The Sentence was Manifestly Excessive
50 It was put to counsel for the applicant during the course of argument that, despite the varied ways in which the grounds of appeal had been expressed, the applicant's strongest argument might reside in a submission, simply stated, that the sentence was excessive. Despite the force with which all the other arguments were put, counsel for the applicant ultimately embraced the suggestion put to him and made such a submission. For my part, I have had considerable reservation in accepting that the sentence was manifestly excessive. There are a number of reasons for this reservation. First, it is important to recall that a submission that a sentence is excessive or inadequate derives from the third kind of error identified in House v The King (1936) 55 CLR 499 at 505. For an error of this kind to occur it must appear, upon the facts, that the discretionary exercise is unreasonable or plainly unjust so as to lead an appellate court to infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. The basis of the review of the discretion is the ground that a substantial wrong has in fact occurred.
51 The joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) HCA 54 at paras (3-6) is a reminder that this is the basis on which an appellate court may interfere both in Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.
52 Secondly, it is always important for an appellate court dealing with an appeal of the present kind to bear in mind that the court should not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. As has been said, "the discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice": Lowndes v The Queen (1999) 195 CLR 665 at 671-672.
53 In the present case, argument that the sentence is manifestly excessive may be approached in one of two ways. The first is that, making due allowance for the seriousness of the offences, the personal circumstances of the applicant including his age and acknowledged rehabilitation, and the period which has elapsed since the offences were committed, the sentence should have been at the middle or lower end of the scale. The second approach is that the sentence might be regarded as excessive because his Honour did not, in express terms, categorise the status of the applicant's sexual activities in the hierarchy of delinquent sexual activity circumscribed by s 81 of the Crimes Act, nor did he analyse expressly his perception as to where these offences stood in that hierarchy, having regard to the maximum penalty then available. In other words, it might be concluded that the sentence was unreasonably at the higher end of the range because of the absence of a reasoned analysis of the nature of the sexual offences which occurred as against the range of other sexual activity prohibited by the section.
54 It will be seen that the first approach allows for a conclusion that the sentence should have been at the middle or lower end of the range. The second approach allows for a conclusion that the sentence might be, unreasonably, at the higher end of the range. Where then does the sentence stand in the range?
55 In my opinion, three points may be made. First, the statistical material for sentences imposed in the years 1993 to 1999 for s 81 offenders enables it to be said that the present sentence stands towards the higher end of sentences imposed for this offence in that period. Secondly, there are no statistics available to show the range of sentences which were imposed for similar offences in the period between 1966 and 1976. Thirdly, in percentage terms, the term of the present sentences represents a sentence which is a little over 50% of the maximum penalty.
56 It was not suggested by counsel for the applicant, as part of any argument presented during the appeal, that this was a case where anything other than a full time custodial sentence was required. The ultimate question then focuses on whether the sentence imposed, admittedly one at the higher end of the range, is so high as to be manifestly excessive.
57 The problem with the first approach, in my opinion, is that it is one largely based on intuition; and it is, moreover, one which does not, in my opinion, give sufficient weight to the regard the sentencing Judge was entitled to, and did take, to the facts of the matter before him. The problem with the second approach is that, whilst it quite accurately concludes that his Honour did not analyse the offences in the suggested manner, it also does not make sufficient allowance for the approach which his Honour did take, and in my opinion was entitled to take, to the facts before him. As I have already explained, there could be no doubt that his Honour was aware of the maximum penalty applicable to s 81 offences; nor could it be suggested that his Honour was unaware of the broad range of prohibited sexual activity covered by the section.
58 His Honour found, in terms, that these were "serious" offences. The four offences charged were conceded to be representative offences for a period of time that had as its outer limits the years 1966 and 1971. The description of the relationship between the young boy and the older man and the nature of the indecency, described as it was by the complainant in his statement to the police on 10 July 1997, demonstrated that these were not isolated incidents and that indeed, they occurred on a very regular basis. The applicant treated the complainant as his vehicle, in effect, for "masturbation on demand". The applicant was not entitled to leniency in that regard (R v JCW [2000] NSWCCA 209 at paras 30-38). The last offence which occurred when the complainant was fourteen or fifteen years of age was a particularly serious indecent assault.
59 These days the community has come to learn through the Courts, and the wider dissemination of information through the media, that thirty years ago and longer, quite disgraceful instances of sexual misconduct were not infrequently perpetrated by older men on young children and teenagers. The nature and extent of these types of sexual behaviour have become much more apparent over the last decade. It is important, in my opinion, that Courts, dealing with these types of older offences, do not become desensitised to descriptions of serious sexual abuse merely because, serious though they are, they are not as serious as sexual abuse of a much worse kind now known to have occurred. The irony of the submission in this case is that the applicant wishes this Court to accept an argument that Phelan DCJ fell into error by not applying sentencing standards of the 1970's. As the presiding Judge pointed out in argument, a Judge in the early 1970's would, more likely than not, have refused to accept that the particular offences which occurred in this case were offences at the lower end of the range or were offences which should attract a minimum penalty. Sentencing attitudes in those years would have plainly regarded the applicant's conduct as a serious departure from acceptable community standards.
60 The sentence imposed by Phelan DCJ reflected this recognition of the appellant's criminality. As I read his Honour's decision, this was the reason the sentence was chosen at the level it was. I am unable to agree that the "labelling" of offences is necessarily a satisfactory method of assessing culpability in cases of this kind. It is no doubt relevant to note that such conduct might extend to "fellatio" and "digital penetration" and be classified accordingly. The assessment of culpability, however, will require, as it did here, a broader approach which takes into account all the circumstances. The assessment of the subjective features was, in the same way, a matter to be considered by the sentencing Judge and given appropriate weight. I am unable to say that the ultimate sentencing discretion made by the sentencing Judge did not give appropriate weight to those circumstances. The sentence reflected the objective gravity of the offences, as his Honour saw them. I am unable to say that his Honour's assessment demonstrated appellable error. Had I been the sentencing Judge, I would, perhaps, have concluded that a total sentence in the order of two years would have been sufficient. This difference between my possible approach and that that of the sentencing Judge reflects, in my opinion, no more than the individual reaction of different Judges to a sentencing discretion involving the same factual situation. Such differences should not lead to the re-adjustment of sentences where no error of principle has been shown to exist.
61 In the end I have come to the conclusion that the sentences imposed by his Honour, although at the higher end of the scale, were not manifestly excessive. For the reasons I have explained, the sentences were not unreasonable or plainly unjust so as to satisfy me that a substantial wrong has occurred.
62 I would grant leave to appeal but dismiss the appeal.
63 HOWIE J: have had the benefit of reading in draft form the judgment of Whealy J. I adopt his statement of the facts and material before the sentencing judge and the basis upon which this Court has been asked to intervene. I agree that there is no merit in the particular grounds advanced on behalf of the applicant. However, I have reached a different view in respect of the general complaint that the sentence is manifestly excessive and, therefore, the disposition of the appeal. However, before dealing with that matter I wish to say something about the fourth ground of appeal.
64 It was submitted that the applicant was sentenced in accordance with current sentencing attitudes and principles rather than those applicable at the time of sentence. As Whealy J points out, there was no material presented to the Court to substantiate the claim that there was a difference between the way offences under s 81 were dealt with by the courts in the 1970s and how they are dealt with at the present time. Nor was there any material to substantiate the argument that courts generally now take a more severe attitude in sentencing child sexual assault offences than did courts at the time when the offender was committing the offences for which he was sentenced by Judge Phelan.
65 It may be the case that crimes similar to those committed by the applicant are now dealt with more harshly than they were at the time when the applicant committed his offences. If so, this would probably be a reflection of a change in the legislature's attitude to such conduct evidenced by a change in the nature of the offence proscribing that conduct and an increase in the maximum penalty applicable to such an offence; Sha (1988) 38 A Crim R 334 at 335.
66 Where there has been a change in the policy of the legislature to a particular type of criminal conduct, judicial attitudes to that conduct must respect the change of policy and reflect it in the sentences imposed on those who commit offences under the new statutory regime; R v Peel [1971] 1 NSWLR 247. But, notwithstanding changes in the structure and nature of offences over time, the fundamental approach adopted by the courts in determining the appropriate sentence that will reflect the legislature's policy remains the same.
67 Firstly, the court must have regard to the maximum penalty for the offence at the time when the crime was committed. This will indicate the policy of the legislature at the time the offence was committed: Oliver (1980) 7 A Crim R 174. It will prescribe the limit of the court's discretion, as the maximum penalty is intended for cases falling within the worst category of cases for which the penalty is prescribed: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; Ibbs v The Queen (1987) 163 CLR 447 at 451. Prima facie the maximum penalty indicates the seriousness of the offence: Gilson v The Queen (1991) 172 CLR 353 at 364.
68 Secondly, the court must consider where in the range of the conduct covered by the statutory offence, the particular criminal conduct committed by the offender falls: Baumer v The Queen (1988) 166 CLR 51 at 57; Ibbs, above, at 452. This will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie.
69 A pattern of sentencing, if available, will also indicate the range of appropriate sentence for the type of conduct under consideration. But this pattern will reflect "the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature" : Oliver , above, at 177
70 The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.
71 When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time.
72 In the present case the sentencing judge neither referred to the maximum penalty current at the time of the offences or the nature of the conduct which came within the scope of the offence with which the applicant was charged. Those two omissions would not normally indicate error on the part of the sentencing judge. But in a case such as this, where the statutory offence and the applicable maximum penalty relevant to the type of criminal conduct in which the offender engaged, had changed significantly since the date of offending, I believe that the sentencing judge should make reference to these two matters which were fundamental to a proper exercise of his sentencing discretion.
73 I believe that the failure of the sentencing judge to mention these two factors in this case is indicative of error, even if it were not itself an error sufficient to permit this court to interfere in the sentence imposed. This brings me to a consideration of whether the sentence was manifestly excessive. I acknowledge the force of Whealy J's comments on the limitation of this court's power to intervene in the exercise of a sentencing judge's discretion. But I am firmly of the view that his Honour's sentencing discretion must have miscarried in light of the sentence imposed upon the applicant.
74 At the time the applicant committed these offences the maximum penalty prescribed was 5 years penal servitude. As Whealy J points out, the maximum penalty for offences which would now apply to the type of conduct in which the applicant engaged is 7 years. Further, the range of conduct embraced by s 81 was wider than that covered by offences dealing with acts of indecency of the nature committed by the applicant under more recent statutory regimes. In my view the conduct committed by the applicant falls far short of the most serious type of conduct covered by s 81.
75 The available statistical material confirms my immediate impression that the overall sentence imposed upon the applicant is too high having regard to the nature of the conduct and the period of time which had elapsed since the commission of the offences. The sentence imposed falls in the upper range of sentences for offences under s 81 notwithstanding that I would expect sentences in this range to involve more serious conduct than that committed by the applicant. For example, offences including some form of penetration or offences by persons in positions of trust. On the statistical material provided to the court there was only one case in which an offender, who pleaded guilty, was sentenced to a longer minimum term than that which was imposed upon the applicant.
76 Further, the statistical information in relation to sentences imposed for offences contrary to s 61M(1) of the Crimes Act and which would now embrace conduct of a similar nature to that committed by the applicant, shows that again the sentence imposed upon the applicant is in the upper range. However, the maximum penalty prescribed under that section is 7 years and it should be expected that higher penalties would be imposed for offences involving the same type of conduct as that committed by the applicant when sentenced under that section.
77 Notwithstanding the young age of the complainant when the conduct first commenced, the period over which the offences occurred, and the fact that the applicant stood to be sentenced on the basis that the matters before the court were representative counts, the sentence imposed was in my view manifestly excessive having regard to the pleas of guilty and the delay between the commission of the offences and sentencing.
78 Although less significance is normally given to the impact of extensive delay in sentencing for child sexual assault offences, each case has to be considered according to its own facts and circumstances. There was a very gross delay in raising complaint. This was not a case where the delay can be attributed to the relationship between the applicant and the complainant, such as is the situation with members of the family or perhaps even teachers and pupils. The complainant was apparently significantly affected by seeing the applicant with young boys, and determined to have counselling and to report the matter to police. However, in the period of time between the commission of the offences and the complaint the applicant had married, brought up a child of his own, and worked until retirement. There was no further offending and the judge accepted that he was rehabilitated.
79 The sentencing judge spent much of his remarks dealing with the attitude of the applicant to the offences he had committed and which was disclosed both in his evidence in the sentencing proceedings and in a pre-sentence report. It can be acknowledged that there was a significant attempt by the applicant to excuse or minimise his criminal conduct. His Honour was rightly unimpressed by the applicant's assertion that he did not understand the wrongfulness of what he did. But in light of the pleas of guilty and his Honour's finding that the applicant was rehabilitated, this equivocation on the part of the applicant about his responsibility for his criminal conduct had less importance than might have been the case if the court had been concerned about the applicant's prospects of rehabilitation. In any event his Honour found that the applicant was remorseful.
80 I am not unmindful of the effects of the applicant's crimes upon the victim and the anguish that he must have suffered which caused him so long after the offences to seek counselling and to report the matter to police. But the applicant is principally to be punished for what he did and having due regard to the fact that, for whatever reason, the applicant chose not to complain about the matter for over 25 years.
81 In my opinion the appeal should be allowed and the sentence quashed. In a case such as this where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the court.
82 For the reasons given by Whealy J, the sentencing judge was right to find that there no special circumstances in this case. The applicant has now served a period of over twelve months in custody on protection. I believe that this is a sufficient period of imprisonment in the all the circumstances of this particular case and a sentence should be imposed which would bring about his immediate release. The sentence I propose is roughly in accordance with the proportions required by the Sentencing (Criminal Procedure Act) in the absence of special circumstances.
83 I would grant leave to appeal and allow the appeal. The sentences imposed upon the applicant should be quashed. In respect of each offence the applicant should be sentenced to 18 months imprisonment with a non parole period of 13 months 10 days. The sentence is to commence on 5 November 1999 and the non parole period is to expire on 14 December 2000 the date upon which the applicant is to be released to parole.