See also R v Shore (1992) 66 A Crim R 37 at 42; R v Watson [1999] NSWCCA 227 at [26].
16 It is plain that the relevant maximum sentence will be that prescribed in the legislation at the time of the commission of the offence. However, a more practical difficulty is the application of the sentencing range which existed at the relevant time. I agree with the sentencing judge that there are real difficulties in finding reliable statistical information in relation to a period of time that was long ago.
17 The Crown has now produced data from the Judicial Commission of NSW showing a relatively modest sample of broadly comparable cases. His Honour responded with some scepticism about a sample such as this because the collection of data only began in 1994.
18 The Crown says that, in relation to the first count, 58 per cent of offenders received a head sentence of greater than 4 years and 75 per cent received a minimum or fixed term equivalent to, or greater than, 2 years (being the non parole period in this case).
19 In relation to count 2, it is said that the survey shows that 57 per cent of all offenders in the sample received the same or a greater minimum term.
20 These statistics were in relation to sentences from October 1995 to September 2002.
21 However, the utility of this data requires an inference, that the Crown says should be drawn, that the majority of the sentences in the sample occurred prior to the abolition of remissions by the Sentencing Act 1989, a topic to which I shall return.
22 It is the relatively small sample, the time period involved, and the assumptions which have to be made, that seem to me to support the observation of the trial judge that there is a 'dearth of statistical information'. However, as his Honour noted, this Court has previously set a course to follow in these circumstances. His Honour referred to the observations of Howie J in Moon (at 497):
The nature of the criminal conduct proscribed by an offence, 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 involved in the offence committed. Whether the sentence to be imposed meets this criteria will be determined principally by consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.
When sentencing an offender for offences committed many years earlier, and where no sentencing range current for 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.
23 As Sully J said in MJR (at [107]):
In the absence of some acceptable statistical material this Court is constrained, in my opinion, to take the non-statistical approach which is described…by Howie J (Fitzgerald JA concurring) in his Honour's judgment in R v Moon .
24 I am not persuaded that his Honour erred in this approach given the absence of available and cogent material.
25 As was said by Sully and Ireland JJ in R v Hudson (Unreported, NSWCA, 30 July 1998) with the support of Spigelman CJ:
If there be error at all in the present case, it must be found in the terms of the sentences actually imposed. That is to say, it must be established by the applicant that the terms of the sentences demonstrate in and by themselves that the sentencing discretion miscarried.
26 In that case, and I emphasise that the circumstances are different from the present although it did involve a sexual assault by a father against his daughter, it was held that the sentence imposed, namely an aggregate sentence of 5 years, was well within the proper exercise of discretion available to the sentencing judge.
27 It is also submitted that the sentencing judge failed to take proper account of the significance of the abolition of remissions which occurred in 1989. Those remissions, generally, in relation to first offenders, led to the result that there would often be an administrative reduction of one third of the head sentence, with consequential changes to the non parole period. In addition there were other, minor, remissions of an anachronistic kind relating to the visit of the Queen or for 'strikes' in the prison system.
28 One difficulty with this argument is that the sentencing judge expressly said that he had given consideration to this factor. His Honour said:
In determining the appropriate sentence range, I have taken into account under the Sentencing Act 1989 the remissions available at that time. (RS at 13)
29 It is sufficiently clear that his Honour was having regard to the abolition of remissions effected in 1989.
30 Another difficulty facing the argument is the controversy which has occurred as to whether the sentencing court should take into account the abolition of remissions at all.
31 In R v Moon, Whealy J said, when referring to R v Maclay (1990) 46 A Crim R 340, at [3]:
The Court specifically rejected the general argument urged upon it that offenders who had committed offences prior to the commencement of the Sentencing Act, but who came to be sentenced after that date, were entitled to ask the sentencing court to take into account the remission system on the basis of fairness to the offender.
32 However, his Honour noted in Moon that the Court did not rule out the possibility that, in a particular case, there might arise the need for a result of the kind for which the appellant had contended in Maclay. This issue, therefore, remains to be decided, but not, in my view, by the Court in the present case.
33 The combination of the doubtful relevance of this point to the sentencing process together with the fact that the trial judge specifically adverted to it and indicated in a broad way that he would give it some weight in the balancing process leads me to the view that the applicant cannot succeed on this aspect of his argument.
34 It was submitted that there was a misapplication of the method of sentencing authoritatively set out by the High Court of Australia in Pearce v The Queen (1998) 194 CLR 610. The High Court there contemplated that appropriate sentences should be determined for each count individually before considerations of concurrence, cumulation and totality.
35 The applicant submits that the sentencing judge applied a 'backward' application of Pearce by first stating the total sentence and then fixing each individual sentence for each offence.
36 It is true that Pearce stands for the proposition that individual sentences should be expressed for each count, however that was in a context when the sentencing judge had regard only to the total effective sentence that was to be imposed on the offender. That is not this case.
37 The position is that the sentencing judge did fix specified sentences for each count. Also, his Honour bore in mind the decision of Pearce and referred to it. It is true that he prescribed the total sentence first and then went on to specify the particular terms in relation to each count. However, this seems to me to be more a matter of form than substance. It seems to me only a matter of the precise order in which the reasoning is expressed.
38 It is clear that the sentencing judge properly understood what was determined in Pearce. He said:
I am required to impose an appropriate sentence in relation to each offence before considering totality and whether I should propose cumulative or concurrent sentences. Each offence justifies a considerable prison sentence, although not in the upper range. To impose upon the prisoner the sentence which each offence would warrant would result in a crushing prison term which will be unduly harsh.
39 Thus, his Honour's reasoning was clear, despite the fact that in terms of chronology, he indicated the total sentence before specifying the individual sentences.
40 A further ground of appeal puts the proposition that the sentencing judge failed to take into account the delay in reporting the offences when fixing the sentence. However, it is obvious that his Honour knew of such delay and it is obvious, in my opinion, that the sexual abuse of family members, particularly by a father of his daughter, with the consequential aggravating features, trauma, and embarrassment renders a delay significantly less consequential than in other cases of sexual assault. The weight to be afforded to such a delay could only be minimal.
41 As Howie J said in Moon (at [78]) that case was not one:
…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…
42 The sentencing judge did find that the applicant had done nothing about the offences until his daughter had told her husband of them in August 2000.
43 In DJS [2001] NSWCCA 189, Sully J considered an offence 'strikingly stale' and this is a matter relied upon by the applicant in the present case. That is, his Honour thought that the facts called for consideration of, inter alia, what exactly had caused the complainant to come forward some 20 years after the date of the alleged offence.
44 However, it is clear that those observations are grounded in the facts and circumstances of that case and, in my opinion, the case is distinguishable. That case involved an isolated instance of abuse not by a father but by a fourteen year old brother in relation to his 8 year old sister. Long delay is not unusual in relation to allegations of child sexual abuse and it is difficult to see that the applicant has suffered any particular detriment as a result of that delay sufficient to amount to an entitlement for the reduction of his sentence.
45 In these circumstances, I cannot form the view that the sentencing judge has fallen into any error.
46 The next ground of appeal is that the sentencing judge erred in failing to take into account the apparent fact that the applicant was himself a victim of sexual abuse. Reliance was placed on this matter by the defence, and it is true that in argument the sentencing judge said:
I don't think it can be taken into consideration at all. (T at 28)
47 However, in his final remarks, the judge said:
I accept…this is a factor that I can consider in considering the moral culpability of the prisoner for the act he committed.
48 This conclusion seems to be in reference to a report of a psychologist which was tendered as an exhibit on the sentencing proceedings. Thus, in the difficult balancing process required to determine the ultimate sentence, the prior abuse of the applicant was given some weight by the sentencing judge and I do not see any error in principle in relation to this ground.
49 Another ground suggests, in a global sense, that lesser sentences were warranted in law. The applicant refers to all of the objective and subjective features of the case. There is some substance in the applicant's submission that it would be wrong to reach an overall sentencing result which might be more reflective of current community attitudes and sentencing patterns than those prevailing at the time of the commission of the offences.
50 It is true also that there are significant mitigating factors in favour of the applicant: an apology to the victim; the loss of family contact as a result of the revelation of the offending behaviour; the absence of offences since 1991; attendance at counselling; acceptance of fault; and the plea of guilty which avoided the difficult circumstance of the complainant being required to give evidence at trial.
51 However, the sentencing judge in this case has carefully considered all of these relevant factors. He gave a discount of 25 per cent for the utilitarian value of an early plea of guilty. The applicant's prospects for rehabilitation were taken into account and given some weight. Indeed, the sentencing judge regarded the attempts made by the applicant at rehabilitation as a 'special circumstance'.
52 No one suggests that there should be anything other than a full time custodial sentence. This seems to me to be a correct approach by both parties.
53 The applicant also relies on De Simoni v The Queen (1981) 147 CLR 383. It is conceded that the argument could only affect the 1991 count. The remarks about breach of trust given as a result of the family relationship seem to me to be unexceptionable. Defence counsel did not cavil with his Honour's approach expressed clearly in argument. I do not believe that the trial judge wrongly relied upon circumstances of aggravation contemplated by s 61J Crimes (Child Amendment) Act 1985, which identified a circumstance of aggravation where the victim is 'under the authority' of the offender, with a maximum penalty of 20 years.
54 The Crown did not advance a charge on this basis and nor did his Honour rely on it. The notion of a breach of trust is qualitatively different.
55 Thus, his Honour, after taking into account what seems to have been all the relevant considerations exercised the always difficult sentencing discretion. Viewing the matter in totality, I am unable to see any adequate basis for this Court to interfere in that discretion. The conclusions reached on the sentence seem to me to have been reasonably available to the sentencing judge who conscientiously considered the matter. It may be that the sentence is at the high end of the range, particularly having regard to the sentencing environment at the time the offences were committed. Nevertheless, the conclusions reached seem to have been reasonably open.
56 In these circumstances, and in deference to the argument properly raised by the appellant, I propose that leave be granted but that the appeal be dismissed.
57 Grove J: I agree.
58 The order of the Court, therefore, will be as proposed by Shaw J.