Criminal Law - Appeal and new trial - Appeal against sentence - Other matters - Maintaining sexual relationship with young person under 17 - Sentence of two years' imprisonment - Non-parole period of one year and three months - Whether sentence manifestly excessive.

Judgment Number: [2011] TASCCA 18

2 The order that the appellant be eligible to apply for parole when he has served 15 months of his sentence is quashed and in its place it is ordered that he not be eligible for parole until he has served one-half of the period of his sentence.

1 The appellant appeals against a sentence of two years' imprisonment, subject to a non-parole period of 15 months, imposed on him by Tennent J upon his conviction, on his plea of guilty, to a charge of maintaining a sexual relationship with a young person under the age of 17 years.

2 The grounds of appeal involve contentions that the head sentence and the non-parole period are manifestly excessive, and that the learned sentencing judge erred in:

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disregarding submissions that the sexual relationship was provoked by the complainant;

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declining to regard the case as atypical;

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determining that the need for general deterrence demanded the imposition of an actual custodial sentence; and

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imposing a non-parole period greater than one half of the head sentence.

3 The sexual relationship that is the subject of the conviction commenced some time after 3 May 1981 and concluded not long after January 1982. During this period the female complainant was 15 years of age and the appellant 46 years of age.

4 For some years prior to 1981, the complainant had been a member of the Rosny Children's Choir. The appellant was the choir's organist. They became acquainted and a friendship developed between them. The appellant, on occasions, gave the complainant a lift home after choir rehearsals. The complainant's parents had separated when she was three years of age. She resided with her mother. The complainant's mother came to regard the appellant as a trusted family friend. He often had a cup of tea with her after giving the complainant a lift home. This continued during the period of his sexual relationship with the complainant.

5 The complainant looked on the appellant as a confidant and father figure, and often wrote essays for him expressing her feelings about herself and her life. As the appellant drove her home they talked about the things that were troubling her. According to the medical report provided to the Court on behalf of the appellant, one of the topics she raised was sex. The complainant's emotional involvement with the appellant began in excess of eight months before their sexual relationship. It is referred to in a diary note she made, dated 5 September 1980, headed "I need someone". At the outset of the diary note she appears to equate friendships with being on a merry-go-round and refers to moving from one merry-go-round to another when "she sees one which might be better", but having made the move it ends up the same as before except with someone different. She says: "At the moment I'm on [the merry-go-round] with Peter Richman". She concludes the entry: "Peter is the someone I need. I need him to love me like his daughter. I love him like a father, but I feel that he doesn't understand, not many do".

6 When driving the complainant home some time after 3 May 1981, the appellant stopped his vehicle on the side of the road and kissed her. He then touched her breasts, initially over her clothing and subsequently directly on her skin. He placed her hand on his penis and told her to rub it. He rubbed her vagina. This incident marked the commencement of their sexual relationship. Thereafter, over a period of a couple of months, similar sexual activity occurred on more than five occasions. In the course of driving the complainant home, the appellant parked in a secluded spot, kissed her, inserted his tongue in her mouth, touched her breasts and her vagina and instructed her to touch and stimulate his penis, which she did. On the second occasion that they had sexual contact, the appellant inserted his finger into the complainant's vagina. He also requested her to perform oral sex on him, which she did.

7 The prosecutor informed the sentencing judge that whilst the complainant participated in the sexual relationship, this was in order to maintain the close bond that had developed between her and the appellant, and she feared losing what she believed was his love and affection. In her victim impact statement the complainant said that she considered the appellant to be her adopted dad in replacement for her own father whom she rarely saw.

8 The appellant ran a business from premises in Sandy Bay. Some time after his sexual relationship with the complainant began, he employed her to do filing at his business premises on Saturday mornings. She did so over a period of a couple of months. When the appellant and the complainant were alone at the premises the appellant played pornographic videos for her, and then initiated sexual contact. The contact was much the same as that which occurred in his vehicle and included digital penetration of her vagina and anus. At his request she digitally penetrated his anus. On one occasion he requested her to perform oral sex on him whilst he licked her vagina. Sexual activity of this type occurred on nearly every occasion that the complainant went to the appellant's business premises.

9 In January 1982, the complainant, who was staying in the north of the State, joined the appellant at Rutherglen Village where he was working. Ostensibly she was there to assist with his work. During the complainant's visit, she performed oral sex on the appellant and he licked her vagina.

10 It was accepted by the prosecution that it was the appellant who brought the sexual relationship to an end. The appellant's counsel on the sentencing hearing, Mr Morgan, explained to the sentencing judge that this occurred, not long after the incident at Rutherglen, on a Saturday morning when the appellant and the complainant were at the appellant's business premises. That morning the appellant telephoned Jennifer Filby, the head of the choir, told her of the relationship and requested her to come to the premises to assist with its termination. She immediately did so and the relationship thereupon finished. The appellant offered to resign from his position with the choir, and for some months avoided having anything to do with it. The complainant remained a member of the choir, but left some time after she turned 16. Thereafter, Ms Filby persuaded the appellant to resume his previous role with the choir.

11 The complainant's victim impact statement includes the following. She suffered 30 years of psychological trauma as a result of the appellant's sexual abuse. He took advantage of her need for a father figure to use her for his sexual gratification. This took away her personal power, made her feel of little value; and led to others victimising her as well. She developed bulimia when she was 14 years of age, about halfway through Grade 9. [This was about a year prior to the commencement of her sexual relationship with the appellant.] She started drinking alcohol during school hours when 16, and became a heavy marijuana user when 17. Whilst she had stopped using marijuana for about seven to eight years, she was still a heavy consumer of alcohol. She had found it difficult to regain her self-confidence and considered that because of the appellant's abuse she was 20 years behind in her capacity to earn an income. She had reclaimed her life, had completed two degrees and was completing an honours degree. She struggled to have meaningful relationships, whether platonic or potentially romantic, and this was because her involvement with the appellant had stifled her ability to do so. She was unable to enjoy her sexuality as an adult.

12 In the course of the sentencing hearing the prosecutor made a variety of statements to the sentencing judge on the vulnerability of the complainant when the appellant took advantage of her, and the adverse consequences of what he had done to her. Ultimately these statements were to the following effect. Before the complainant's sexual relationship with the appellant, she had already experienced troubles in her life which had been compounded by the absence of a father figure from an early age. When 8 years of age she had been the subject of a sexual assault by a relative and she had been victimised sexually by others subsequent to her relationship with the appellant. It was accordingly very difficult for the complainant to isolate the detrimental impact of the appellant's behaviour on her from the impact on her of abuse by others. By the age of 18 she had left home. and moved to the mainland where she developed significant drug and alcohol problems. She returned to Tasmania in 2002, and sought the assistance of counsellors. It was not until 2009, or early 2010, that she felt able to make a formal complaint to the police about the appellant's conduct. The prosecutor asked the sentencing judge to take into account that the appellant was aware that the complainant was very troubled at the time of commencing the sexual relationship.

13 In the course of the sentencing hearing the prosecutor informed the sentencing judge that on 25 August 2010, the appellant voluntarily attended on police and participated in an audio visual record of interview, during which he admitted sexually assaulting the complainant and said that he initially stopped his vehicle when driving the complainant home in order to talk to her about her problems, but the sexual urge took over. The appellant also told the police that he had developed an affection and fondness for the complainant, and was aware that she treated him as a counsellor and father figure.

14 Counsel for the appellant on the sentencing hearing, opened his submissions by stating that nothing he was to say was intended to seek to excuse the appellant's breach of trust. His submissions included the following. No one was able to explain why the appellant had misconducted himself as he did with the complainant. Over the appellant's adult life he had been involved with thousands of young females. The only instance of impropriety by him was that which involved the complainant. There was not the slightest suggestion he had ever been involved in similar impropriety. He was not a sexual predator. He had not used his association with children to groom them for sex. The Rosny Choir was made up of children from the age of 8 to 18 years. Where appropriate, adults involved with the choir were expected to provide a friendly ear to members of the choir in order to assist them with their problems. In late-1979, in the course of a tour by the choir, the appellant became aware of the complainant's problems with bulimia. He offered to counsel her. Their relationship developed innocently from the appellant providing the complainant with a sympathetic ear when counselling her. It was commonplace for an adult to drive a member of the choir home when the member lived in the same general direction as the adult. Consistent with this practice, the appellant regularly drove the complainant home.

15 Mr Morgan said: "Over a period of time, with sexually provocative letters written by the complainant to Mr Richman, overly familiar greetings and other temptations which he should have resisted, he commenced a relationship with the complainant ...". To start with he thought he was helping her, but "when first she started writing inappropriate letters or started flirting with him, he did not know how to deal with it." In the appellant's mind, there was never any question of the complainant being other than a willing partner, and he had not made sexual advances to the complainant in the knowledge that they were unwelcome.

16 As to the pornographic material said to have been shown to the complainant at the appellant's business premises, Mr Morgan said the appellant had no recollection of having that material, but could not go as far as to say that he categorically disputed or challenged the complainant's allegations referable to it.

17 Mr Morgan said the appellant had no idea that his sexual involvement with the complainant had caused her distress, and had been dismayed to find that this was so following his police interview in August 2010. He had entered a very early plea of guilty in order to spare the complainant further distress. He had thought that he and the complainant had a continuing friendship following the termination of their sexual involvement. When the complainant turned 18 she sent the appellant a written invitation to attend her birthday, which he declined. (In his police interview the appellant said this incident had occurred when the complainant turned 21.) When they met by chance in about 1999 or 2000 at a rural festival, the complainant introduced her children to the appellant, invited him to call on her whenever he was in the area, and left her young daughter with him while she went home to get a copy of a university assignment she wanted to show him. In his police interview the appellant said that in that assignment the complainant had written that she regretted that that their friendship had developed the wrong way, but that was all water under the bridge. Mr Morgan said that in that interview, the appellant admitted his misconduct with the complainant without prevarication and without trying to justify it.

18 Mr Morgan went on to say that throughout the appellant's adult life he had committed himself to children in Tasmania. He had donated his time to the Rosny Choir. (His work with the choir began in about 1967.) This had involved participating in hundreds of performances, touring around Tasmania and trips to the mainland and overseas. Save for travel expenses when out of the State and the occasional reimbursement of some out of pocket expenses, he had borne his own expenses. The choir's many recordings over the years, initially audio, and, more recently audio-visual, were produced at the appellant's expense to be sold by the choir. The financial reward went to the choir and the appellant did not receive one cent. Had he charged a commercial rate for his services to the choir it might not have had the resources to achieve that which it did. He had left the choir in 2000, and began a musical theatre group from which he gained no financial reward.

19 Mr Morgan suggested that the failure of a mushroom growing venture that the appellant had been involved in was linked to the amount of time that he donated to the choir, and said that the appellant's production business had suffered following publicity associated with his criminal conduct. Although 76 years of age, the appellant had not retired, in part because of his limited financial resources. The appellant and his wife had sold their home in order to fund the appellant's defence. They now resided with one of their daughters.

20 Mr Morgan said that over the years the appellant had given countless hours of time to charities and the promotion of children. He had supported children into careers in radio, television, film, and opera. He had always been extremely generous with his time and talents. He had not taken advantage of opportunities to profit from these activities, and had given his services for free on many occasions. The appellant produced Carols by Candlelight in Hobart for over 25 years, and had been involved with Carols by Candlelight from its inception in 1949. That involvement ended as a consequence of publicity associated with his criminal conduct. At a recent dinner to celebrate 50 years of television in Tasmania, the appellant had been singled out and toasted for his pioneering work in that media and related areas, and for his monitoring of students.

21 Twenty-two references that were tendered to the sentencing judge provided confirmation of the very high regard in which the appellant was held, and his significant contributions to the community.

22 A medical report provided to the sentencing judge on behalf of the appellant included the following. About ten years previously the appellant had suffered from cardiac problems as a consequence of mitral valve disease. He had also undergone surgery for lumbar spine problems. He required medication for gout and suffered from asthma. He suffered from a sleep disorder, narcolepsy, for which he received medication. For some eight years he had been prescribed anti-depressants. He did not suffer from any cognitive impairment.

23 The first ground of appeal is that her Honour erred in disregarding Mr Morgan's submissions that the appellant's sexual relationship with the complainant developed following his receipt of "sexually provocative letters written by the Complainant to him, which submissions were unchallenged by the Crown".

24 It is correct that in the course of her comments when passing sentence, the learned sentencing judge made no express reference to sexually provocative letters. What her Honour said in relation to the inception of the relationship was:

"You occasionally gave [the complainant] a lift home after Wednesday night practice. There is little doubt that the complainant was at the time a troubled young girl. She had been the subject of abuse and had no father figure. She had suffered from bulimia. You and she developed a friendship and she came to look to you as a confidant and father figure. She would write essays and letters to you in which she set out her feelings of what was troubling her in her life. You and she talked about these things. I accept that initially you may have thought you could help her by offering yourself as someone she could unburden herself to. However, on one of these trips when you were taking the complainant home, you stopped the vehicle by the side of the road and kissed her."

25 That her Honour did not make express reference to the complainant having written sexually provocative letters to the appellant does not mean that she paid no regard to them. In the course of his submissions, Mr Morgan referred to the complainant having written sexually provocative and inappropriate letters to the appellant, and having flirted with the appellant. Nonetheless, Mr Morgan repeatedly emphasised that the appellant did not in any way blame the complainant for what had occurred or seek to justify his conduct. In this context, I find it difficult to see how the sentencing judge could have usefully paid express regard to the suggestion that the complainant had encouraged the appellant's sexual interest in her. It most certainly would not have justified his behaviour or rendered him blameless, and there was no suggestion that it did so. It may have countered a suggestion that the appellant had prevailed over the complainant's express or physical resistance to his sexual advances, however, there was no such suggestion. In these circumstances I am not prepared to infer that because her Honour did not expressly refer to the complainant's sexually provocative letters, her Honour disregarded the submissions referred to. I would reject ground 1 of the appeal.

26 The second ground of appeal is that her Honour erred in declining to regard the case as atypical when there was ample material to justify such a conclusion.

27 At the end of his submissions to the sentencing judge, Mr Morgan said:

"We urge the Court to recognise that this is a most atypical case. It's atypical in a number of ways and I've really addressed most of them as I've gone through, but one of them was that the relationship concluded when he wisely sought outside assistance to help him bring it to an end. In addition your Honour, all the prior choristers who have volunteered information to us, or who have written to our client, continue to say that their respect for [him] remains. This, we suggest, demonstrates that they do not see him as a predator of young children. ...

He has pleaded guilty at the earliest stage and as I said before, he did this to make [it] clear that he did accept responsibility. Your Honour he is distraught and I use that word quite deliberately. He is distraught to find out after all these years that the complainant alleges that the relationship hurt her. When they last talked in 1999 or 2000 ..., there was no clue or hint that he saw or felt that gave him any indication that he had left her in a hurt state. Rather, he had continued to believe that there was a continuing friendship between them. Up until the time of him being interviewed by the police, that remained his understanding.

That concludes what I have to say in relation to mitigation, if it please."

28 In the course of her comments on passing sentence, the learned sentencing judge said:

"Your counsel made a submission that your case was atypical because you sought help to end the relationship, you retain the respect of many people involved with the choir over the years, you have pleaded guilty and you are distraught to find out how much the relationship hurt [the complainant]. It was also indicated that when you last spoke to [the complainant] in or about 1999 ... [she] apparently had no hesitation in leaving a child with you while she went to get a university essay to show you.

With respect I am not satisfied any of these factors make this case atypical. ..."

29 In her written submissions in support of this ground of appeal, counsel for the appellant submits that the learned sentencing judge's error was two-fold. Counsel submits that the first error was her Honour's enumeration of the matters relied on by Mr Morgan to provide a foundation for the atypical nature of the case; the second error was her Honour's failure to appreciate the significance of these matters. Counsel submits that her Honour "failed to define all matters that made this matter atypical" and that the matters referred to by the sentencing judge did not include the following:

"(i) This was a succumbing to provocation that should have been resisted, rather than a situation of a sexual predator grooming a Complainant.

(ii) The conduct was over a matter of months, not years.

(iii) It was ceased by the Appellant by his recognition of the wrong he was doing, and once he had resolved to end the relationship, it ended, despite continued contact with the Complainant.

(v) There was no request/threat to keep the conduct a secret at any stage....

(vi) The acts fell short of vaginal or anal intercourse.

(vii) There was only one Complainant.

(viii) There was no suggestion that there were any other Complainants waiting in the wings, despite significant publicity of the matter in circumstances where it was highly likely other Complainants, if they existed, would have come forward.

(x) The Appellant had made admissions when interviewed by police.

(xi) Her Honour had the benefit of Dr Sale's report [in which he] opines:

'that the risk of re-offending and the need for supervision is unusually low for offences of this nature.'"

30 An atypical case is one that is not conformable to the ordinary or typical case. See the Macquarie Dictionary online and the Shorter Oxford English Dictionary, 3rd ed, 1975. The premise that underpins this ground of appeal is that there is such a thing as an ordinary or typical case of maintaining a sexual relationship with a young person under 17. I am unable to accept this is so. Bearing in mind the diversity of the factors that bear on a conviction for any crime, I am dubious that it could ever be said that a particular case was ordinary or typical, even where the scope of the particular crime was relatively confined. There are almost no limits on the potential scope of a case of maintaining a sexual relationship with a young person under 17. For this reason it has been recognised that it is extremely difficult to establish a sentencing range for it, Crowley v R [2003] TASSC 147, par[18], and Director of Public Prosecutions v M [2005] TASSC 14, pars[9], [33] and [34]. I am in little doubt that the extremely wide range of conduct that can be encompassed by a conviction for this crime could never justify categorising a particular instance of it as ordinary or typical, save insofar as it could be said that ordinarily each case is dissimilar. It is against this background that I understand her Honour's rejection of the proposition that the appellant's case was atypical. I do not accept that the obverse of her Honour's rejection is a finding that the appellant's case was ordinary or typical.

31 The appellant's case, like almost every case of this crime, involved a wide variety of facts and circumstances, some of which would have arisen in other cases to markedly different and varying degrees. Her Honour's rejection of the proposition that the appellant's case was atypical did not involve any failure to recognise that in order to sentence the appellant, it was necessary to pay regard to all of the relevant facts and circumstances in order to asses the criminality of his conduct. With regard to the above list of matters detailed by the appellant's counsel on this appeal, in the course of her Honour's comments when sentencing the appellant she, expressly referred to the bulk of them, and there is no reason to conclude that she did not have regard to all of them. The question whether her Honour gave insufficient weight to any of them is an aspect of the ultimate issue raised by ground 5 of the appeal, that is, whether the sentence was manifestly excessive. I would reject ground 2 of the appeal.

The imposition of an immediately effective custodial sentence

32 The third ground of appeal is that her Honour erred in "determining that the prima facie need for a sentence of general deterrence demanded the imposition of an actual custodial sentence when such considerations were outweighed by the powerful mitigating matters put on the Appellant's behalf".

33 Following the passage quoted in par[27] above, which concludes with her Honour saying that she was not satisfied that the case was atypical, her Honour said she accepted that the appellant may not be in a general sense a sexual predator, but noted that the appellant knew that the complainant was very vulnerable and that his relationship with her was wrong, and said that he had breached the trust that had been placed in him as a respected member of the choir. Her Honour went on to say:

"The legislation under which you have been charged is designed to protect young people who because of their age and/or circumstances lack the maturity to make proper decisions for their own welfare. Despite the age of this matter, a not uncommon feature with crimes of this nature, and notwithstanding the mitigating factors to which your counsel has referred, there is a need for a sentence of general deterrence. I accept that the need for personal deterrence is very low. A sentence of general deterrence must involve an actual custodial sentence."

34 It is beyond question that general deterrence was a significant consideration in the sentencing of the appellant. Whilst the conduct in question occurred 30 years ago, I do not consider that this reduced the need to have regard to general deterrence. Contra, R v Connolly [2001] TASSC 92, par[23]. It is not uncommon for there to be a very long delay between the commission of a sexual offence and the victim's complaint, particularly in the case of a young victim. It would undermine the very real needs of general deterrence in relation to such crimes if regard to this consideration was reduced because a crime was long past. The appellant's crime involved a gross breach of trust and was very serious. He was 46 years of age and the complainant 15. She was a member of the Rosny Children's Choir in which he was the organist and a respected leader. They met because they were involved in the choir and it was that shared involvement that provided the appellant with the opportunity to develop a relationship with the complainant. There was nothing impetuous about the appellant's crime. The development of his relationship with the complainant into a sexual relationship was a lengthy process which extended over many months. Their criminal relationship continued for a period of not less than eight months. During this period the appellant regularly had sex with the complainant by taking advantage of opportunities, such as driving her home from the choir, and by creating opportunities that he could take advantage of, such as employing her to work for him on Saturday mornings and allowing her to join him at Rutherglen. Notwithstanding the mitigatory matters that the appellant could claim in aid, it would have been quite wrong for her Honour to have paid so little regard to the needs of general deterrence as to fail to impose an immediately effective sentence of imprisonment upon him. Her Honour did not err in finding "that a sentence of general deterrence must involve an actual custodial sentence". I would dismiss ground 3 of the appeal.

35 The fourth ground of appeal is that her Honour erred in imposing a non-parole period greater than one half of the head sentence. The non-parole period is also the subject of the second aspect of ground 5 which contends that the sentence of two years' imprisonment with a non-parole period of 15 months was manifestly excessive in all the circumstances. I will address the issues raised in relation to the non-parole period after dealing with the balance of the appeal.

The appellant well knew the complainant was damaged

36 In the course of contending that the sentence was manifestly excessive, counsel for the appellant digressed to submit that when sentencing the appellant her Honour made a specific factual error when she said:

" ... you fostered a relationship with [the complainant] at a time when you well knew she was damaged and vulnerable and in need of support."

Counsel submitted that there was no evidence that the appellant was aware that the complainant had been sexually assaulted when 8 years of age, but that this is what her Honour was referring to when she said that the appellant well knew that the complainant was damaged. There was no express evidence that the appellant knew of that sexual assault although this might have been inferred. Her Honour had before her evidence that the complainant's close emotional involvement with the appellant began in excess of eight months prior to their sexual relationship. That the complainant considered the appellant to be a confidant. That she wrote to the appellant about her life, and that they talked about her troubles. That they talked about sex. It was open to infer that one of the things the complainant mentioned when talking to the appellant was that she had been sexually assaulted when 8.

37 A contrary inference might be drawn from the fact that the prosecutor did not assert to her Honour that the appellant had been aware of that sexual assault. It is also germane that what prompted the prosecutor to inform the sentencing judge of that prior assault was the prosecutor's concern that her Honour should be aware of it when considering the impact of the appellant's sexual abuse on the complainant. The prosecutor provided this information to the Court after Mr Morgan had begun making submissions to the sentencing judge on the complainant's sexual experience. Whilst those submissions were interrupted and were not completed, it seems from what Mr Morgan said that neither he nor the appellant was aware that the complainant had previously been sexually assaulted. Moreover, whilst the appellant told the doctor who provided the medical report on him to the Court about other inappropriate relationships of the complainant, no reference was apparently made to her having previously been sexually assaulted.

38 Nonetheless, did her Honour's statement that the appellant well knew that the complainant was damaged involve a finding that he knew the complainant had been sexually assaulted when aged 8? That which her Honour said at the outset of her comments when sentencing the appellant is set out in par[24]. This is the only passage in the comments from which inferences may be drawn that explain her Honour's later reference to the complainant having been damaged. Her Honour had been informed of the sexual assault when the complainant was 8. There had been no mention of any other prior sexual abuse. It is accordingly likely that her Honour's statement early in that passage that the complainant "had been the subject of abuse" is a reference to that assault. As I read the passage, after describing the complainant as "a troubled young girl", her Honour referred to the complainant's prior abuse, the absence of a father figure, and bulimia, in order to explain that description. I do not read her Honour's later comment: "You and she talked about these things" as relating back to those matters. I understand that comment to refer to what the complainant wrote in essays and letters about her feelings and what was troubling her. I appreciate however that her Honour's reference to the appellant and the complainant talking about "these things" could be a reference not only to those matters but also to the complainant having been the subject of abuse, having no father figure, and suffering from bulimia.

39 Ultimately, I am not satisfied that her Honour erred as asserted when later in her comments she said of the appellant that he fostered the relationship with the complainant when he well knew she was damaged and vulnerable and in need of support. I am not persuaded that in saying this her Honour was referring to the complainant having been sexually assaulted when 8 and stating that the appellant well knew of that assault. The evidence before her Honour was that prior to the complainant's sexual relationship with the appellant she was, in general terms, troubled and was suffering from bulimia. I understand what her Honour said to be a reference to these matters.

40 As already mentioned, it is extremely difficult to establish a sentencing range for a conviction for maintaining a sexual relationship with a young person under 17; Crowley v R (supra), par[18], and Director of Public Prosecutions v M (supra), pars[9], [33] and [34].

41 In her text, Sentencing in Tasmania, 2nd ed, The Federation Press, Sydney, 2002, at par11.436, Professor Warner said there were insufficient sentences imposed in this jurisdiction between 1995 and 2000 for a single count of maintaining a sexual relationship with a young person under 17 to establish a sentencing range for this crime. All the sentences that had been imposed were custodial and the median sentence was 18 months. For the purposes of this appeal, counsel for the respondent extracted very brief details of some 95 sentences that were imposed for a single count of this crime from 2001 to August 2011. The sentences range between two months and eight years, and the median sentence is two years four months.

42 It is noteworthy that the head sentence imposed on the appellant is less than that median sentence of two years and four months' imprisonment. There are good reasons for this. They include the gist of the matters detailed in par[29] above, together with the appellant's plea of guilty, his age when sentenced, 76, his poor health, his prior good character apart from the crime in question and his contributions to the community.

43 I will expand on some of these matters. Not only did the appellant terminate his relationship with the complainant, but in doing so he involved Jennifer Filby. This greatly reduced any likelihood of the relationship being renewed, but also increased the risk that the appellant would be prosecuted for what he had done and prosecuted successfully. Had the complainant or Ms Filby then gone to the police, that which the appellant had said to Ms Filby would have been evidence against him. Ms Filby was deceased when the appellant was interviewed by police in August 2010. Notwithstanding that Ms Filby was not then able to give evidence against him, the appellant made admissions in that interview and pleaded guilty at an early date. He is entitled to full credit for these mitigatory matters.

44 Nonetheless, paying due regard to all relevant factors, I am not able to conclude that the head sentence of two years' imprisonment imposed on the appellant was outside the legitimate range of sentences that were open, albeit that I consider the sentence to be at the upper end of that range. As explained in par[34], the appellant's crime was very serious. The sentence of two years' imprisonment imposed on the appellant was not, to adopt the phrase used in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505, unreasonable or plainly unjust.

45 As already mentioned, the fourth ground of appeal is that her Honour erred in imposing a non-parole period greater than one half of the head sentence, and the second aspect of ground 5 is a contention that the non-parole period of 15 months was manifestly excessive.

46 In response to the appellant's submissions challenging the length of the non-parole period, the respondent's written submission is that the respondent will make no submission given the appellant's lack of criminal history, his good work record and the passage of time that elapsed between the offending and sentence. In effect the respondent does not oppose this aspect of the appeal.

47 The fixing of a parole eligibility period gives a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom once the prisoner has served the minimum period the judge determines that justice requires the prisoner must serve, having regard to all the circumstances: Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629, and Carr v R [2002] TASSC 60; (2002) 11 Tas R 362, par[96].

48 The many mitigatory matters that the appellant can claim in aid, coupled with my view that his head sentence was at the upper end of the applicable range, leaves me in no doubt that this was a clear case for the imposition of the minimum parole eligibility period of one half of the sentence and that, with respect, her Honour erred in failing to do so.

49 I would accordingly allow the appeal, but only insofar as it relates to the parole eligibility period.

50 The order I would make is that the order that the appellant be eligible to apply for parole when he has served 15 months of his sentence be quashed, and in its place it be ordered that he not be eligible for parole until he has served one half of the period of his sentence.

51 I agree with the reasons of Evans J, and with the orders he proposes.

52 I agree with the reasons for judgment of Evans J, and with the orders which he has proposed.