Judgment
1 WOOD CJ at CL: I have read in draft form the judgment of Hislop J. I agree with the orders proposed, and with the reasons of his Honour.
2 HISLOP J: On 21 August 2003 the applicant pleaded guilty before Berman DCJ to an indictment containing seven counts, namely, three counts (counts 1, 4 and 5) of indecent assault contrary to the Crimes Act 1900 s 61E(1), the maximum penalty for which was 4 years imprisonment; two counts (counts 2 and 3) of indecent assault on a person under the age of 16 years and under authority contrary to the Crimes Act 1900 s 61E(1A), for which the maximum penalty was 6 years imprisonment; one count (count 6) of sexual intercourse with a person above the age of 10 years and under the age of 16 years contrary to the Crimes Act 1900 s 66C, for which the maximum penalty was 8 years imprisonment; one count (count 7) of sexual intercourse with a person above the age of 10 years and under the age of 16 years and under authority contrary to the Crimes Act 1900 s 66C(2), for which the maximum penalty was 10 years imprisonment.
3 On 14 November 2003 his Honour sentenced the applicant to imprisonment for a fixed term of 2 years in respect of each of the first five counts, and imprisonment for 4 years in respect of the last two counts, with a non-parole period of 3 years. Each of the sentences was to date from 21 August 2003.
4 Counts 1-5 relate to offences committed by the applicant against a relative "A" during the period 1983 - 1989. A was born on 6 December 1978.
5 As the sentences in respect of the first five counts were subsumed by the sentences on the last two counts, it is unnecessary to record their detail, suffice it to say that, as was conceded in the applicant's written submissions, all of them were very serious offences.
6 The circumstances of the sixth count, in brief, were that the applicant entered A's bed at night, removed A's pants and indecently assaulted him before causing him to commit fellatio upon the applicant.
7 "B" was a relative of the applicant. In September/October 1988, the applicant indecently assaulted her before having penile-vaginal intercourse lasting some five to ten minutes, during which B was unable to speak or scream because of the pain. At the time of the offence, B was 10 years of age. This offence gave rise to the seventh count.
8 During the same period the applicant committed a series of sexual offences against another young relative. On 15 May 1998 the applicant was sentenced by Kirkham DCJ to six years imprisonment with a non-parole period of four and a half years, to expire on 14 November 2002 for those offences.
9 The victim of those offences made statements to police dated 2 and 8 May 1996 which raised the possibility that A and B may also have been sexually molested by the applicant. However it was not until 29 September 1999 that A gave a statement to police, not until 12 November 2001 B made a statement to police, and not until 29 April 2002 that the applicant was charged with the subject offences.
10 The applicant was released to parole on 14 November 2002 after completing the non-parole component of the sentences imposed by Kirkham DCJ. He was returned to prison on 21 August 2003 to serve the balance of that sentence as well as being bail refused in relation to the subject offences.
11 The applicant was born on 22 June 1948. He gave a history that he had been sexually interfered with as a child and that during the period of the offences his mind was full of sexualised thinking about children.
12 In 1988 the applicant, apparently of his own volition, sought treatment for his condition and in 1997 sought counselling with a psychologist who he continued to see on a monthly basis save for the periods when imprisoned. He involved himself in appropriate programs. He is in a relationship with his present partner. His Honour found that, apart from the offences referred to above the applicant was a man of good character. His Honour concluded, "it is universally acknowledged that at present the offender is most unlikely to re-offend" and that the rehabilitation of the applicant had been achieved.
13 His Honour held that if he had been dealing with both the offences to which the offender pleaded guilty on 21 August 2003 and the offences dealt with by Kirkham DCJ at the same time he would have given effect to the principle of totality by partially accumulating the sentences such that the overall effective sentence would have been one of 10 years imprisonment with a seven and a half year non parole period. This was the effect of the sentences which his Honour in fact imposed.
14 The applicant seeks leave to appeal against the sentences on the following grounds:
1. The learned judge failed to have sufficient regard to the impact of the delay, possibly by the individual complainants but certainly by the prosecuting authorities, in bringing the prosecutions against the applicant.