RLS v R

THE APPLICATION TO EXTEND TIME 15The sentences for the child sexual assault offences were imposed on 27 November 2008. The notice of intention to seek leave to appeal was not filed until 19 October 2011, almost 2 years and 11 months after the sentences were imposed. The sentence for the child pornography offence was imposed on 23 October 2009. It was not until 24 March 2011, 17 months later, that the applicant filed a notice of intention to seek leave to appeal. 16Pursuant to s. 5(1)(c) of the Criminal Appeal Act 1912 (NSW) any appeal against sentence by a person convicted on indictment can only be brought with the leave of the court. Section 10(1)(a) of the same Act prescribes a period of 28 days after sentence within which a notice of intention to seek leave to appeal must be given. Section 10(1)(b) gives the court power to extend the time within which the notice under s. 10(1)(a) is required to be filed. 17In support of the application for an extension of time, the applicant filed an affidavit sworn on 19 October 2011. In paragraph (2) of that affidavit, he deposed to having had a short conversation with his solicitor following the imposition of the sentences for the child sexual assault offences, in the course of which the possibility of an appeal was briefly canvassed. The applicant was thereafter sent to the Parklea Correctional Centre, in circumstances where he was, according to his affidavit, "surprised by the length of the sentence and (was) depressed for some time." The applicant also deposed (at paragraph (4) of his affidavit) to the fact that after arriving at Parklea he found it "impossible to get any information about the possibility of an appeal". 18According to paragraph (5) of the applicant's affidavit, he was moved to the Junee Correctional Centre on 4 November 2010. Whilst there, he had discussions with a fellow inmate, following which he wrote to the Legal Aid Commission raising the question of an appeal against the sentences imposed for the child sexual assault offences. He then forwarded a notice of intention to seek leave to appeal together with an application for an extension of time in which to lodge that notice. According to his affidavit, he was advised by the Registrar on 13 March 2011 that his notice and application "had not been registered because of the delay in filing it". A further notice was filed on 19 October 2011. 19The applicant's affidavit makes no reference to the fact that on 28 September 2009, i.e. between the date on which he was sentenced for the child sexual assault offences and the date on which he was moved to Junee Correctional Centre, he was sentenced for the child pornography offence. Clearly, at that time, he had the benefit of legal representation. His affidavit completely fails to address the question of whether he discussed with his then representative the question of an appeal against the sentences imposed for the child sexual assault offences. If he did discuss that issue, he has proffered no explanation for the delay in the filing of the relevant application. If he did not discuss that issue, he has proffered no explanation for his failure to do so. Either way, the affidavit is deficient. Moreover, the affidavit is completely bereft of any explanation for the delay in filing the notice relating to the sentence imposed for the child pornography offence. 20Unsurprisingly in these circumstances, and whilst recognising that the court has a discretion to extend time, the Crown opposed any grant of an extension. The Crown submitted that the explanation advanced by the applicant for the delay was without merit, and that exceptional circumstances warranting an extension of time had not been established. 21This Court has consistently emphasised the need to pay proper regard to the time limits imposed by the Criminal Appeal Act. For example, in R v Lawrence and ors [1980] 1 NSWLR 122 Nagle CJ at CL and Yeldham J made reference to previous observations (by Begg and Cross JJ) in R v Burke (CCA (NSW) 30 November 1978 unreported) where their Honours expressed their concern at, and disapproval of, what they saw as "the increasing practice of ignoring the time stipulation of the Criminal Appeal Act, apparently on the assumption that this court will, in all cases, extend the time for filing a proper notice of appeal...". Having observed that "too much laxity should not be tolerated by the court, unless solid grounds are shown for an extension of time", their Honours said (at 148): "On many occasions it has been observed by Courts of Criminal Appeal that intending appellants should not assume that delays in filing notices of appeal or applications for leave to appeal, and especially considerable delays, will be automatically excused...This court takes the opportunity to emphasise again that it should not be assumed that a failure to give notice of appeal, or notice of intention to appeal, or to furnish proper grounds of appeal, within time, will be excused. Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed". 22These principles were more recently affirmed by Johnson J (with whom Allsop P and Kirby J agreed) in Edwards v R [2009] NSWCCA 199 at [8] and following. His Honour observed that the court will usually require some satisfactory explanation as to why an appeal was not brought within the time allowed, especially if the delay is considerable (as to which see R v Beattie [2000] NSWCCA201 at [17]). Amongst the principles referred to by his Honour was that of finality of litigation (at [13]): "The principle of finality of litigation is relevant on an application such as this. Although it may be, as here, that the Crown cannot point to any actual prejudice because of the delay in bringing the application, there is public interest in avoidance of delay, and the finality of litigation, in the area of sentencing, as with litigation generally. In many cases, the prospect of sentence being re opened long after the event may impact adversely upon victims of crime." 23In view of the nature of the applicant's offending in the present case, his Honour's observations as to the potential adverse impact upon the victims of that offending, brought about by the prospect of sentence being re-opened, are particularly relevant. 24In Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138 Campbell JA (at [24]; 144) confirmed that the principles of finality applied to applications to extend the time for appeal against sentence. His Honour went on to say: "As well, when a time limit has been laid down through legislation, it would be subverting the intention of the legislation for this Court to consider the matter as though it were an application for leave to appeal against sentence brought within time, and if such an application would succeed, regard that as a sufficient reason for extending the time. I recognise that 'exceptional circumstances' are not, in so many words, expressly made part of the statutory scheme for granting an extension of time to appeal (Arja v The Queen [2010] NSWCCA 190 at [4] - [5], cf McCall v The Queen [2010] NSWCCA 174 at [5] - [7]). Even so, it seems to me that the need to give weight to the factors I have just mentioned in operating the statutory scheme must call for something beyond the presence of factors that would be sufficient to result in a sentence being varied if an application for leave to appeal against sentence were brought within time". 25However, it obviously remains the case that an individual application for an extension of time must be determined on its own facts. Johnson J in Edwards (supra), having identified the various factors which impact upon the making of that determination, observed (at [18]): "None of these factors constitute a barrier to this court intervening where the justice of the case warrants that course. However, in determining whether an extension of time ought be granted, this court should be alive to factors such as these, as well as the merits of the proposed grounds of appeal." 26For the reasons I have already expressed, the affidavit filed by the applicant in support of his application for an extension of time poses more questions than it answers. In my view, it falls substantially short of what might reasonably have been expected to be provided in circumstances when the period of delay is so substantial. The fact that there are such shortcomings in the evidence, in circumstances where there has been such a substantial delay, is a matter which tends against the Court exercising its discretion in favour of granting an extension of time. 27That said, the issues arising from the sentences imposed upon the applicant are of some complexity. For the reasons more fully set out below, I have concluded that errors on the part of each of the sentencing judges have been made out. It is in these particular circumstances that I consider that there should be an extension of time granted in each case. 28However, I should make it clear that I have reached that conclusion having regard to the circumstances of the present case, and to the particular issues which have arisen consequent upon the sentences which were imposed upon the applicant. My conclusion that an extension of time should be granted should not be regarded as diluting, to any degree whatsoever, the established principles which govern the grant of an extension of time to which I have previously referred.

The facts 29It is relevant to note that in or about 1970 the parents of two of the victims of the child sexual assault offences, became members of the Jehovah's Witnesses Church, of which the applicant was also a member. As a consequence, there was social interaction between the family of those two victims, and the applicant. This constitutes part of the background against which the child sexual assault offences were committed.

Count 1 30In or about 1980, the complainant CT, who was 14 years old at the time, undertook work experience with the applicant, who was a carpenter. Whilst doing so CT and the applicant began talking about relationships. In the course of those discussions, CT expressed some affection for a girl who was a member of the church congregation. The applicant asked CT various matters of a personal nature relating to this girl, and engaged in other conversation of a sexual nature. During the period of one week when CT was with the applicant undertaking work experience, the applicant instructed CT to climb a ladder. As CT did so, the applicant followed him up the ladder and, upon reaching CT, slid his hand up CT's shorts and commenced to rub his penis over the top of his underpants.

Count 2 31In about 1981 CT was assisting the applicant at a work site. The applicant, who appeared to CT to have an erection, began talking about sex and then made CT lie on his back, before squatting in front of him. The applicant then had simulated sex with CT, following which he took CT into the bedroom of the premises at which they were working. The applicant took a pair of stockings from the bedroom and instructed CT to put them on. CT did so, following which the applicant told him to lie on the bed. The applicant then masturbated CT through the stockings until CT ejaculated.

Count 3 32On or about 25 April 1987 NT, who was then about 14 years of age, attended a building site at which the applicant was working and assisted the applicant with various jobs. Following the incident which forms the basis of item 2 in the Form 1 the applicant told NT to suck his penis. When NT said that he did not want to the applicant said to him: "This is how you become a man". 33The applicant then took the back of NT's head, pushed it down onto his penis, and forced NT's mouth up and down his penis for about 1 minute.

Count 4 34On a Saturday in or about July 1987, when at the home of NT, the applicant said to him: "Come into the laundry with me". 35NT followed the applicant into the laundry where the applicant unzipped his pants, took NT by the head, and pushed NT's mouth onto his penis. He then pushed NT's head up and down on his penis for approximately 1 minute until he ejaculated into NT's mouth. As NT pulled away, semen fell from his mouth onto the floor, and the applicant wiped it with his boots. NT then ran straight into his bedroom.

Count 5 36Approximately one week after the events which form the basis of count 4, the applicant was again at NT's home and said to NT: "Come into the laundry". 37Once the applicant and NT were in the laundry the applicant said: "Can I suck your dick?" 38NT then unzipped his pants and took his penis out. The applicant fellated NT, until NT ejaculated.

Count 6 39Following the events which form the basis of count 5, the applicant and NT left the laundry, at which time the applicant suggested that they go for a bicycle ride. NT then rode his bike and met the applicant near Corrimal Beach. As they were riding towards the beach the applicant said to NT: "Do you like masturbating? Have you ever put a sock over your penis and come into it? Lets go over the sand hills, I can show you how to make babies". 40Upon stopping at the beach, the applicant removed a towel from a back pack, and having laid it on the sand said to NT: "Take your clothes off". 41NT took his clothes off, following which the applicant pushed him onto the towel and then removed his shorts and shirt. The applicant lay on top of NT with an erect penis before lubricating his penis with saliva and placing it into NT's anus. The applicant placed his hands over NT's mouth to stop him from screaming. NT later said the pain was excruciating. 42After approximately 20 to 30 seconds the offender removed his penis from NT's anus. After NT had got dressed the applicant said to NT: "What we have just done is very wrong". 43NT took his bike and hid in the bushes until the applicant left, before riding home in pain.

Count 7 44Approximately three weeks following the events which form the basis of item 7 on the Form 1 JK and the applicant were having lunch at the building site where they were working. The applicant approached JK, put his right hand on JK's chest, and unzipped JK's shorts with his left hand. He then commenced to masturbate JK until he ejaculated.

Count 8 45Two weeks following the events which form the basis of count 7, the applicant was driving JK home from work. During the trip home, JK fell asleep and woke with the offender masturbating him. Although JK pretended to remain asleep, the applicant continued masturbating JK until he ejaculated.

Additional items on Form 1 46In addition to the child sexual assault offences summarised above, there were an additional 7 matters which the applicant asked to be taken into account on a Form 1. The facts of these matters were also detailed by the sentencing judge and may be summarised as follows.

Item 1 47Following the events which form the basis of count 1, CT got down from the ladder. He went looking for the applicant and found him in an adjoining doorway with his penis in his hand, and masturbating. The applicant continued to masturbate in front of CT until he ejaculated. On another occasion CT was up the ladder and when he came down the applicant came up behind him and gave him a bear hug. He put his arms around the front of CT and then put his hand onto CT's penis and masturbated it on the outside of his shorts.

Item 2 48NT attended a building site at which the applicant was present, following which NT went with the applicant to collect some equipment from a hire company. On the way to the hire company, the applicant stopped his vehicle by the side of the road and said to NT: "Show me your penis so I can check to see if you have got pubic hair". 49NT did as he was told and opened his shorts to reveal his penis. The applicant then said: "Do you want me to show you how to become a man?" 50The applicant then removed his penis from his pants and said to NT: "Play with it, rub it". 51NT did as he was told to do.

Item 3 52Following the events which form the basis count 3, NT removed his head from the applicant's penis. The applicant then said to him: "Can I do it to you?" 53The applicant then fellated NT.

Item 4 54Following the events which form the basis of item 3, the applicant said to NT: "Pull me off then". 55NT proceeded to masturbate the applicant until the applicant ejaculated. At the same time the applicant said: "Play with yourself". 56NT did so, obtained an erection, and ejaculated. The applicant obtained a handkerchief and wiped himself and NT with it, before returning NT home to his parents.

Item 5 57Following the events which form the basis of count 5, NT fellated the applicant. The applicant did not ejaculate on that occasion.

Item 6 58In about 1989 JK commenced working for the applicant. During their lunch breaks, the conversation between JK and the applicant would always turn to sex. The applicant asked JK: "Do you have wet dreams? Do you wank yourself? Do you look at porno mags and do you watch porno movies?" 59On one afternoon when JK and the applicant were at work, the applicant said to JK: "Stay at my place Sunday night, we have an early start, 6:30." 60The applicant told JK that his wife and children would be present at home and that his wife would make dinner. However, when JK arrived at the premises on the Sunday evening the applicant was present on his own. The applicant told JK on that occasion that his wife had gone to Wollongong to see her father. The applicant arranged for JK to sleep in his (i.e. the applicant's) bed and told him that he himself would sleep on the lounge. JK went to sleep in the bed and during the night woke to find the applicant beside him fondling his penis.

Item 7 61On the morning following the events which form the basis of item 6, the applicant told JK to get up a ladder. JK climbed the ladder whilst the applicant held it at the bottom. As JK climbed further up the ladder the applicant followed him and once he got closer to JK the applicant placed his hand up JK's shorts inside his underpants and touched him on the penis.

The sentence proceedings 62At the outset of the sentence proceedings, his Honour made reference to the fact that although the applicant had pleaded guilty to each of the child sexual assault offences, he had not done so at the first available opportunity. He noted that not only had the pleas of guilty been entered after prolonged negotiations with the Crown, the applicant had made an unsuccessful attempt to withdraw them after they had been entered. His Honour concluded that such a course of conduct did "not betoken a significant attempt to assist in the processes of justice". He identified the utilitarian value of the pleas as being between 5 and 10 percent. Having regard to the sentences ultimately imposed by his Honour, the discount which was applied was slightly in excess of 8 percent. 63Having recounted the facts, his Honour made reference to the applicant's criminal history which included the previous offences for which he was sentenced in 2000. He observed, correctly, that those matters were "distressingly similar" to the child sexual assault offences for which the applicant was to be sentenced. He also observed that in both instances of offending the applicant had engaged in a process of grooming the victims through the church of which he was a member, before gradually engaging in, and escalating, the sexual abuse of those victims, all of whom were young teenagers. He concluded that the applicant's commission of the child sexual assault offences displayed a high degree of criminality. 64His Honour then turned to the subject of delay, and concluded that the applicant should not receive any consideration for the delay which had been occasioned in the course of the offences being revealed, and then prosecuted. Having made reference to the harm occasioned to each of the victims, his Honour concluded that significant punishment was required in order to meet the needs of the community, and the law. 65His Honour then turned to the applicant's subjective case. In circumstances where the applicant had not given evidence on sentence, his Honour reached a number of conclusions based upon a pre-sentence report which was before him, culminating in a finding that various aspects of the applicant's background had contributed to the applicant being "a damaged human being who will require considerable treatment, supervision and support, both within the prison system and after his release". His Honour then made reference to the principle of totality, before concluding that although the applicant was no doubt trusted by his victims and their families, he did not regard the applicant to have been placed in a formal position of trust. He then proceeded to impose the sentences which I have previously outlined.

Ground 1 - The learned sentencing judge did not properly apply the principle of totality. 66In the course of his reasons, and having turned to the subject of delay, the sentencing judge said: "The offender should not receive any consideration for the delay in these matters being revealed and prosecuted. He had the option, of course, of bringing these matters to a conclusion back in 2000 at least, when charged with offences against other boys, including the brother of two of these victims...In this case, the fact that the offender has debauched all three sons of the one family has added an extra dimension of damage." 67His Honour went on to say: "I have endeavoured, as is required by R v Pearce and R v Hamoud, to identify the criminality of each offence and to fix a sentence appropriate to that assessment. It is in my view important that each victim sees that some of the time to be spent in prison is referrable to the harm done to him personally by the offences of the prisoner. However, when looking at the matter overall, there is necessarily a very considerable telescoping of the individual sentences to accord with the principle of totality." 68The applicant submitted that his Honour erred in failing to have regard to the totality of the applicant's offending behaviour. Such error was said to have arisen from his Honour's approach and, in particular, from his failure to consider an appropriate sentence having regard to the applicant's overall criminality, arising from both the child sexual assault offences which were before him, as well as from the previous offences for which he was sentenced in 2000. 69In support of these submissions, the applicant relied, in part, upon the judgment of this Court in R v Todd [1982] 2 NSWLR 517, a case in which an offender had been sentenced in New South Wales some years after the commission of an offence, and where, in the intervening period, he had been serving a sentence in another state in respect of an offence of the same nature, and committed at about the same time. Street CJ, with whom the other members of the court agreed, observed (at 519-520): "It would be wrong, in my opinion, to disregard the practical situation that the appellant has already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. Within a space of some eight days the appellant committed the Sydney crimes and the Queensland crimes.... It would be both relevant and material to pay regard to the totality of the imprisonment being visited upon the appellant in consequence of the totality of his criminality over this period of 8 days of committing offences of similar character...Where there has been lengthy postponement whether due to an interstate sentence of otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence," (emphasis added). 70Subsequently in Mill v R (1988) 166 CLR 59 the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) concluded (at 65-66) that the reasoning in Todd was correct. The court concluded that such reasoning reflected a principled approach to sentencing where an offender came to be sentenced many years after the commission of an offence due to the fact that in the intervening period, he had been serving a sentence imposed for other offending which was closely related in time. 71In Wu v R [2011] NSWCCA 102 Giles JA, having referred Todd, said (at [18]): "A number of different considerations are found in R v Todd. One is regard to totality notwithstanding that the offender is sentenced for one of a number of similar offences committed at about the same time separately from, and later than, his sentencing for the other offences. Others are regard to the offender's state of uncertainty while the sentencing is delayed, and regard to the progress of the offender's rehabilitation during the period of delay," (emphasis added). 72In the present case, the previous offences were not closely related in time to the commission of the majority of the child sexual assault offences. A chronology provided for the purposes of this appeal shows that the previous offences were committed between about 1978 and 1980. Although counts 1 and 2 of the child sexual assault offences were said to have occurred in about 1980 and 1981 respectively, the balance (counts 3 to count 8) occurred between about April 1987 and December 1989, some considerable time later. Accordingly, and unlike the situation to which the observations in Todd, Mill and Wu were directed, this was not a case where the child sexual assault offences were committed at or about the same time as the previous offences. 73In respect of the sentencing judge's finding that the applicant had the option of bringing the matters to a conclusion in 2000 but did not do so, counsel for the applicant referred to the decision in Wu (supra) where Giles JA observed: "[52] Application of totality principles is not a matter of leniency. While failure to volunteer commission of the offence may mean that the offender is not entitled to some favourable or fully favourable considerations in the sentencing, it does not deprive the offender of the recognised sentencing principle that, after arriving at appropriate individual sentences, the court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. If it did, there could be conflict with the fundamental right to remain silent. [53] The cases have well recognised that totality principles are applicable where there is separate and later sentencing for one of a number of offences of a similar character committed in the same episode of criminality, beyond where the delay was due to an interstate element or otherwise because of the operation of the criminal justice system...Consistently with the cases, and correctly as a matter of principle, in my opinion totality principles are applicable although the separate and later sentencing is because the offender remains silent, and was charged and then came to be sentenced when the police subsequently were in a position to bring the charge (emphasis added)." 74As I have already pointed out, the previous offences had been committed some 7 years before the majority of the child sexual assault offences. Accordingly, they could not be regarded as part of the same episode of criminality. 75His Honour was required to consider the totality of the criminal behaviour arising from the child sexual assault offences which were before him. In my view, it is evident that he did so. In particular, he made specific reference to totality principles, and to the relevant authorities, in the course of his reasons. 76In these circumstances, the error asserted by the applicant in ground 1 is not made out.

Ground 2 - The learned sentencing judge erred in taking into account the record of prior convictions as an aggravating factor. 77This ground was abandoned at the hearing.

Ground 3 - The learned sentencing judge erred in refusing to find special circumstances. 78It was put to his Honour by the applicant's representative on sentence that a finding of special circumstances should be made, in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act, on the basis of: (i)the nature of the offences and the fact of accumulation; and (ii)a need for extended supervision to assist the applicant in reintegrating into the community upon his release. 79It should be noted, particularly in light of some of the matters raised in support of ground 4, that no submission was made by the applicant's representative on sentence that a finding of special circumstances should be made on the basis of the sentencing practice which operated at the time of the offending. 80In respect of the issue of special circumstances his Honour said: "I note that the offender himself has not given evidence but from the history provided to the officer preparing the pre-sentence report and to the psychologists who assessed him (supported by an affidavit by his mother) I accept that the offender was himself abused as a child. I accept the analysis contained in the psychologist's report that the offender had a 'disrupted and very dysfunctional upbringing permeated by violence, abandonment and sexual assault'. This may at least in part explain his actions but it does not excuse them. That background has contributed to a damaged human being who will require considerable treatment, supervision and support both within the prison system and after his release. I have not, however, made any adjustment to the proportions of his sentence other than that made necessary by virtue of accumulation because the period of his parole is itself long enough to allow for adequate supervision and support without lengthening it further by reducing the time to be spent in custody." 81In Clarke v R [2009] NSWCCA 49 McClellan CJ at CL (with whom James and Adams JJ agreed) observed (at [13]): "...The extent of any adjustment to the statutory requirement is essentially a matter within the sentencing judge's discretion. In R v Cramp [2004] NSWCCA 264 at [31] Spigelman CJ said that an adjustment for special circumstances 'raises so many matters of a discretionary character that this Court should be very slow to intervene'. Only if the non-parole period provided is manifestly inadequate or manifestly excessive should this Court intervene: Cramp at [36]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19]." 82It is evident from his reasons that his Honour recognised the need for the applicant to undertake treatment, and to be afforded supervision and support. His Honour did not restrict this need to a time after the applicant's release, but observed that such treatment, supervision and support would be required within the prison system as well. 83It is also evident that the principal reason for his Honour declining to make any adjustment between the non-parole period and the parole period was because he had formed the view that the parole period was, of itself, long enough to allow for adequate supervision and support. Although he did so, his Honour was not required to give reasons in that regard (see Ha v R [2010] NSWCCA 83 at [69] per Beazley JA (with whom Howie and Hislop JJ agreed). 84In my view, there is nothing within his Honour's reasons which would suggest that his discretion miscarried. Moreover, and for the reasons more fully set out in association with my consideration of ground 4, this is not, in my view, a case where the non-parole period which was imposed upon the applicant was manifestly excessive. 85I therefore reject this ground of appeal.

Ground 4 - The sentence imposed is manifestly excessive having regard to the sentencing practice at the time of the offending. 86The child sexual assault offences were committed against CT between about 1979 and 1981, against NT between about April 1987 and August 1987, and against JK between about January 1989 and December 1989. It was not until February 2006 that the applicant was arrested in respect of these matters and it was not until 27 November 2008 that he was sentenced. A significant period therefore elapsed between the time of the offending, and the date on which the applicant was sentenced. 87At the time of the commission of the child sexual assault offences the question of parole was governed by statutory regimes contained within the Parole of Prisoners Act 1966 and the Probation and Parole Act 1983. Subsequently, the Sentencing Act 1989 was passed which prescribed a statutory ratio between the head sentence and non-parole period. 88In the present case, it may be arguable that counts 7 and 8 of the child sexual assault offences (which were said to have occurred between 1 January 1989 and 31 January 1989) would, had the applicant been sentenced closer to the time of the offending, have attracted the provisions of the Sentencing Act 1989. It is evident from the terms in which the charges were pleaded that the Crown could not be precise as to the dates on which those offences occurred. However, there is no issue that counts 1 to 6 were committed prior to the introduction of the Sentencing Act, and therefore at a time when a non-parole period was fixed at somewhere between one third and one half of the term of the sentence. 89In these circumstances, it was submitted on behalf of the applicant that the sentencing judge erred in failing to sentence the applicant according to the sentencing practices which existed at the time of his offending. It was submitted by the applicant that his Honour erred, in particular, by failing to apply the ratio as between the head sentence and non-parole period which existed at the time of the offending. These errors, it was submitted, resulted in a sentence which is manifestly excessive. 90The approach to be taken by a sentencing judge when sentencing an offender in respect of conduct which occurred a considerable period of time before has been the subject of much authority in this Court. The principle was succinctly stated by Hoeben J (as his Honour then was) in Mottram v Regina [2009] NSWCCA 210 at [41]-[42]: "[41] It has now been accepted by this Court in a number of cases that in relation to offences which occurred during the 1970's and 1980's, with the absence of any statutory restriction on the length of a non-parole period, a sentencing practice had arisen of sentencing the non-parole periods at somewhere between one third and one half of the term of the sentence: MJL v R [2007] NSWCCA 261; Featherstone v R [2008] NSWCCA 71; CPW v R [2009] NSWCCA 105; GRD v R [2009] NSWCCA 149; PH v R [2009] NSWCCA 161). All these cases have referred with approval to the passages in AJB v R relied upon the applicant. [42] It is clear that a matter which his Honour should have taken into account when sentencing the applicant for these offences which occurred between 1972 and 1985 was this practice." 91One of the passages in AJB v R [2007] NSWCCA 51 to which his Honour referred was that of Howie J (at [37]): "It seems to me that this Court should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant. It can do so on the basis that special circumstances under s 44 are to be found in the fact that there was a different sentencing practice in relation to fixing a non-parole in 1982 which did not require a finding of special circumstances in order to avoid a statutory relationship between the non-parole period and the balance of the term." 92In the present case, the issue of the sentencing practice which existed at the time of the offending was not raised by either party before the sentencing judge. As a result, the sentencing judge was not taken to any of the authorities referred to by Hoeben J. On the hearing of the appeal there was no dispute as to the range of the length of non-parole period which was generally imposed prior to the introduction of the Sentencing Act. 93The sentencing judge should have taken into account the fact that at the time of the offending, and in the absence of any statutory restriction being placed upon the length of a non-parole period, the practice was to set a non-parole period between one third and one half of the term. In my view, his Honour's failure in this respect amounts to error, although I must emphasise again that he was not assisted by any submission made to him at the time as to the correct approach, and was not taken to any of the authorities which are now relied upon by the applicant. 94However, even where such error has been established, the question of whether or not the court should intervene is an entirely separate one. As Hoeben J pointed out in Mottram (supra) at [43] once an error of this type is identified, it is not simply a process of proceeding to adjust the sentences which were passed at first instance in order to reflect the practice which existed at the time. 95There have been instances (the decision in Mottram being one) in which this Court has declined to intervene, notwithstanding the identification of an error of the kind made by the sentencing judge in this case. There have been other instances in which this Court has found error and has intervened by imposing, in accordance with the sentencing practice at the time of the offending, a non-parole period which is less than half of the full term (see Rosenstrauss v R [2012] NSWCCA 25). On other occasions, the Court has found error and has intervened but in doing so has not adjusted the non-parole period to the extent of fully reflecting the sentencing practice which applied at the time of the relevant offending (see for example CPW v R (2009) 159 A Crim R 149; GG v R (2010) 204 A Crim R 125). 96Section 6(3) of the Criminal Appeal Act 1912 is in the following terms: "(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal. " 97The opinion to which the section refers, namely an opinion "that some other sentence whether more or less severe is warranted in law and should have been passed" is an essential pre-condition for the exercise of the power for which the section provides. Unless such an opinion is reached, then that essential pre-condition is not satisfied (see R v Simpson (2001) 53 NSWLR 704). 98In Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Spigelman CJ considered the meaning of the words "warranted in law" as they appear in the section and said: "[18] In these circumstances the phrase 'warranted in law" should be understood as a reference to the entire body of legal rules that inform the exercise of a sentencing discretion, i.e. both statutory requirements and sentencing principles developed at common law. [19] The import of paragraph [79] of Simpson was to ensure that submissions in the Court of Criminal Appeal did not proceed as if the identification of error created an entitlement on the part of the applicant to a new sentence, for example, by merely adjusting the sentence actually passed to allow for the error identified. That would be to proceed on the assumption that the sentencing judge was presumptively correct, when the court has determined that the exercise of the discretion had miscarried. Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides." 99In the present case, the child sexual assault offences committed by the applicant constituted, on any view, serious criminal conduct. As his Honour observed, the applicant engaged in a pattern of behaviour which involved initially grooming the various victims, before engaging in a broad range of offending conduct which escalated, in one instance, to an act of anal intercourse. There were multiple victims, all in their mid teens. 100In my view, all of these factors mandated the imposition of a significant term of imprisonment. Considerations of both general and personal deterrence were paramount considerations in the sentencing process. 101In Power v The Queen (1974) 131 CLR 623 it was made clear that a non-parole period which is imposed in any given case represents the minimum period of imprisonment which is required to be served by an offender having regard to all of the purposes of punishment, including deterrence. As I have already observed, questions of both general and personal deterrence were matters of obvious significance in the circumstances of the present case. 102Having regard to all of these matters, and notwithstanding the error which has been established, I am not of the opinion that some other sentence was warranted in law and should have been passed upon the applicant. I do not regard the sentence imposed by his Honour as one which was manifestly excessive. 103I would therefore dismiss this ground of appeal.

The facts 104The applicant was arrested and charged with the child pornography offence at the same time as being charged with the child sexual assault offences. At that time, he was operating a service station just outside the township of Cooma, at the rear of which was a small house in which he resided. When police attended the premises they executed a Search Warrant and seized three computers, one from the lounge/kitchen area of the premises. During his trial, and immediately before his re-arraignment and plea of guilty, the applicant's daughter had given evidence before the jury that the applicant was the only person within the household who used that particular computer. 105An analysis of the computer's hard drive revealed a total of 31 images of young males engaging in varying degrees of sexual behaviour, ranging from posing and kissing, to engaging in sexual intercourse. In relation to those images which depicted kissing, the estimated age of the males was between 9 and 10 years, whilst those who were depicted in engaging in sexual intercourse were estimated to be between 14 and 15 years of age. 106In addition to the images was a video of a male, estimated to be about 14 years of age, who was masturbating.

The sentence proceedings 107The sentencing judge concluded that the limited number of images, their nature, and the ages of the children who were depicted in them, placed the offence (in comparison with others of a similar nature) below the mid range of objective seriousness. He also noted that there was no evidence that the applicant had the images in his possession for sale or distribution, or that he sought to profit from his commission of the offence. 108His Honour then turned to the subjective factors which were largely set out in a pre-sentence report which had been tendered. He had regard to the applicant's history of sexual offending, including the child sexual assault offences (for which he had, by that time, been sentenced). His Honour also took into account the fact that the applicant had ultimately entered a plea of guilty. Having regard to the time at which that plea had been entered, allowed a reduction of 5 percent. 109His Honour noted that when previously incarcerated for sexual offences, the applicant had not availed himself of any therapeutic programs whilst in custody. This, he said, was to be contrasted with the evidence before him that the applicant had now expressed a willingness to engage in such programs. His Honour regarded this as evidence of a willingness to address, albeit belatedly, what he described as the applicant's "underlying problems". His Honour also made reference to what he identified as a need for specific deterrence because the applicant had been a "serial offender" in the past. 110His Honour concluded that the principle of totality was relevant, and that there was no utilitarian benefit in the applicant serving another lengthy period of incarceration cumulative upon the sentences previously imposed. He observed that because any period of parole he might otherwise impose "would be subsumed" in the parole period imposed for the child sexual assault offences, he did not propose to impose such a period. He proceeded to sentence the applicant to a fixed term of imprisonment of 20 months to commence on 1 December 2014, some 5 months prior to the earliest date for his release in respect of the sentences for the child sexual assault offences.

Ground 1 - The learned sentencing judge was mistaken as to the maximum penalty for the offence 111At the commencement of his reasons, the sentencing judge said: "The offender is before me today having pleaded guilty on 28 July 2009 to one offence of possessing child pornography contrary to s. 91H of the Crimes Act 1900. The offence carries a maximum penalty of ten years imprisonment. It does not attract a standard non-parole period". 112It is common ground between the parties that having regard to the legislative history of s 91H of the Crimes Act under which the applicant was charged, the maximum penalty was in fact 5 years imprisonment. It follows that error has been established. In my view, that error justifies a grant of leave to appeal (as to which see R v Kairouz [2005] NSWCCA 247 at [24] per Wood CJ at CL). However, whether the error justifies intervention by this Court is, once again, a separate question. 113In Baxter Latham J observed (at [83]): "An error is a 'material error' if it has the capacity to infect the exercise of the sentencing discretion, regardless of whether it can be demonstrated that the error has in fact influenced the sentencing outcome. It is an error in the House v The King sense because the sentencing judge has taken into account an erroneous or irrelevant consideration. However, the error must be more than 'trivial' or 'immaterial': R v Jeremy Paul Price [2005] NSWCCA 285 at [56]; see also Phillip Edward Smith v R [2007] NSWCCA 138 at [30] to [34]". 114Her Honour went on to say (at [85] -[86]): "It is only where the error can be seen to be material that s. 6(3) is enlivened and the evidence of post - sentence conduct, if any, falls to be considered by this Court in determining whether some lesser sentence is warranted in law. Of course, the materiality of the error says nothing about whether the error has in fact operated upon the sentencing discretion. Ultimately, this Court may determine that the error did not have that effect and that the additional material placed before the Court does not warrant a lesser sentence than was imposed below. Simpson J (with whom Johnson J and Rothman J agreed) in R v Price [2005] NSWCCA 285 said as much at [55]:- It may be that in order to form an opinion that 'some other sentence ... should be passed' the Court must form the opinion that the identified error was, or the identified errors were, such as to lead to the conclusion that they in fact infected or affected the end result, that is, the sentence selected ". 115More recently, in Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 (a case in which the error of the sentencing judge was of the same nature as that in the present case) RA Hulme J observed (at [70]): "It is not necessarily the case that an error by a sentencing judge as to the applicable maximum penalty for an offence will result in an appeal being upheld ... The question is whether the court is 'of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed': s. 6(3) Criminal Appeal Act 1912". 116It is also important to bear in mind that it is not necessary for the applicant to establish that the sentence is manifestly excessive in order to succeed on this ground (see Baxter (supra) at [11] - [14] per Spigelman CJ; see also Minehan (supra) at [71] per RA Hulme J). 117Having found error, I have considered the question of whether some other sentence is warranted in law and should have been passed in my consideration of ground 3.

Ground 2 - His Honour erred in not fixing a non-parole period 118In the course of reaching his conclusions, his Honour said: "When previously incarcerated for sex-related offences the offender did not avail himself of any therapeutic programs available in custody. This time the Probation and Parole Service Report records that the offender has been placed on the wait list for a sex offender preparatory program which is offered at the Junee Correctional Centre. The offender indicated to the Probation and Parole Service that he is willing to engage in the CUBIT sex offender program and the Probation and Parole Service Report stated that a referral to that end would be made to the offender's program unit upon completion of the preparatory program. I consider this willingness, if belatedly, to address his underlying problems to be a special circumstances (sic) and to his credit". 119His Honour then proceeded to impose the fixed term of imprisonment to which I previously referred. 120It was submitted on behalf of the applicant that his Honour's reference to "special circumstances", coming as it did immediately after reaching a conclusion favourable to the applicant regarding his efforts at rehabilitation, amounted to a finding in terms of s. 44(2) of the Crimes (Sentencing Procedure) Act 1999. Accepting that to be the case, it was submitted that the sentence imposed upon the applicant by his Honour was inconsistent with such finding. In my view, those submissions should be accepted. The construction of his Honour's reasons which has been advanced by the applicant is, in my view, the only reasonable construction which is open. His Honour's imposition of a fixed term of imprisonment, and the absence of any variation to the statutory ratio when the sentences are considered as a whole, are inconsistent with his finding of special circumstances. 121For these reasons, the error asserted in this ground is made out. Once again however, I have dealt with the question of whether some lesser sentence was warranted in law and should have been passed in my consideration of ground 3.

Ground 3 - The sentence imposed is manifestly excessive 122On behalf of the offender, the court was taken to relevant sentencing statistics for offences of this nature which, it was submitted, established that the sentence imposed upon the applicant was greater than the non-parole period imposed upon the majority of offenders. Whilst this may be so, the same statistics also demonstrate that in the case of those offenders sentenced to full time custody for matters of this nature, total terms of up to four years imprisonment were imposed. These matters again highlight the fact that statistics presented in such a form are of limited use (see R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J (with whom Beazley JA and Johnson J agreed). 123Counsel for the applicant also relied upon two previous decisions of this Court. It was submitted that a comparison of the sentences imposed in those instances with that imposed upon the present applicant demonstrated that the applicant's sentence was manifestly excessive. 124The first decision was R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 in which a term of 18 months imprisonment, with an non-parole period of 12 months, was imposed in respect of an offence of the importation of child pornography. That case involved the importation of two CDs, one of which contained 16 video files, and the other 601 images, of young boys and girls engaged in sexual activity. In dismissing the appeal Johnson J, with whom the other members of the court agreed, concluded that the applicant in that case had not demonstrated that the sentence imposed was manifestly excessive. 125It was submitted in the present case that the objective seriousness of the offending in Gent was greater than that of the applicant. 126The second decision was that of R v Saddler (2009) 194 A Crim R 452; [2009] NSWCCA 83 in which the applicant was charged with three counts of possessing child pornography. The first count related to the possession of 19,030 images of child pornography, the second to the possession of 15,400 images, and the third to 1,690 images. At first instance, the applicant in that case was sentenced to 5 years imprisonment with a non-parole period of 3 years and 6 months in respect of count 1, and a head sentence of 3 years and 9 months with a non-parole period of 2 years on each of counts 2 and 3. The overall sentence was one of 6 years imprisonment with a non-parole period of 4 years and 6 months. On appeal, this Court reduced the head sentence in respect of count 1 to one of 4 years with a non-parole period of 2 years and 9 months. The total sentence was reduced to one of 5 years imprisonment with a non-parole period of 3 years and 9 months. 127Counsel for the present applicant emphasised the fact that the number of images of which the applicant in Saddler was found to be in possession was substantially greater than the number found in the possession of the present applicant. 128In Gent the applicant had no prior convictions whatsoever and had pleaded guilty at an early stage which entitled him to a significant reduction in his sentence. In Saddler, whilst the applicant did have a criminal history, it was not of a kind which bore any similarly to the offences for which he was sentenced. Moreover, he had entered a plea of guilty before the Local Court and was therefore afforded the benefit of a reduction of 25 percent from what would otherwise have been the appropriate sentence. 129Similar observations are not open to be made, in respect of either the criminal history or the plea, in the case of the present applicant. 130Firstly, the applicant's commission of the child pornography offence came against a background of offending in a manner which exhibited an illegal sexual interest in teenage boys. The fact that the applicant had committed that offence, whilst on parole for the previous offences indicated that such illegal interest, far from having abated, had assumed a new dimension. Those circumstances pointed, amongst other things, to a need for specific deterrence. 131Secondly, the applicant's plea of guilty, far from being entered at an early stage, came after the commencement of his trial and immediately following evidence being given by his daughter as to his exclusive operation of the computer on which the images were found. He was therefore not entitled to any significant reduction in sentence to reflect the utilitarian value of his plea. 132In attempting to draw comparisons between cases in this fashion, it is necessary to bear in mind the importance of considering the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case. The two matters to which I have referred, and which differentiate the present case from those upon which the applicant relied, serve to demonstrate that care must be taken when engaging in comparative exercises of this kind (see for example Han v R [2009] NSWCCA 300 per Campbell JA at [2] and Rothman J at [34]; R v Hili; R v Jones [2010] HCA 45; 242 CLR 520 at [53] - [56]). 133It is correct, as counsel submitted, that the applicant's commission of the child pornography offence did not involve (as all of his previous offending did) actual sexual interference with children. However, that does not lead to a conclusion that an offence of possessing child pornography is not serious. Persons such as the applicant, by choosing to possess such material, necessarily instigate its production and distribution. Both the production and distribution of child pornography can involve direct child abuse in one form or another (see R v Stroempl (1995) 105 CCC (3d) 187, cited in R v Gent (supra)). 134Viewed in this way, the possession of such material is an important contributing element to the general problem which exists in the community arising from the creation and distribution of child pornography. Those who possess such material necessarily play a pivotal role in creating a market for it. For this reason, as well as a number of others, it has been recognised that general deterrence is a significant consideration in matters of this nature (see Gent (supra) at [68] per Johnson J; see also Minehan (supra) at [97] per R A Hulme J). 135The applicant's commission of the child pornography offence is the most recent in a pattern of offending which commenced some years ago. As I have expressly acknowledged, unlike his previous offending, it did not involve the physical sexual interference with children. However its commission, particularly at a time when the offender was still on parole for the previous offences, reflects a degree of recidivism as far as his criminal sexual interest in children is concerned. Persons who yield to such an interest, particularly if they have a history of doing so in one form or another, should expect significant punishment. 136For these reasons, and notwithstanding the identified errors on the part of the sentencing judge, I am not satisfied that any lesser sentence was warranted in law and should have been passed. 137For the same reasons, I am not satisfied that the sentence imposed upon the applicant in respect of the child pornography offence is manifestly excessive. 138Accordingly, this ground is not made out.

CONCLUSION 139I propose the following orders in each case: (i) extend the time in which to file a notice of intention to seek leave to appeal; (ii) grant leave to appeal; (iii) dismiss the appeal.

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. Decision last updated: 15 November 2012