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[2003] NSWCCA 178
respondent. Leave to appeal granted; appeal dismissed.
The Court of Criminal Appeal did not change Slater's sentence. It accepted that courts should take account of the sentencing approach in force when an old offence was committed, especially if later sentencing practice became harsher. But the available historical statistics were not reliable enough to prove a precise sentencing range, so the sentencing judge could assess the seriousness of the conduct against the penalties that applied at the time. The Court also found no demonstrated error in the judge's treatment of the guilty plea, delay, rehabilitation, prior abuse, or the individual sentences. Leave to appeal was granted, but the appeal was dismissed.
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2,133 words · generated 29/09/2026
In Regina v Roger Slater [2003] NSWCCA 178, the New South Wales Court of Criminal Appeal considered an application for leave to appeal against sentence. Slater had pleaded guilty to two offences under s 61D of the (NSW). The first concerned alleged sexual intercourse with his daughter without her consent between 5 December 1981 and 25 February 1982, when she was 12. The second concerned alleged sexual intercourse without her consent between 20 February and 16 March 1991, when she was 21 ([2]-[3]).
1 cited instrument linked from this judgment.
Four similar offences were also placed on a form 1 for sentencing consideration ([4]). The six incidents began when the complainant was 12, and the final incident occurred when she was 21. The Court described the conduct as spanning the complainant's adolescence, while noting it had not been characterised as a course of conduct ([5]). It considered the offending very serious and recorded that the victim impact statement described significant psychological consequences over a long period ([6]).
Sorby DCJ imposed a four-year sentence on count 1, with a two-year non-parole period, and a fixed term of two years and six months on count 2. The terms were partly concurrent and partly cumulative. The resulting effective sentence was five years' imprisonment, with three years to be served as the non-parole period ([7]-[9]).
The appeal raised several grounds: whether historical sentencing practice had been properly considered, whether the abolition of remissions mattered, whether the judge applied Pearce v The Queen correctly, how delay was treated, whether Slater's own history of sexual abuse was considered, and whether the overall result was excessive. The Court, constituted by Grove J and Shaw J, granted leave but dismissed the appeal. Shaw J gave the reasons, and Grove J agreed ([56]-[58]).
The central historical-sentencing issue was not whether the law at the time of offending mattered. The Court accepted that an offender should not be sentenced without regard to an earlier sentencing practice where sentencing policy has subsequently moved adversely ([13]-[15]). The difficulty was evidential: the offences dated from 1981 and 1991, while the sentencing exercise took place in 2002.
The Crown produced Judicial Commission data for broadly comparable cases from October 1995 to September 2002. The sentencing judge viewed the sample sceptically because systematic data collection began only in 1994. The statistics also required assumptions about whether many sentences pre-dated abolition of remissions ([16]-[21]). The Court agreed that the small sample, the time gap, and the assumptions supported the conclusion that reliable statistical information was lacking ([22]-[24]).
In those circumstances, Shaw J adopted the approach described in R v Moon: examine the nature of the criminal conduct and the maximum penalty applicable, and determine objective seriousness alongside subjective factors and other sentencing considerations. The Court considered that this approach could effectively align the sentence with the legislative policy and sentencing approach current when the offending occurred ([22]-[24]). It was not a finding that historical sentencing practice is irrelevant. Rather, the Court found that the material in this case did not provide a sound basis for identifying a precise historical range.
The remission argument did not change the result. The sentencing judge said he had taken account of remissions available at the relevant time ([28]-[29]). The judgment records that R v Maclay rejected a general claim that offenders sentenced after the Sentencing Act 1989 could demand the former remission system on fairness grounds. Moon nevertheless did not exclude a different result in a particular case ([31]-[32]). Shaw J expressly left that broader question open, finding it unnecessary to decide here ([32]-[33]).
The Pearce ground focused on the order of the sentencing remarks. The judge stated the total sentence before specifying the sentence for each count. The Court distinguished that presentation from a substantive failure to determine an appropriate sentence for each offence. The judge did specify sentences and said he had to sentence each offence before considering totality and whether terms should be concurrent or cumulative ([36]-[39]). Shaw J therefore treated the sequence as a matter of form, not substance.
The Court also rejected the delay argument. It noted that delay in reporting family sexual abuse could be less significant than delay in other types of sexual assault, because the relationship between offender and complainant may help explain it ([40]-[42]). It distinguished R v DJS, which involved an isolated incident between siblings, rather than a father and daughter, and found no particular detriment from the delay that justified a reduction in this case ([43]-[45]).
Finally, Shaw J considered the mitigating circumstances and the overall sentencing discretion. These included an apology, loss of family contact, no offences since 1991, counselling, acceptance of fault, rehabilitation efforts, and the guilty plea, which avoided the complainant giving evidence at trial ([49]-[52]). The sentencing judge had given a 25 per cent discount for the utilitarian value of the plea and treated rehabilitation efforts as a special circumstance ([51]). The Court concluded that the sentence was reasonably open, even if it might be at the high end of the range ([55]).
This judgment did not purport to establish a new general sentencing code. Its main contribution is its application of existing principles to historic offending where a reliable sentencing range cannot be reconstructed from available data.
The judgment treats the time of offending as significant in two related ways. First, the maximum penalty is the one prescribed by legislation at the time the offence was committed ([11], [16]). Second, sentencing practice at that time is relevant where subsequent practice has moved adversely to the offender ([13]-[15]). The Court did not say that the sentencing judge must produce a numerical historical range in every old case. It accepted that, where suitable material is absent, a court can use the objective-seriousness method described in Moon ([22]-[24]).
On remissions, the judgment does not resolve the law. It recounts the rejection in Maclay of a general fairness-based claim and notes that Moon left open the possibility of a particular case requiring a different result. The court expressly declined to decide that question in Slater's appeal ([31]-[33]). It would therefore be inaccurate to read Slater as either approving or rejecting a general rule that remissions must be incorporated into a later sentence for historic offending.
On multiple counts, the judgment applies Pearce in substance. The reasons must show that the court has fixed an appropriate sentence for each offence and considered how the terms operate together. The order in which reasons are expressed is not, without more, decisive ([34]-[39]). This is a fact-sensitive application, not a statement that the order of sentencing reasons can never matter.
The discussion of reporting delay is similarly contextual. The Court did not establish a universal rule that delay in child sexual-abuse cases has little or no sentencing significance. It considered this complainant's familial relationship with the offender and the circumstances of the offending, and distinguished the different facts of DJS ([40]-[45]).
At [22], the judgment adopts the Moon approach for cases where no contemporary sentencing range can be established. In plain English, the court should assess how serious the conduct was, compare it with the maximum penalty that applied at the time, and consider the offender's circumstances and the other relevant sentencing factors. The passage does not make statistics irrelevant; the judgment first considered the Crown's statistical material and explained why it was not sufficiently reliable ([17]-[24]).
At [24], Shaw J states: “I am not persuaded that his Honour erred in this approach given the absence of available and cogent material.” This is a case-specific conclusion. It reflects the inadequacy of the evidence available to establish the historic range, not a general exemption from considering relevant sentencing practice.
At [37], the Court says the judge's sequence was “more a matter of form than substance”. In plain English, the judge's reasons mentioned the overall sentence first, but they still addressed sentences for each count and the relationship between them. The Court read the reasons as a whole, including the sentencing judge's express statement at [38] that individual sentences had to be considered before totality.
At [40], Shaw J observes that, in the circumstances, the weight of delay “could only be minimal”. The following paragraphs explain the basis: the judge knew of the delay, the case involved a father and daughter, and the Court considered that relationship relevant to why reporting may be delayed ([40]-[44]). This passage should be read as an assessment of those circumstances, not as a fixed rule for every delayed report.
At [55], the Court concludes that the sentence was reasonably open to the sentencing judge, despite possibly being at the high end of the range. The significance is appellate restraint: the question was whether an adequate basis for interference had been established, not whether the Court would necessarily have imposed the same sentence at first instance.
The judgment is most directly relevant where an offender is sentenced many years after the offences and argues that sentencing practice has become more severe since the offending. The court should identify the penalty applicable at the time and consider historical sentencing practice, but the case illustrates that a precise range may be impossible to establish if the available statistics are limited or require substantial assumptions ([11]-[24]).
It is also relevant where a sentence involves multiple counts and an appellant argues that the judge reversed the Pearce sequence. The inquiry shown in this case is substantive: did the sentencing judge impose or identify a sentence for each count and genuinely consider concurrency, cumulation and totality? A presentation that starts with the total result did not, on these facts, prove error ([34]-[39]).
A further relevant pattern is delayed reporting of sexual abuse within a family. The judgment indicates that the relationship and circumstances may bear on the weight given to delay, and that a different case involving an isolated incident and different family roles may be distinguishable ([40]-[45]). It does not supply a universal formula for quantifying delay's effect.
Finally, Slater is relevant to an argument that an offender's own history of abuse was ignored. The Court examined the sentencing remarks as a whole: despite an initial statement during argument, the final remarks accepted that the history could bear on moral culpability ([46]-[48]). It also illustrates consideration of guilty pleas and rehabilitation in the overall sentencing synthesis ([49]-[52]).
The supplied judgment contains no decisions after 1 July 2003 and therefore does not establish how later courts treated Slater. Its case list and reasons refer to authorities that pre-date it, including MJR, Moon, Maclay, Pearce, DJS, Shore, Watson and Hudson. Those authorities are discussed or applied in the judgment, but that does not provide evidence of later treatment of Slater itself.
For research purposes, the judgment supports only a description of its own reasoning and disposition. It would require later judgments or a case-treatment source to determine whether later courts followed, distinguished, explained or limited Slater. No such material is provided here, so no later-treatment claim can safely be made.
The clearest issue expressly left open is whether abolition of remissions can require a different sentencing result in a particular case involving old offending. Shaw J noted the competing history of Maclay and Moon but said the point did not need to be decided in Slater's appeal ([30]-[33]). The judgment therefore supplies no final answer to that issue.
The decision also does not define how much evidence is enough to establish a reliable historical sentencing range. It identifies factors undermining the statistics before it: limited sample size, a period beginning in 1995, and assumptions about the timing and effect of remissions ([16]-[22]). It does not prescribe a minimum sample size, an acceptable statistical method, or a method for resolving differences between historical and later sentencing data.
The reasoning on delay is confined to the facts discussed. The Court distinguished an isolated sibling-abuse case from prolonged offending by a father against his daughter, but did not set out a comprehensive framework for assessing delay, its explanation, or any demonstrated forensic or personal detriment ([40]-[45]).
Nor does the judgment determine that the sentence was the only appropriate sentence. It says the conclusions were reasonably open and that there was no adequate basis for appellate intervention, while acknowledging the sentence might be at the high end of the range ([55]). That distinction matters: the decision resolves the appeal on the record before the Court, rather than establishing a definitive sentencing tariff for similar offences.
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CITATION : Regina v Roger SLATER [2003] NSWCCA 178 revised - 15/07/2003 HEARING DATE(S) : 01/07/03 JUDGMENT DATE : 1 July 2003
JUDGMENT OF : Grove J at 57; Shaw J at 1 DECISION : (1) Leave to appeal granted; (2) Appeal dismissed.
CATCHWORDS : CRIMINAL LAW - appeal against sentence - range of sentences at time of commission of offences - delay - no question of principle LEGISLATION CITED : Crimes Act 1900; Crimes (Child Assault) Amendment Act 1985; De Simoni v The Queen (1981) 147 CLR 383; Pearce v The Queen (1998) 194 CLR 610; R v DJS [2001] NSWCCA 189; R v Hudson (Unreported, NSWCCA, 30 July 1998); CASES CITED : R v Maclay (1990) 46 A Crim R 340; R v MJR (2002) 54 NSWLR 368; R v Moon (2000) 117 A Crim R 497; R v Shore (1992) 66 A Crim R 37; R v Watson [1999] NSWCCA 227; Regina (NSW)
Roger SLATER FILE NUMBER(S) : CCA 60097/03 COUNSEL : G Bashir - Appellant D Howard - Crown SOLICITORS : S O'Connor - Crown
LOWER COURT District Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER :
IN THE COURT OF CRIMINAL APPEAL 60097 of 2003
Grove J Shaw J
1 July 2003 Regina v Roger SLATER Judgment 1 Shaw J: This is an application for leave to appeal against the severity of a sentence imposed on the applicant (Roger Slater) as a result of a plea of guilty, by Sorby DCJ, on 20 September 2002. 2 The plea was in relation to two charges pursuant to s 61D of the Crimes Act 1900 (NSW). The first count raised an allegation that the applicant, between 5 December 1981 and 25 February 1982, had sexual intercourse with his daughter without her consent, when she was 12 years of age. 3 The second count alleged that between 20 February 1991 and 16 March 1991 the applicant had sexual intercourse with his daughter without her consent. 4 The sentencing judge was also asked to take into account four additional, similar offences specified on the form 1. 5 The applicant's abusive and reprehensible behaviour in relation to his daughter began when she was 12 years of age and the last of the six incidents that were dealt with occurred when she was 21. As the Crown submitted, the unlawful conduct thus spanned the entire period of the complainant's adolescence, although it was not characterised as a course of conduct. 6 On any analysis these were very serious offences and, according to the victim impact statement placed before the sentencing judge, resulted in significant psychological consequences for the complainant over a long period of time. 7 The sentencing judge provided detailed and considered remarks on sentence which resulted in a determination that the applicant serve, in relation to count 1, and taking into account the matters on the form 1, imprisonment for four years commencing on 20 September 2003 and expiring on 19 September 2007, with a non-parole period of two years expiring on 19 September 2005. 8 In relation to count 2 it was determined that the applicant should serve a period of imprisonment for a fixed term of two years and 6 months commencing on 20 September 2002 and expiring 19 March 2005, with the sentences being served partly concurrently and partly cumulatively. 9 The overall result was, in effect, a sentence of 5 years imprisonment with 3 years to be served as the non parole period. 10 It is in these general circumstances that the applicant claims that errors have been made in the sentencing process and that the total result is excessively severe. 11 The sentences of the applicant have to seen against the maximum sentences prescribed by the legislature for the offences at the relevant times when they were committed. In relation to the first count, that is, when the complainant was 12, the maximum penalty was 10 years. In relation to the second count, when the complainant was 21, the maximum penalty was 8 years. In relation to the matters on the form 1, taken into account on the first count, the maximum penalties, had they been separate counts, were, for the first matter, 10 years, because the complainant was aged 13 years; for the second, 7 years, because the complainant was aged 16 years; for the third, 7 years, the complainant then being 16 years; and the fourth, 7 years, the complainant then being 17 years of age.
12 The first ground of appeal argued, with considerable ability by Ms Bashir, counsel for the applicant, is that the sentencing judge failed to adequately take into account the established sentencing practice and range at the time of the commission of the offences in determining an appropriate sentence. 13 Generally, though not without some practical difficulty, it is a correct principle that an accused person is entitled to be sentenced in accordance with sentencing policy at the time of the commission of the offences in an environment where sentencing policy had moved adversely to the accused: MJR (2002) 54 NSWLR 368. 14 The sentencing judge accepted that approach, as is demonstrated by his citation of Howie J in R v Moon (2000) 117 A Crim R 497 at 511 to the effect that the applicant must be sentenced in accordance with: …the policy of the legislature current at the time and consistently with the approach adopted by the sentencing courts at that time. (RS at 2) 15 Spigelman CJ said in MJR (at [31]) that a sentencing judge was not entitled to: …refuse to take into account the sentencing practice at the date of the commission of the offence where the sentencing practice has moved adversely to an offender.
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.
Last Modified: 07/15/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Regina
Roger SLATER
Leave to appeal granted; appeal dismissed.