REGINA v J C W [2000] NSWCCA 209 | Case summary

1 SPIGELMAN CJ: The facts and issues are set out in the judgment of Ireland J which I have read in draft. By reason of the Crown's concession that the conviction on counts 3 and 4 should be quashed, leave to appeal against sentence should be granted. It is necessary for this Court to exercise the sentencing discretion afresh. 2 I would not have interfered with the original sentence on any of the other bases: Ground 4, alleged failure to give sufficient weight to the plea of guilty; Ground 5, the sexual abuse suffered by the Applicant; Ground 6, that the sentence is manifestly excessive. I agree with Ireland J in these respects. 3 Grounds 2 and 3 raise an issue of broader significance. In exercising the sentencing discretion, this Court must give consideration to what if any weight it should give to the proposition that the two counts on which the convictions must stand were not isolated instances. In my opinion, if the two occasions of admitted sexual assault were isolated instances, a lower sentence would be appropriate than if the two assaults were part of a general course of conduct with respect to the daughter DW. 4 This Court has before it four sources of uncontested material. 5 First there is the guilty plea to the two counts involving SW, the sister of the relevant complainant. The circumstance that those convictions are to be quashed by reason of the fact that the prosecution was statute barred does not, of itself, necessarily affect the use of the pleas for sentencing purposes. 6 Secondly, by his counsel, the Applicant admitted that the two counts relating to DW were "representative" of other conduct. 7 Thirdly, uncontested statements by each of the sisters are before the Court. Those statements reveal a course of conduct of systematic violation of the Applicant's two young daughters over many years. 8 Fourthly, a report of a psychiatrist instructed on behalf of the Applicant was tendered. The report repeats admissions by the Applicant of a sexual relationship with both daughters. 9 The above does not constitute an admission by the Applicant of any, let alone each, specific allegation made by his daughters. However, there was an admission of systematic violation by him of both daughters from an early age, and extending over a substantial period. The Court is, in my opinion, entitled to act on the basis of the daughters' statements to the extent of this general admission. 10 No submission was made to this Court that the concession before the sentencing judge that the charges were "representative" was not based on instructions. The highest the factual case could be put was that the admissions in the record of interview were equivocal, particularly in view of the denials also contained therein. Nevertheless, in my opinion, the Applicant plainly admitted that the two counts now remaining in the indictment were part of a systematic course of abuse to which he had subjected his daughter DW. The issue is what, if any, is the scope of the permissible use of this admission for the purposes of sentencing. 11 Mr P Byrnes SC, who appeared for the Applicant with Ms Marty, submitted that sentencing on the basis that charges are "representative" of other conduct offends the principle that no-one be punished for offences for which there has not been a conviction, subject only to the long existing statutory regime, now found in Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999, for taking into account other matters, being matters with which the person has in fact been charged. 12 The Applicant invoked The Queen v De Simoni (1981) 147 CLR 383, and particularly the principle expressed at 389 in that case that "no one should be punished for an offence of which he has not been convicted". (This principle was affirmed most recently in R v Olbrich [1999] HCA 54, 73 ALJR 1550, 166 ALR 330 at [18]). 13 With respect to DW the Applicant's admission established that the two counts charged were "representative" or "sample" or "specimen" counts. Mr Byrne submitted that, conformably with the principle in De Simoni, this admission could not be taken into account on sentence in any respect. 14 The two respects in which the admission could be taken into account are first, as a matter of aggravation leading to an increased penalty and, secondly, as a matter which rebuts the possibility of mitigation with attendant leniency. In the present case, the trial judge applied only the latter. 15 In his remarks on sentence, Gibson DCJ indicated the manner in which he took into account the admission by the Applicant of the broader pattern of conduct. His Honour said: "The pleas were entered on the basis that they were representative of the conduct of the prisoner towards the two children. It must be remembered that this does not mean that he receives more because of that but it means that he is not being treated as if they were isolated incidents." 16 Mr Byrne submitted that the distinction between not increasing a sentence, and failing to grant leniency on account of the fact that the events as charged were not isolated incidents, should not be accepted to be a material distinction. He invoked the observations of Bray CJ in The Queen v Reiner (1974) 8 SASR 102 at 105, to the effect that this distinction "approaches the metaphysical". 17 The context of the specific observation by Bray CJ indicates that his Honour, nevertheless, did accept that the distinction was a relevant and permissible one. The full passage from Reiner at 105 is: "On the other hand the learned Judge was entitled to take into account the context and the surrounding circumstances of the crime and in particular it was permissible, relevant and important for him to know whether the act charged was an isolated offence or whether it was only, to use the metaphor often adopted, the tip of an iceberg. The surrounding circumstances of the crime may be taken into account in considering whether or not to extend leniency so as to reduce what would otherwise be a proper sentence but the commission of other crimes not asked to be taken into account under the procedure just mentioned cannot be used in order to increase what would otherwise be a proper sentence. As I have said on another occasion, the distinction between refraining from taking something off and adding something on when there is no fixed normal penalty may seem, in some cases, to approach the metaphysical. But it is a recognised and time honoured distinction for all that." 18 The reference in the middle of this passage to "the procedure just mentioned" is a reference to the immediately preceding paragraph in which Bray CJ said: "… the normal procedure adopted when it is desired that offences not charged should be taken into account, namely the handing up of a precise list of such offences signed by the accused, was not followed." 19 In New South Wales this procedure is now governed by Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999, for State offences, and s16BA of the Crimes Act 1914 (Cth), for Commonwealth offences. 20 The thrust of the submission on behalf of the Applicant was that taking into account other acts which constitute offences in and of themselves, should now be confined as a matter of judicial development to these statutory procedures. 21 The Applicant's submission would prohibit the use of admissions for the purposes of refusing leniency on the basis of relevant mitigating circumstances, (as Gibson DCJ expressly did in this case). 22 In this regard, the Applicant placed particular reliance on the decision of the Queensland Court of Appeal in R v D [1996] 1 Qd R 363, (reported sub nom R v Dales (1995) 80 A Crim R 50). The following passage at 404; 88 was relied on: "To withhold leniency by reference to offences of which a person being sentenced has not been convicted is, in our opinion, to punish that person for those offences as surely as if additional punishment were imposed by reference to those offences. A person who has only been convicted of an isolated offence is entitled to be punished as for an isolated offence, not on the basis that the only offence of which he or she has been convicted was not isolated but part of a pattern of conduct with which he or she has not been charged and of which he or she has not been convicted." 23 This conclusion was said to follow from an application of the principle expressed in De Simoni, and which the Queensland Court of Appeal elaborated upon in the following passage, immediately preceding the paragraph just quoted, at 403-404; (87-88): "Sentencing judges ought experience little difficulty in practice if there is unqualified adherence to the fundamental principles which emerge from the decisions of the High Court in De Simoni and subsequent cases. We will try to summarise those principles in a manner which should be adequate for most purposes. 1. Subject to the qualifications which follow: (a) a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender; (b) common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp. Merriman at 593, R. v T. at 455); and (c) an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration. 2. An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish: (a) a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted; (b) a more serious offence than the offence of which the person to be sentenced has been convicted; or (c) a 'circumstance of aggravation' (Code, s.1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed. 3. An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency, e.g., 'context' or the 'relationship' between the victim and offender, or to establish, for example, the offender's 'past conduct', 'character', 'reputation', or that the offence was not an 'isolated incident', etc." 24 The Queensland Court of Appeal has, subsequently, given further consideration to the propositions set out in point form in R v D. 25 In R v Wackerow [1988] 1 Qd R 197; (1996) 90 A Crim R 297 the Court had before it a case involving two charges of sexual assault against a young girl. During the trial the complainant gave evidence of sexual abuse on a number of other occasions. Byrne J at A Crim R 310 applied R v D and found that the trial judge had erred when "he took into account the uncharged incidents as 'relevant' in showing that the two offences were not 'isolated instances'." In the course of his judgment Pincus JA said at A Crim R 305-306: "… it seems to me clear that one could not, consistently with Dales, take into account on sentence uncharged sexual offences whose only connection with those charged is that they show that the offences charged were not isolated instances, or show that the offender had a propensity to engage in sexual acts with the complainant. I should add that in my view the approach to this question taken by the Court of Criminal Appeal in Cooksley [1982] Qd R 405 sub nom C (1982) 6 A Crim R 128, and in Jobson [1989] 2 Qd R 464 sub nom J (Jnr) (1989) 41 A Crim R 466 is irreconcilable with Dales. The same must be said of the principal judgment in Knox (unreported, Qld Ct of App, CA No 269 of 1993, 22 October 1993); see especially pp11 and 12 of the reasons of Davies JA and Thomas J. … Although the primary judge disclaimed any intention of imposing sentences which included extra time for the uncharged offences … that is what he did; his Honour plainly took the uncharged offences into account and equally plainly, not by way of mitigation. … Of course, a conviction of maintaining an unlawful relationship, under s229B of the Code, leads to sentencing for the maintaining of the relationship, not merely for the identified acts which the Crown must prove to satisfy the requirement in the second paragraph of s229B(1). The third principle set out in Dales makes it clear that in the present case the uncharged incidents, not falling within an exception recognised in the stated principles, could not be 'considered for any purpose'." 26 Pincus JA's reference to the particular provision in s229B of the Code is of significance, as I will show below. The charges in both D and Wackerow were under s210 - indecently dealing - not under s229B. 27 In R v Bettridge (Supreme Court of Queensland, Court of Appeal, 27 May 1998, unreported) Thomas J with whom McPherson and Davies JJA agreed, found that the trial judge had taken into account a "representative conduct" allegation contrary to the principles set out in R v D. However, his Honour said at 2-3: "At some stage it may be necessary for this Court to revisit R v D (above), some points of which are arguably inconsistent with other authorities both in this Court and in other jurisdictions." 28 The continued application of the entirety of the reasoning of R v D appears also to be questioned in the judgment of Pincus JA in R v Hile (Supreme Court of Queensland, Court of Appeal, 5 February 1999, unreported) when, at 6, his Honour said: "I do not, however, find it necessary to say any more about what I regard as the rather difficult subject of the effect of De Simoni , or the analysis of it in D." 29 In R v D the Court of Appeal of Queensland considered a number of authorities, including prior authorities in that State, in which a distinction of the character which it proceeded to reject, had been accepted. In the case of New South Wales, the Court of Appeal made particular reference to R v H (1980) 3 A Crim R 53 in which a distinction, similar to that already set out in the judgment of Bray CJ in Reiner, was accepted in this Court. 30 In R v H, Street CJ noted that admissions made by the Respondent in those proceedings in the course of a record of interview did suggest "prior sexual misconduct towards his daughter". In this regard, Street CJ said at 59: "The Crown is entitled to point to this as negativing such benefit as the respondent might otherwise have sought to obtain from the assertion that this was a wholly spur of the moment lapse, unprecedented by anything in any way irregular in his earlier conduct towards his daughter. But, in the light of the specific charge against him and the course of proceedings at the sentencing hearing, it is not correct to assert, as the Crown seeks to do on this appeal, that the Respondent is to be sentenced on the basis that this act of incest is the culmination of a series of similar offences and that the sentence should accordingly reflect what is said to be the criminality involved in prior acts of incest." 31 Moffit P at 62 said: "The only matter of importance is that the concession of earlier sexual interference was before his Honour. Of course, it was necessary and proper that it be, because it provided the context by which the criminal quality of the act of incest had to be judged and because, properly regarded, it ought to have led to the rejection of the claim made that it was some casual act in a moment of temptation, perhaps deliberately offered by the daughter to entrap him. If punishment is to be imposed for any past act of incest, this can only be done if the accused is charged with these offences either in specific or general terms, a matter which learned Crown counsel conceded … … However, the consequence of charging the respondent with the one act of incest did not require or justify his past relationship with his daughter and in particular his sexual molestation of her being ignored. What counsel for the respondent sought to do, and it seems did with some success, was to have his past conduct ignored and have the single act of incest evaluated as thought it was an isolated act. There was made an artificial case quite contrary to the truth. By ignoring the true position, the single act became the one mistake of a man who succumbed to a sudden temptation put before him by a daughter who, so it was put, may have offered the temptation deliberately to entrap him." 32 Begg J said at 74: "All the material relating to the respondent's past history cannot be considered in isolation without forming an opinion as to what in fact existed on a sexual basis during this period of time between the respondent and his daughter. To do so is completely artificial and would give a completely false picture of the respondent from a subjective point of view. It is one thing to say a man has never been guilty of any criminal act including incestuous acts upon a daughter over a long period of time and has lived an exemplary life, and another to say that this man had an external good reputation but was at the same time secretly debauching his young daughter. The former might well merit a large measure of leniency. The latter, very little. … I should emphasise that subjective material is admissible purely to be weighed in considering the question as to whether or not a sentence otherwise called for by reason of the actual facts of the crime should be dealt with less severely, that is, to what extent should leniency be extended." 33 Begg J had earlier said at 71: "It is trite law that when an indictment alleges one offence only, the accused pleads guilty to that offence only and can only be sentenced in respect of that offence. That is the position here: on this indictment he can only be sentenced for the act of incest therein charged. But when the court is considering what are commonly called the subjective elements of the case, namely the antecedents and good character of the accused, the effect of the crime upon other members of the family and of the disgrace visited upon the accused when he is found out, the extent to which leniency has to be applied, can only be gauged by seeing the real relationship between the respondent and the victim." 34 In R v Holyoak (1995) 82 A Crim R 502 Allen J, with whom Handley JA and Hulme J agreed, considered the law with respect to "representative charges". His Honour referred to the judgment of Bray CJ in Reiner and agreed with Bray CJ that the relevant distinction did "seem to approach the metaphysical". However, his Honour went on to say at 510: "The distinction is, however, one firmly established in the cases and it is the duty of a sentencing judge to apply it." 35 Allen J went on to refer to the decision in H and added at 511: "It is to be noted that in H this Court considered that it was the duty of the sentencing judge to have regard, in the way indicated, to H's admission in his record of interview of the earlier sexual activity notwithstanding that, at the sentencing hearing, his counsel stated that he denied that such earlier activity had occurred. It is implicit that H is authority that in sentencing for an isolated sexual offence it is the duty of the judge to receive and assess evidence of earlier acts of the same type committed by the offender upon the victim." 36 The existence of a distinction between taking into account admissions of other sexual offences either in their own right or as a matter of aggravation, on the one hand, and, such admissions rendering unavailable matters going to mitigation on the other hand, was also accepted in the judgment of Hunt CJ at CL (with whom Gleeson CJ and Hidden J agreed) in R v GWE (Supreme Court of NSW, Court of Criminal Appeal, 12 March 1997, unreported) at p17. 37 Furthermore, in R v H (1994) 74 A Crim R 41, Gleeson CJ with whom Mahoney JA and Sully J agreed, said at 43, in the context of a case in which the Applicant had pleaded guilty to ten sexual offences committed on his daughter and one against another young girl: "In cases of this kind it is common for the offender to be charged with particular offences which are representative of a larger number of offences of a similar kind. The evidence in the present case showed that sexual offences were routinely committed by the appellant against his daughter over practically the whole of her life. The appellant acknowledged that he deliberately set out, in effect, to make his own daughter his lover. The serious psychological harm which this caused the daughter is readily understandable, and, by the time she ran away from home, her years as the object of her father's desire for gratification had brought her to a state of serious emotional turmoil. The appellant came to be sentenced, not for his general course of conduct, but for the specific offences to which he pleaded guilty. Nevertheless, the background of conduct against which those specific offences occurred was a matter properly taken into account by the sentencing judge. These were not isolated offences." 38 In order to adopt the reasoning in R v D, this Court would have to refuse to follow these previous decisions. There is no warrant, in my opinion, to do so. The reasoning in R v D should not be adopted. 39 The Court of Appeal of the Supreme Court of Victoria considered the issue in R v SBL [1999] 1 VR 706. Phillips CJ made reference to R v D, Holyoak, Reiner and Godfrey (1993) 69 A Crim R 318. His Honour then referred to an earlier decision of the Court of Criminal Appeal of Victoria, R v Wright (Supreme Court of Victoria, Court of Criminal Appeal, 13 May 1974, unreported) which concerned an agreement by the offender that ten counts could be regarded as representative of some sixty-five charges. Phillips CJ, at 711, cited with approval from the judgment of the Court which said: "… there is nothing objectionable in the court having regard to the whole picture presented by the accused's conduct in determining the sentence appropriate to be passed upon the counts to which he has pleaded guilty". 40 Ormiston JA referred to the practice in Victoria of charging "representative" counts. His Honour also referred to earlier authorities including Reiner, Godfrey and Holyoak. His Honour drew a clear distinction between a case in which counts have been accepted to be representative by the accused from a case in which conviction has followed after a plea of not guilty. 41 At 721-722, Ormiston JA distinguished the Queensland decision of R v D. His Honour noted at 721 that the Queensland Court of Appeal was there dealing with a sentence which followed from a conviction upon trial and said: "… the emphasis was on the method to be adopted in making findings upon a sentencing hearing in relation to criminal offences for which the prisoner has not been charged and the extent to which they should be allowed to influence the sentence on the counts in fact charged. There is thus relatively little discussion of representative offences as such, although cases such as Reiner and Godfrey are discussed in extenso. Consequently it is not surprising that the conclusions reached by the court and expressed in three numbered paragraphs at 87-8 did not refer to the use of representative charges". 42 His Honour also went on to note, at 721-722, a further point of distinction between the situation in Queensland and that in Victoria, a distinction equally applicable in New South Wales. In the context of referring to the enunciated propositions in R v D, which I have quoted above, Ormiston JA said: "The restrictive nature of the propositions may in part be justified by reference to the existence in Queensland of an offence known as 'maintaining a sexual relationship with a child under sixteen years'." 43 The actual charges in R v D were indecently dealing with a child contrary to s210 of the Criminal Code. As Ormiston JA noted, the Queensland Criminal Code, in s229B, creates an offence of maintaining a sexual relationship with a child. The maximum penalty under s210 is ten years imprisonment. The maximum penalty under s229B is life imprisonment. The definition of "maintaining a relationship" in s229B(1) requires sexual acts to have occurred on three or more occasions. This, accordingly, directly invokes the reasoning in De Simoni, in that the course of conduct creates a more serious offence. R v D is distinguishable. With respect to the period after 1 January 2000 the position in New South Wales may, in this respect, be similar by reason of the enactment of s66EA of the Crimes Act 1900 (NSW) which creates a new offence for the situation in which a person has committed a sexual offence on a child on three or more separate occasions. 44 The proposition which the Applicant derives from R v D is that the element of asymmetry in sentencing - i.e. allowing a discount in certain circumstances, but not imposing a greater penalty in the absence of those circumstances - infringes the principle that a person should not be punished for a crime for which they have not been convicted. 45 I recall the observation of Fullagar J in Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1951-1952) 85 CLR 237 at 285 to resist: "… the temptation, which is so apt to assail us, to import a meretricious symmetry into the law." 46 In my opinion, the relevant part of the reasoning of the Queensland Court of Appeal in R v D is inconsistent with the subsequent decision of the High Court in Siganto v The Queen (1998) 194 CLR 656. That case was concerned with the effect of a plea of guilty. However, the asymmetry which the Queensland Court of Appeal identified in R v D, and dismissed as illogical, is also reflected in the case law with respect to a guilty plea, in a manner affirmed by the High Court in Siganto. 47 In a joint judgment, Gleeson CJ, Gummow, Hayne and Callinan JJ said at [22]: "A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence." 48 The Court went on to note at [23] that: "It is proper for a sentencing judge to observe, in a particular case, that circumstances which might otherwise attract leniency are absent. A trial judge's reference to the absence from the case of a matter of mitigation does not mean that the judge is indicating the presence of a circumstance of aggravation." 49 The trial judge in Siganto had applied the reasoning in an earlier decision of the Northern Territory Court of Criminal Appeal in which the Court had identified the distress occasioned by the complainant having to give evidence as a matter of aggravation (R v Martin (Supreme Court of the Northern Territory, Court of Criminal Appeal, 27 March 1995, unreported). The High Court held that this proposition should be rejected. It expressly approved the principle which was stated by the Full Court of the Supreme Court of Victoria in R v Gray [1977] VR 225 at 231 that: "It is impermissible to increase what is a proper sentence for the offence committed in order to mark the court's disapproval of the accused's having put the issues to proof or having presented a time-wasting or even scurrilous defence." 50 The High Court went on to say at [34]: "To some, it may appear a matter of semantics to distinguish between denying the existence of circumstances of mitigation and asserting the existence of circumstances of aggravation; and judicial statements intended as the former may sometimes be misunderstood as intending latter. However, the distinction can be important." 51 The High Court's reference to "semantics" is equivalent to Bray CJ's use of the phrase "approach the metaphysical" in Reiner. 52 In my opinion the decision of the High Court in Siganto is applicable by analogy to the situation of representative counts. The line of authority reflected in such cases as Reiner, H and Holyoak remains good law. 53 The reasoning in Siganto may also be inconsistent with the line of authority supporting the proposition that an admission of other offences may, in some circumstances, be taken into account by way of aggravation. These cases are not limited to the express statutory regime for taking such offences into account. They do require a clear admission. 54 In England the Court of Appeal considered the practice of specimen counts in R v Kidd [1998] 1 WLR 604 (reported sub nom R v Canavan [1998] 1 Cr App R 79). Lord Bingham CJ said at 607; 81-82: "A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see R v Anderson (Keith) [1978] AC 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit. It is said that the trial judge, in the light of the jury's verdict can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts. But this, as it was put in R v Hutchison [1972] 1 WLR 398, 400 is to 'deprive the appellant of his right to trial by jury in respect of the other alleged offences'. Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle." 55 The effect of the judgment of the Court of Appeal is that, absent an admission, the court should not take into account commission of other offences when sentencing for particular offences charged. The position is otherwise, it appears, in the case of an admission. 56 The reasoning of the Court of Appeal in Kidd is consistent with the reasoning of Brennan J in Kingswell v The Queen (1985) 159 CLR 264 at 288-289: "Even where the practice of charging a representative offence has been sanctioned, it has been held essential that the express and unequivocal assent of the offender be given before an offence for which he has not been convicted is taken into account: R v Anderson [1978] AC 964 at 977. Without the offender's assent it would be wrong to deprive him of his right to trial by jury for that offence: R v Huchison [1972] 1 WLR 398; (1972) 56 Cr App R 307; R v Reiner (1974) 8 SASR 102". 57 In SBL the Director of Public Prosecutions submitted that the whole of the circumstances, including the duration of the offending and the context of the acts which were not subject to specific charges, constituted an aggravating circumstance. However, counsel for the respondent offender in SBL did not challenge the use the Director of Public Prosecutions submitted could be made of these uncharged acts. 58 As Ormiston JA said at 724-725: "Here the facts relating to the seven counts made abundantly clear that there was both planning and deliberation of a kind characteristic of an admitted paedophile. Having regard to the fact that counsel for the respondent did not dispute the director's submissions as to the manner in which representative counts should in general be dealt with on sentence, it would perhaps be unwise to go further than to say that the whole of the circumstances relating to each count must be given proper effect and recognition for the purposes of imposing a just sentence, paying due regard to recognised principles of proportionality and totality". 59 I do not understand Ormiston JA, in these guarded observations, to be adopting the submissions of the Director. 60 However, Batt JA in SBL, expressed the opinion at 725 that the submission of the Director of Public Prosecutions to the effect that the fact that a charge is agreed to be "representative" constituted an aggravating circumstance, was "the better view". His Honour did not, however, regard this approach as punishing an offender for an offence for which he has not been charged, contrary to the principle expressed in, inter alia, De Simoni. Batt JA said at 726: "Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view that I have expressed about agreed representative counts, regard may in the present case be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone." 61 King CJ said in The Queen v Austin (1985) 121 LSJS 181 at 183 in a passage quoted with approval by Olsson J in R v Zahra [1998] SASC 7010 at [18]: "It is true that in imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation. Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree. The courts have to be particular cautious when the circumstances relied upon themselves may constitute crimes. Often the circumstances amount to crimes of a similar character to that charged and can more readily be taken into account as circumstances of aggravation. Likewise where the criminality of the aggravating circumstances is clearly subsidiary to as well as related to the criminality involved in the conduct constituting the crime charged. Special care, however, is required when the circumstances relied upon as circumstances of aggravation themselves constitute crimes or may constitute crimes of a different character or crimes against different victims. If a person is to be punished for conduct which is said to be criminal, generally speaking justice requires that he be charged with it and have the opportunity of defending himself. If he is not charged with it, generally speaking it should not be relied upon as a circumstance of aggravation of some other crime. This, of course, is not a hard and fast rule; everything must depend upon the particular circumstances and, as I have said, it is very much a matter of degree." 62 It may be that since King CJ delivered judgment in The Queen v Austin, the degree of flexibility his Honour referred to, has come to be no longer appropriate. 63 In my opinion, to use such matters as a circumstance of aggravation, if permissible at all, requires, at the least, sufficient particularisation so that the sentencing judge can tell with precision what range of conduct the charges admitted to be "representative" are in fact representative of. The extent, if any, to which an admission, other than in the context of the statutory procedure to which I have referred above, can be taken into account as a matter of aggravation, should be carefully confined. 64 As I understand the reasoning of Lord Bingham in Kidd and Brennan J in Kingswell, it relates only to admissions of specific charges which do not form part of an indictment. Any such admission must, at least, in my opinion, be referrable to a precise and properly particularised incident or incidents. It is, of course, a matter for the Crown to strike the proper balance between overloading an indictment, on the one hand, and, failing to reflect the alleged criminality by charging a limited range of counts, on the other hand. 65 It is highly desirable that the formal statutory procedures should be followed wherever the Crown seeks to rely on offences not contained within the indictment on the issue of penalty. As I have noted, those procedures exist both in the Crimes (Sentencing Procedure) Act 1999 for State offences and in s16BA of the Crimes Act 1914 (Cth) for Commonwealth offences. These procedures ensure that a proper particularisation is available, so that the range of conduct can be assessed with precision. 66 It is not, however, necessary, to express a concluded opinion about whether, and if so how, admissions of uncharged offences can be taken into account by way of aggravation, other than pursuant to an express statutory scheme. (In my opinion, the reasoning in Siganto suggests, by way of analogy, that such use is not permissible). The reason why it is not necessary to decide the issue in this case is because the admission on the part of the Applicant did not have the necessary degree of precision. 67 In the present case there was an express admission on the part of the Applicant that the particular counts with respect to daughter DW were "representative". That admission extended to an admission of the general nature of the relationship as set out in the uncontested evidence of DW. I do not, however, conclude that the admission extended to any, let alone each, of the specific allegations contained in DW's evidence. 68 An admission of this general character is appropriate to be taken into account for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence. It is not, however, in my opinion, appropriate to be taken into account as a circumstance of aggravation, if that be permissible at all. 69 Approaching the sentencing task in accordance with the above principles, I agree with the orders proposed by Ireland J.

Count 4: 78 For that he between 9 December, 1981 and 9 December, 1982 at Orange in the State of New South Wales did unlawfully and carnally know SMW, a girl then above the age of ten years and under the age of sixteen years, to wit between the age of fourteen and fifteen years. 79 In contravention of S 71 of the Crimes Act, 1900 which offence carried a maximum penalty of ten years penal servitude. 80 On 14 August, 1997 the applicant was sentenced as follows:- 81 As to count 1: Minimum term of 10 years penal servitude to commence 8 August, 1997 and to expire 7 August, 2007 with an additional term of 2 years to commence 8 August, 2007 and to expire on 7 August, 2009. 82 As to each of counts 2, 3 and 4: Concurrent fixed terms of 4 years penal servitude to commence 8 August, 1997 and to expire 7 August, 2001. 83 In passing sentence, the sentencing judge noted that the penalties for the offences against a child under the age of 10 years in the equivalent section of the Crimes Act had been reduced to 20 years, i.e. the offences in contravention of S 67 of the Crimes Act, 1900 whilst the maximum penalty in respect of the offences in contravention of S 71, or more correctly, its then current equivalent, remained at 10 years penal servitude (now, imprisonment). The sentencing of the applicant proceeded on the basis of the current maximum penalties at the time of sentence. 84 The facts which gave rise to the charges are not in dispute and are as follows. 85 In 1979 the family were living in Central Western New South Wales. SMW was then aged six years. On one occasion, just after her sixth birthday, the applicant called her into the bathroom where he was seated naked in the bath. He made her get into the bath and touched her on the breast. He took hold of her hand and placed it on his penis before SMW managed to get away. In 1982 the family had moved to another Central Western city. SMW was asleep in bed one night when the applicant got into bed with her, removed her pants and forced her to have vaginal intercourse with him. 86 On another occasion in 1982, SMW went away for a weekend with the applicant to assist him in droving sheep. Whilst asleep in her bunk in the caravan one evening, the applicant forcibly restrained her, removed her pyjama pants and raped her. She was screaming and crying throughout this encounter. As a result of this intercourse, SMW was bleeding the following day. Four months after this incident, SMW was again away with the applicant droving sheep when he pushed her onto a tarpaulin laid on the ground, removed her jeans and forcibly had vaginal intercourse with her. When SMW said that she would tell her mother, the applicant threatened to blow her brains out. SMW was terrified and did not mention the incident to anyone. This sexual abuse continued until SMW was aged sixteen and left home. 87 SMW and her twin sister DAW were born on 9 December, 1967. The basis upon which sentencing of the applicant proceeded was the statements made by the two complainants. 88 The statements of the complainants were unchallenged and the deponents were not cross-examined. 89 DAW stated that on one occasion when she was five years of age, the applicant took her in his truck to a remote area where he removed her underpants and struck her when she tried to resist. He forcefully penetrated her vaginally and ejaculated onto her stomach. This was not the first occasion and the applicant had done this to her previously on many occasions. This sexual abuse continued for the next ten years ranging in frequency from once a day to once a month. 90 On one occasion when DAW was aged seven and a half years, she came home from school and was changing out of her school uniform when the applicant approached her and made her take off her underwear. 91 He hit her across the face, pushed her onto the bed and forced her to have sexual intercourse with him. When she was nine years of age, the applicant called her over to where he was lying naked on the bed playing with his penis. He forced her to take off her clothes and get onto the bed next to him where he slapped her because she was screaming as he forcefully had sexual intercourse with her. On this occasion also, the applicant ejaculated over her stomach. DAW recalled that she used to cut her finger with a razor blade to smear blood on a sanitary pad, using this device to convince the applicant that she was menstruating when he approached her. When DAW was aged fourteen years, she threatened to tell the police of the sexual abuse. The applicant then stopped interfering with her sexually. 92 The applicant was interviewed by way of electronic record of interview. He initially denied having sexually abused his daughter DAW and said that she was lying. He later said that he had told his two sons S and G that he had sexual relations with DAW and SMW. He could not recall clearly as to whether or not he had a sexual relationship with DAW but said that it was possible. He admitted sexually abusing SMW. 93 The basis upon which the pleas of guilty were entered and upon which the learned sentencing judge proceeded to sentence was that the charges pleaded to were representative of a number of similar incidents which occurred over a period of time. Counsel for both the prosecution and the defence adopted this approach in their submissions on sentence. 94 The applicant's case in mitigation included the following. The applicant gave sworn evidence at the sentence proceedings expressing his remorse. A report from Dr Robert Strum was tendered. This report disclosed that the applicant's father died during the Second World War. He lived with his mother and step-father for some years until they separated. He then lived with his grandmother and rarely saw his mother. 95 Until the age of 8 years, the applicant's mother used to take him into bed with her where he would lie naked while she masturbated herself. When the applicant was aged 12, he had a sexual relationship with his aunt, who was then aged 15 years. He also had a sexual relationship with his half-sister, who was one and a half years younger than he was. 96 The applicant left home when he was twelve and a half years old and ultimately became a stockman and drover. The applicant started sexually abusing DAW in 1976 when she was aged 7 years. He commenced sexually abusing SMW when she was 14 years of age (these events related by the applicant conflict with those alleged by the complainants). The applicant expressed the belief that his sexual misbehaviour was in some way connected with his relationship with his mother. 97 Dr Strum expressed the opinion that the applicant does not suffer from a psychiatric illness "He has led a life which is perhaps not so uncommon in some parts of the country but which is certainly alien to most people." 98 In his interview with Dr Strum, the applicant demonstrated very little remorse. He did not exhibit a personality disorder and is not a paedophile who seeks out children at random. In the view of Dr Strum, the applicant was subjected to incest as a child and saw little wrong with incest with his own children. 99 Six grounds of appeal are proffered.

REGINA v J C W

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