imprisonment for six years should commence on 10 November 2006 and expire on 9 November 2012. The sentence on count 9 of a fixed term of imprisonment for six years should commence on 10 November 2008 and expire on 9 November 2014. The sentence on count 10 of a term of imprisonment for eight years should commence on 10 November 2009 and expire on 9 November 2017, with a non-parole period of six years commencing on 10 November 2009 and expiring on 9 November 2015. The earliest date on which the applicant will be eligible for release on parole is 9 November 2015. The total effect of the sentences is that the applicant is sentenced to terms of imprisonment totalling twenty years, with fixed terms of imprisonment and the non-parole period of the sentence imposed on count 10 totalling eighteen years. We consider that eighteen years is the minimum period of imprisonment the applicant should serve. Having regard to the applicant's lack of insight into his offending and his lack of contrition and the unlikelihood of the applicant being rehabilitated, we do not consider that any useful purpose would be served in setting any longer period during which the applicant would be eligible for release on parole. 178 The orders the Court makes on the application for leave to appeal against sentences are:- Leave is granted to the applicant to appeal against the sentences imposed by his Honour Judge Finnane. The appeal against those sentences is allowed. The sentences imposed by Judge Finnane are quashed and in lieu thereof the sentences we have nominated are imposed.

Regina v Dunn

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