1 LEVINE J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the Sydney District Court by his Honour Judge Gibson Q.C. on 18 September 1998.
2 The applicant pleaded guilty to 11 counts of indecently assaulting a female under the age of 16 years pursuant to the then applicable section of the Crimes Act, namely s 76. The maximum sentence under that section was penal servitude for 5 years until the Crimes Act was amended (Act No. 50 of 1974) which thereafter provided a maximum penalty of 6 years in respect of offences after 2 August 1974.
3 There were 5 counts in the indictment relating to KP (the applicant's step-daughter) and to events which occurred in 1976 and 1977 when she was aged approximately 13 years. In relation to the first count (involving the touching of the complainant's breasts through her clothes), the applicant was sentenced to a fixed term of 2 years to commence on 8 September 1998.
4 In relation to count 2 (digital penetration), the applicant was sentenced to a fixed term of imprisonment of 12 months commencing 8 September 1998.
5 In relation to count 3 (the applicant rubbed himself against her and ejaculated), a concurrent 12 months fixed term was imposed.
6 In relation to count 4 (vaginal touching and placing her hand on an erect penis), the sentence was the same, namely a concurrent fixed term of 12 months.
7 In relation to count 6 (count 5 was abandoned), the conduct involved digital penetration and a concurrent 12 month fixed term sentence was imposed.
8 There were four counts in the indictment relating to SF (the applicant's natural daughter) and conduct which occurred between May 1964 and July 1967 at which time the complainant was aged between 9 and 11 years.
9 Count 7 involved the applicant thrusting his penis against her buttocks whilst clothed, conduct said frequently to have occurred over the next twelve months. In respect of this count the applicant was sentenced to a fixed term of 2 years to commence on 8 September 2000, that is cumulative to the fixed term of 2 years imposed in respect of the first count relating to KP.
10 Count 8 involving SF involved the applicant touching the outside of the complainant's vagina. In respect of this count the applicant was sentenced to a fixed term of 12 months to commence on 8 September 1998.
11 Count 9 involved digital penetration and the sentence imposed was a concurrent fixed term of 12 months.
12 The tenth count involved the applicant placing the complainant's hand on his erect penis and masturbating him. For this offence a concurrent fixed term of 12 months was imposed.
13 There were two counts relating to SP (the applicant's natural daughter) in relation to events occurring between December 1969 and January 1970. The complainant was aged 11.
14 The eleventh count involving SP was concerned with the applicant's rubbing her right nipple. In relation to this eleventh count the applicant was sentenced to a minimum term of two years commencing on 8 September 2002 and expiring on 7 September 2004 and an additional term commencing on 8 September 2004. This, it will be seen, was further cumulative to the fixed terms of 2 years imposed in respect of count 1 (KP) and count 7, imposed in respect to SF.
15 Count 12 involving CP was concerned with the rubbing of her breast and in respect of this offence the sentence imposed was a concurrent fixed term of 12 months commencing on 8 September 1998.
16 It thus can be seen that in relation to the first count involving the first and second complainants (counts 1 and 7) his Honour imposed cumulative 2 year fixed terms and in relation to the first count involving the third complainant (count 11) a cumulative sentence of 4 years made up of a minimum term of 2 years and an additional term of 2 years. In relation to all other counts in respect to each complainant his Honour imposed a fixed term of 12 months to date from 8 September 1998.
17 The effective head sentence was 6 years with an additional term of 2 years.
18 The applicant, born on 16 August 1933, pleaded guilty on 8 September 1998. There was evidence before his Honour pointing to their having been some disclosure to the applicant's then wife in 1972 in relation to the charges involving SF and SP and in about 1972 in relation to KP. The applicant at the time of his arrest was living as a single man on the Sunshine Coast in Queensland. He had retired in 1988 after lengthy employment with John Fairfax & Sons Pty Limited, had held a responsible position and was otherwise a man of good character, he having no prior convictions. Evidence was called from the applicant that the realisation of what he had done began in the early 1990s at the time of the breakdown of his second marriage. His Honour found that as a result of being charged the applicant had certainly attempted to rehabilitate himself, but accepted that the applicant still had a long way to go to understand the effect his conduct has had on his daughters and step-daughter.
19 In his Remarks on Sentence his Honour took into account that the applicant had admitted his guilt and had shown remorse for his conduct. His Honour also took into account the Pre-Sentence Report prepared by the Queensland Corrections in which at paragraph 2.06 the following appears:
"Mr Watson does acknowledge and accept the nature and extent of the offending behaviour. There appears to have been a planned and calculated pattern to the offending behaviour over many years. Mr Watson acknowledges the behaviour offered him convenient sexual gratification. The counsellor, Mr Brinnand and Mr Watson indicate that the offences were the result of a misguided sense of love, to show them that he "loved them". In direct contrast the two victims spoken to view the offending behaviour as acts motivated by his desire for power, ownership and control of them. [SF] described his eyes and look prior to the commission of offences as an eerie, scary look not one of love. The actual feelings experienced by her were of hate and fear not love".
20 And in paragraph 9.01 under the heading "Recommendation" there appears:
"While it appears Watson has made every effort following his arrest to address his offending behaviour there remains to the writer some areas of concern. The offending behaviour was of a calculated nature over a considerable time-frame affecting the lives of victims and immediate family. Watson is considered a risk offender and needs to be monitored to ensure he avoids "at risk" situations".
21 Similarly his Honour had regard to the report of the psychiatrist, Dr Hutchinson of 11 June 1998 who described the applicant in terms of being a depressed and penitent, ashamed man and indeed, a very frightened man. Dr Hutchinson went on to say: "predicting the future is difficult. Pedophiliacs are well known for their re-offending but I felt he was suitably penitent and this Court case has given him stress which I think he is unlikely to risk again. I think his chances of re-offending are small".
22 There was also before his Honour a report from John Brinnand, Social Worker who remarked that the "greatest risk of Mr Watson re-offending is the improper management of his shame and his need to offend, be punished and ultimately be forgiven. Through disclosures of his offending history to selected persons, Mr Watson has begun to forge positive self-image based on an open, self-directed confrontation of his shame and his secrets".
23 As to the objective seriousness of the offences his Honour's views were made quite clear. He regarded the conduct as most serious.
"If there is one male a young girl is entitled to trust in a sexual sense as she grows into maturity it is the man who is her father or stepfather. You, Mr Watson betrayed that trust and as each of these then young girls approached their teens and were at their most vulnerable you used and abused them in a shameful way. They will continue to bear the scars of your conduct over the years and I doubt, on the evidence, that you fully understand the burden you placed on them.
To those others in society who might think of behaving in the way that you did, let it be clearly understood that by doing so when caught they face, as you do, strong custodial sentences".
24 His Honour made these remarks having dealt with submissions that there should be some degree of mitigation because of the delay in the matter coming to light and came to the view that the prisoner was not entitled to profit from that fact. The prisoner could not gain because he was prepared to pretend that nothing had happened to his children. His Honour then said "I can see no reason for finding special circumstances other than the way I propose to structure the sentence and I find them for that reason. I take into consideration the fact that he will be serving his sentence in segregation".
25 Before he imposed the sentences as structured above, his Honour said: "I do not think that the maximum provided for the individual offences is sufficient to encompass the criminality of the totality of these offences and I propose to structure the sentence to encompass all complainants by way of accumulation".
26 It is submitted for the applicant that the first basis that would enliven the discretion of this Court to interfere is that his Honour, whilst having regard to the maximum sentence available under s 76 as it then applied, did not have regard to the range of sentences imposed at the relevant time during the operation of that section. That it was appropriate and proper for him to have done so is clear: Regina v Shore (1992) 66 A Crim R 37 at 42 per Badgery-Parker J. It was submitted in writing and orally that the maximum penalties for offences with which his Honour was dealing have increased markedly and that moreover, judicial attitudes have strengthened in the sense that more severe sentences are being imposed than was the case in 1970 to 1977. By reference to recently generated statistics, counts 2, 6 and 9 after 1981 would have been charged as offences under s 61D (repealed in 1989) as sexual intercourse by a person in authority with a maximum penalty of 12 years. The applicable section after 1989 was s 66C(2) which fixed a maximum penalty of 10 years.
27 Specific cases are difficult to come by but Mr Heazlewood of Counsel for the applicant was good enough to provide the Court with an extract from "Sentencing Violent Offenders in New South Wales" by Ivan Potas (1980). This publication (clearly not available to the learned sentencing judge) does provide information that is indicative, subject to all the usual variables, of a lower range of sentence being imposed decades ago (as to use of statistical material see: Regina v Visconti (1982) 2 NSWLR 104 and R v Bloomfield (1997-1998) 44 NSWLR 734).
28 The second basis, it is contended, which warrants interference is the decision of the High Court in Pearce v The Queen (1998) 156 ALR 684 and the statement of approach, if I may put it that way, set out in the judgment of McHugh, Hayne and Callinan JJ at paragraph 45:
"To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality".
29 What is here submitted is that in light of that statement by their Honours it can now be seen that the structuring by the sentencing judge of his sentence was flawed insofar as it is apparent that an "appropriate sentence for each offence" was not fixed but rather the first count relevant to each separate complainant was used as the vehicle for the imposition of the higher sentence (the 2 year fixed term) even if the facts founding each of those relevant counts was not as serious as the facts founding the counts in respect of which the fixed term of 12 months was imposed.