W C B v The Queen [2010] VSCA 230

Court of Appeal (Vic)|2010-09-10|Before: WARREN CJ and REDLICH JA

R v WCB (Unreported, County Court of Victoria, Judge Punshon, 14 December 2007)

CRIMINAL LAW - Sentence - Sexual penetration of a child under 16 - Community expectation as to length of sentence - Inadequate reporting of sentencing in commonly occurring crimes including sexual offences against children - Misconceived public perception that sentences too low - Danger of selective publicity inviting reasoning from a particular sentence to the general - Authority of principle of general deterrence undermined - Need for public awareness about sentences - Whether risk that sentencing judge fixed more severe sentence to accord with community expectation - Expectations of 'informed' and objective members of the public a proper sentencing consideration - Sentence to vindicate and reaffirm society's values - Prosecutor's obligation to make submissions as to range - ; applied - Whether offending conduct warranted placement of offence at upper end of the most serious category of the offence - Sentence manifestly excessive - Appellant re-sentenced

1 The appellant pleaded guilty in the County Court to one count of sexual penetration of a child under 16 and two counts of committing an indecent act with or in the presence of a child. The offences were committed against two victims, a ten year old girl whose mother had a close relationship to the appellant and an eight year old girl who was her school friend. The sentencing judge sentenced the appellant as follows:

Count 1 Sexual penetration of a child under 16 7 years imprisonment

Count 2 Indecent act with a child under 16 2 years imprisonment

Count 3 Indecent act with a child under 16 2 ½ years imprisonment

2 The learned sentencing judge ordered that one year of count 2 and 15 months of count 3 be served cumulatively upon the sentence imposed on count 1 making a total effective sentence of nine years and three months' imprisonment. A non-parole period of six years and six months' imprisonment was fixed.

3 The appellant now appeals against the sentence imposed on the following grounds:

The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
The sentences imposed by the Judge fail to properly reflect his stated intention of regarding the applicant's pleas of guilty as 'requiring a real reduction in penalty' (Sentence [16]).
The learned sentencing judge erred in sentencing the appellant on the basis that 'The community would expect you to be imprisoned for a lengthy period.' (Sentence [12]).
The learned sentencing judge erred in ascertaining the appropriate sentencing range for the offences, in particular count 1, and thereby misapprehended what the relevant sentencing range was for the offences.
The learned sentencing judge erred in failing to make an order as to pre sentence detention.

4 Having regard to the issues raised by these grounds it is necessary to first set out the circumstances of the offending and the personal circumstances of the appellant.

5 The circumstances of the offending are not in dispute on this appeal and are as contained in the reasons of the learned sentencing judge:

...Counts 1 (sexual penetration) and 3 concern a victim who was ten years old at the time. Although she was not a relative of yours, she referred to you as 'grandpa'. This term was used because her mother referred to you and your father as 'mum and dad'. Although this was a courtesy description, it does give some indication of the nature of the relationship you had with the victim and her mother.

This particular victim visited you and your partner at times and stayed with you at your home on occasions. She was so doing on 22 March 2007, the time of Count 1. At the same time of this offence your partner was not at home. The victim had taken a bath. You lifted her out of the bath and set her on the bathroom vanity. You exposed your penis and rubbed it against her vagina and then place[d] it briefly in her vagina. She pushed you away. She told you it hurt. A subsequent medical examination of the victim confirmed trauma to her vagina. What I have just described is the bare bones of the incident and of course I need to be conscious of the entire circumstances.

Count 3 also concerns the same victim. The offending occurred on 31 March 2007. On this occasion she was in your room and you asked her to masturbate you, saying 'wank me'. She refused and you then masturbated in her presence to ejaculation and then wiped yourself on a singlet.

Count 2 concerns a second victim, a child aged eight at the time. This incident occurred in between the previous two incidents. This victim, to whom I will refer as the second victim, was a school friend of the first victim and had been invited to stay overnight at your home, with her friend, on the night of 29 March 2007. After dinner both children accompanied you to your room to watch movie. The three of you lay on your bed with you in between the two girls. During the playing of the movie you reached up under the second victim's top and placed your hand on her left breast. She moved away. It seems that the first victim had fallen asleep when Count 2 occurred.

6 The appellant was aged 66 years at the date of sentencing. He has a long term female partner with whom he resided at the time of the offending. He has some difficulties with his health and suffers from emphysema. He has no relevant prior convictions.

7 Following a complaint the appellant was interviewed by the police. The appellant was co-operative during that interview although he also attempted to attribute blame to the first victim by suggesting that she had instigated and even insisted upon inappropriate sexual contact. When questioned about allegations of inappropriate contact of the second victim he said that the contact was accidental. Later, he was to plead guilty at the committal, an early plea that was recognised by the learned sentencing judge as entitling him to 'a real reduction in penalty'.

8 The issue of rehabilitation was the subject of submissions on the plea. The appellant tendered a report from Forensic Psychologist Mr Jeffrey Cummins. He made a diagnosis of paedophilia and observed that 'in the absence of receiving appropriate treatment, there would be a risk that [the appellant] could offend sexually against other underage and/pre-pubescent females'.

9 As to the question of remorse, the report of Mr Cummins states that the appellant represented that he accepted that his behaviour could have caused upset and anguish to the victims. The report concluded, however, that the appellant was expressing remorse 'to the extent that it was possible for him to do so given the fact that he is at a relatively early stage in the process of coming to terms with being diagnosed as a paedophile'. On the basis of the report and other material the learned sentencing judge appears to have accepted the submission made on behalf of the prosecution that 'identifiable persuasive evidence of concern for the victims seems absent'.

Ground 3 Community expectations as to length of sentence

10 Under ground 3 it was submitted that the learned sentencing judge erred by taking into account an irrelevant consideration, namely that 'the community would expect a lengthy sentence'[1], which may have contributed to the imposition of a sentence that was beyond the permissible range. As will appear, we have concluded that the sentence on count 1 was outside the range, but we reject the contention that this reflected a misapprehension or misapplication of community expectations.

11 The parties were given leave to file further written submissions on this ground. Ultimately, the Director made none. The appellant submitted that 'absent proper research, consultation and evidence', to have regard to such a consideration as community expectation is 'fraught with great difficulty'. It was also said that this was an irrelevant consideration under the Sentencing Act 1991. The submission rests upon the assertion that the sentencing judge was likely to have imposed a higher sentence than was required at law in order to satisfy a public expectation as to the length of the sentence which should be imposed.

12 In summary we have reached the following conclusions with respect to this ground:

(a) There is a misconception prevalent within the public domain that generally, sentences imposed by the courts are too lenient.

(b) The sentencing judge was not adverting to that misconceived public perception in his sentencing remarks.

(c) When members of the public are informed about and objectively assess the matters which are relevant to a particular sentence, including sentencing principles and matters personal to the offender, there is generally little disparity between the sentence which they consider appropriate and the sentence fixed by the court.

(d) The sentencing judge in referring to community expectations was making reference to the expectations of 'informed' and objective members of the public.

(e) A judge may, in his or her sentencing remarks, refer to such community expectations and to the fact that the sentence involves a reaffirmation of society's values.

(f) There is a pressing need for the community to be better informed about sentences imposed in all of the common areas of offending. Discussion about individual sentences can only be placed in a proper perspective if the sentences generally imposed for that type of offence are known by the public.

13 The sentencing judge is not 'cast adrift on an uncharted sea' in exercising the sentencing discretion but is guided by the common law and statute, which require adherence to doctrines and principles that over many years have been found to be best calculated to serve the ends of justice.[2] One of those principles is that of consistency of sentencing - a matter of the first importance to the administration of criminal justice and the maintenance of public confidence.[3] The need for consistency of sentencing was explained by Redlich JA in R v McEachran[4] in these terms:

Consistency in sentencing is a mechanism by which fairness in the sentencing process is to be achieved. It requires that the Court should strive to impose similar punishment for similar offences committed by offenders in similar circumstances. Conversely, disparity in sentencing can only be justified if there are acceptable and convincing grounds for differentiating between offences or offenders. Unfairness will arise where there is an inconsistent application of legal principles. In R v Zakaria, Crockett J considered that previous decisions on sentencing may provide a useful aid in achieving uniformity of sentence for a particular category of crime and may provide a more reliable indication than the statutory maximum as to the appropriate sentence to be applied in a particular case.

14 Submissions on sentencing range are designed to promote consistency of sentencing and to reduce the risk of appellable error.[5] Sentencing judges are not bound by any submission on range and must decide for themselves, in the light of such submissions, what is the appropriate sentence in the circumstances. The question on appeal will be whether the sentence imposed was within the range reasonably available in the circumstances of the case.[6]

Little public knowledge about sentences actually imposed

15 In part, sentencing principles rest upon an assumption that the public is adequately informed about sentencing. We shall later refer to the importance of public awareness if the principle of general deterrence is to have its intended effect. The appellant advanced his argument against the background that the level of public knowledge about sentencing for most categories of crime is seriously deficient. Central to the argument was the notion that the community labours under the misconception that sentences are too soft and demands harsher penalties. Thus it was said that, when his Honour referred to the sentencing expectations of the community, he must have been referring to the perception within the community that sentences should be longer such that his Honour was deflected from imposing a sentence in accordance with sentencing principles.

16 The community is very poorly informed about most sentences that are imposed. Every day many sentences are handed down across the Magistrates', County and Supreme Courts. Only a fraction of these are reported. The Sentencing Advisory Council found that the media reports selectively, choosing stories with the aim of entertaining more than informing, focussing on the unusual, the dramatic, and the violent.[7] The view has been expressed in the United States that economic factors which encourage entertainment increasingly determine the style and content of crime reporting in both television and the print media at the expense of the traditional journalistic criteria of newsworthiness.[8]

17 The Sentencing Advisory Council also found that the community has very little accurate knowledge of crime and the criminal justice system. Of the cases that are reported, a very small number are newsworthy only because they are considered 'extreme' in the sense that they appear on their face to be unusually lenient or stern. Though these sentences are very few by comparison with the large number of sentences that are imposed each year, and about which no criticism could legitimately be made, the bulk of sentences are unknown to the community at large.[9] Whilst the majority of those sentences are concerned with the most commonly committed crimes they receive no public attention or focus. The consequence of all this is the risk of a communal perception that the abnormal sentence is the norm. Too often when a particular case is discussed in the press the mitigating features of the case that led the court to impose the sentence are not identified. Hence there can be no informed public discussion. This fact is recognised in some parts of the media. In an article published in The Age the following was said:

[p]ublic opinion was shaped by media reporting of apparently lenient sentences but 'most people have no idea of what they would think about a case if they heard the full facts' and were responsible for sentencing...People don't have a real understanding of their own sense of justice.[10]

18 Public discussion about a sentence in an individual case must also be accompanied by an understanding of the sort of sentences that are usually imposed for such crimes. Otherwise, the media and the public reason from the particular to the general. That leads to any discussion on sentencing within the community becoming skewed and often flawed.

19 Where the media, notably the printed media, move from a particular case to a general assertion that judges are 'soft on sentencing' or maintain that they have 'exposed how judges go soft on crime,' the public will have no ability to evaluate whether there is any truth in the suggestion. They do not have information about sentences that are generally imposed for that type of offence.[11]

Public misconceptions that courts are too lenient in sentencing

20 There is a widely held perception within the community that sentences generally imposed are too lenient.

21 The Department of Justice in 2007-2008 conducted a survey inter alia to measure public perception as to the appropriateness of sentences handed down in criminal cases.[12] In both years approximately two thirds of those surveyed considered sentences handed down were too lenient, while only one fifth thought sentences were about right.[13] The Sentencing Advisory Council has actively sought to inform the community about the realities of sentencing and correct the misconception that courts do not impose sufficiently severe sentences. A research paper released by the Council in 2006 has drawn attention to the public misconception that courts are in general too lenient.[14] It restated that misconception again in a further examination of the question in 2008.[15]

22 In 2008 the Council summarised overseas and Australian research which shows that a combination of the public underestimating the severity of sentencing and over-estimating the severity of offending, builds a grossly inaccurate picture that has had serious implications for levels of public confidence in the criminal justice system.[16]

23 The 2006 paper found that in 'the abstract the public thinks sentences are too lenient', and that people have 'very little accurate knowledge of crime and the criminal justice system', such that the mass media is 'the primary source of information' on those subjects.[17] Selective publicity creates an unwarranted loss of confidence in the administration of criminal justice. Worse still, such publicity undermines the principle of deterrence. It creates the risk that offending will increase, because of the false perception that offenders will not be punished.[18] None of this is intended to suggest that there should not be public discussion in the media about individual cases. The public have a right to criticise and hear the criticism of others through the media. That is a legitimate and important function of the media.[19] But it should be informed and balanced discussion

An informed public does not demand longer sentences

24 The 2006 Sentencing Advisory Council paper found that when people are given more information, 'their levels of punitiveness drops dramatically' and that despite the apparent punitiveness, 'public sentencing preferences are similar to those expressed by the judiciary'.[20] This is not a phenomena peculiar to Victoria. The paper further noted that when provided with the information of the kind provided to the judge in court, the public come to a view very similar to the judge's, as to what sentence is appropriate.[21]

25 The appellant referred to the particular academic research conducted in 2007, and which was relied upon in the Council paper of 2008, as demonstrating that the 'informed' community does not demand lengthy sentences.[22] The research provides an empirical foundation for the view that an informed and objective public does not consider sentences imposed by judges in particular cases to be too lenient.[23] In The Age article to which we have referred,[24] the results of research by Melbourne University criminologist Dr Austin Lovegrove were said to show that the Victorian public is 'more compassionate than calls for zero tolerance and complaints over "lenient sentencing" suggest' and that public attitudes 'softened when mitigating factors where understood'.[25] An editorial in The Age the following day suggested that the gulf between the views of those on the street and those on the bench may be much narrower than is suggested by those who call for tougher sentences.[26] The editorial emphasised the importance of knowledge of all the relevant facts, 'not only those seized on by the punitively minded'.

Ensuring media have access to all sentencing outcomes

26 It follows from what we have said that to redress the myths under which the community labours and to enable the formulation of more objective community views as to sentences, the public must be provided with the necessary information to make informed judgments. The role of the media is critically important. The public depends upon the mass media for its knowledge of the workings of the criminal justice system. Conversely, the courts depend upon the media to convey information to the community about the sentencing process. For the public to have 'in their collective consciousness the true nature of their sense of justice',[27] the public must have a great deal more detail about the general sentencing patterns for a crime and detail about the offence and the offender.

27 The Sentencing Advisory Council concluded that, were the public to form opinions from adequate court-based information instead of through the lens of the mass media, there would be better community knowledge and fewer instances of misinformed calls for harsher punishment.[28] We accept that proposition. However, the courts must assist the media in the task of accurately informing the public about their sentencing work. The courts and the media share the important burden of providing the public with sufficient detail of the actual sentences being imposed for all types of crime, in those cases that presently receive little or no public attention. It is in the more common areas of offending that deterrence assumes particular importance. The courts need to provide sentencing information to the media in a form that can be readily communicated to the community and on court websites.

28 As counsel frankly acknowledged, the appellant's argument rests upon the premise that the sentencing judge was intending to give effect to an ill-informed public perception that sentences are too lenient. This, it was said, led to the imposition of a sentence higher than that which was permitted on a proper application of sentencing principles.

29 The Courts recognise that there is always the possibility that a sentencing judge may be placed under pressure or even swayed by uninformed media or public clamour for 'harsher' penalties. Such criticism of sentences cannot be allowed to influence the sentencing judge. A sentencing judge must proceed to sentence according to law.[29] Hence the laws restraining publication of matters that are sub judice.

Sentencing judge not improperly influenced by prevalence of offending conduct or community expectations

30 Senior counsel for the appellant contended that there was only one circumstance in which community expectations could be relied upon by a sentencing judge. It was said that in rare circumstance where the court considered that there was justified community concern over the prevalence of a particular type of offence, a sentence beyond current sentencing practice may be appropriate. A passage from the judgment of McGarvie J in Bateman,[30] quoted in Fox and Freiberg, was cited, as to the need for convincing proof before increased prevalence of a type of offending could be employed to justify harsher penalties.[31] That, it was said, was the only circumstance in which a sentencing court could allow itself to be informed by community concern. The thrust of the appellant's contention appeared to be that, as there was no factual foundation for such an approach in the present case, the judge must have been relying on community expectations for some impermissible reason.

31 We do not doubt that a proven increase in prevalence of a particular crime may provide a foundation for the prosecution to urge a court to increase the penalties that have been previously imposed.[32] It can only occur in the confined circumstances identified by the Chief Justice in DPP v Duong:

It seems to me that it would be desirable in a case such as this, if the Director wishes to urge an increase in penalties, for a prosecutor at first instance to put material before the court, properly set out, explaining the foundation for the submission that there has been an increase, and as to why the court should adopt a different approach and increase the penalty above and beyond that previously imposed.[33]

32 In a case such as the present where the appellant has pleaded guilty on the reasonable assumption that current sentencing practices will apply, it would be a matter for this Court whether a sentence beyond current sentencing practice would have been appropriate.[34] In any event the Director did not seek to uplift the current sentencing practice in the present case.

33 The sentencing judge said nothing which would support the view that he was motivated by a perception as to the prevalence of the offence, or that he was contemplating departing from current sentencing practice[35] to fix a sentence beyond the range applicable. That said, a sentencing judge may take account of public attitudes to the type of crime in question and public concern about the prevalence of a type of crime or about its effects, and have regard in a general way to a public expectation that serious crime will attract severe punishment.[36]

The relevance of community expectations to sentencing - a reaffirmation of society's values

34 A sentencing judge need not be reticent to express him or herself in terms of community values. The circumstances in which a sentencing court may refer to or draw upon the concerns or expectations of the community is not to be circumscribed as the appellant suggests. The courts do not exist independently of the society which they serve. As the sole legitimate administrator of criminal justice, they may be viewed as the trustees of the power of the community to judge and, where appropriate, punish its members. This requires that the courts vindicate the properly informed values of the community and, equally significantly, that they are seen to do so.[37]

35 The expectations and values of the community are, in fact, often invoked in sentencing remarks and in the broader context of sentencing law. Central to the purposes of sentencing is public denunciation of the offending conduct and reinforcement of society's expectations. The sentence communicates society's condemnation of the offender's conduct. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator.[38] The sentence serves to reinforce the standards which society expects its members to observe. As Kirby J stated in Ryan, the sentence represents:

a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. [39]

36 In the case of sexual exploitation of children, which involves 'a derogation from the fundamental human rights of immature, dependent and vulnerable persons', the sentence constitutes an important reaffirmation by society of those values.[40] Accordingly, it is entirely appropriate and not uncommon for references to be made to those values in the context of sentencing. In R v Sposito, the Full Court spoke of the breach of trust placed in the offender by the community and society's responsibility to protect its children from sexual abuse.[41] In Wayland Crockett J gave express recognition to the rising tide of public indignation concerning sexual offences against children and the court's obligation to respond to legitimate community concern.[42] In R v Wakime, Winneke P, after referring to the capacity of crimes against children to erode decent family life and the trust and confidence of its victims, repeated that this court 'ought not to turn its back on the tide of community anger and resentment towards crimes which involve the despoliation of children.'[43] In DPP v Riddle Vincent JA considered that 'just punishment, public denunciation and general deterrence' assumed considerable significance as sentencing considerations given the fact that the community had been required to face and respond to an appalling incidence of child abuse.[44] In DPP v Toomey, Vincent JA referred to the fact that sexual abuse of children is regarded by the reasonable person as extremely serious, not only by reason of its potential and actual impacts on the individual victims, but also because of the damage occasioned to the community generally.[45]

37 Under the Sentencing Act 1991 the offender must receive 'just punishment.'[46] It is punishment which does justice between the community and the offender. Hence Maxwell P in R v Avci[47]discussed community concern about the prevalence and seriousness of rape and like crimes and the need for salutary sentences for those crimes. On a Directors' appeal against sentence, a relevant test of the appropriateness of the sentence- that is to say whether the sentence has been imposed according to law- is whether the sentence would 'shock' the 'public conscience'.[48] What is there in contemplation is an assessment of the sentence by an objective, properly informed public, invested with an understanding of the relevant sentencing principles, cognisant of the circumstances of the case and aware of current sentencing practices. It was that same standard which the sentence judge was here seeking to apply.

38 Protection of children from exploitation by adults and their social rehabilitation are paramount considerations requiring the imposition of condign punishment. In our opinion, by linking the community's expectations with the need for condign punishment, his Honour sought to reflect two important considerations. First, the pre-eminent community value of the protection of the integrity and safety of children. Second, the social rehabilitation of the victim through recognition of the real significance of what has occurred in the life of the victim.[49]

The importance of general and specific deterrence to crimes involving sexual abuse of children

39 We turn then to the further contention advanced under this ground, that where such offences are committed by a paedophile a lengthy sentence is not necessarily appropriate. It was said that passages from the judgments of various members of the High Court in Ryan v The Queen[50] reflected the fact that minds may differ as to whether a lengthy sentence would achieve the objective of protecting children by deterring such offenders. The argument that sentences should be moderated, or moral culpability viewed as reduced because the offender is a paedophile was rejected by the majority in Ryan. In DPP v OJA & Ors[51] Nettle JA referred to the primary judgments in Ryan in these terms:

as McHugh J explained in Ryan, the persistently punitive attitude of the community towards sexually deviate crime mandates that sexually deviate offenders be severely punished for their offences and, even if long sentences do not deter them or others with similar inclinations, they may at least have the effect of putting the offenders in a place where they cannot harm others for the time being. To similar effect, Hayne J observed that, if on examination of a particular offender's circumstances it is demonstrated that the offender is likely to re-offend, the likelihood of re-offending might ordinarily be thought to go in aggravation not mitigation of the sentence to be imposed.

40 Our society is becoming more aware of the incidence of sexual abuse of children and its potentially destructive impact. Such conduct commonly involves a gross breach of trust that is likely to have a profound and lasting effect on the victim, family and community. The frequency with which it appears that an offender before the court was a victim of sexual abuse when they were a child, is another indicium of the irreparable damage that is done to victims of sexual abuse and its consequences for the community.

41 It was not made entirely clear whether it was being contended that the appellant's paedophilic tendencies attract the principles espoused in Tsiaras[52] and Verdins[53] so as to make him a less appropriate vehicle for deterrence or reduce his moral culpability or whether some other principle is enlivened that should produce that outcome. Counsel for the appellant did not develop this aspect of his submission. The suggestion that general or specific deterrence should be modified in the present circumstances, or that a lengthy sentence is not warranted, must be rejected. This court has stressed on numerous occasions that the sentence for such offences must provide such specific and general deterrence as may both dissuade the offender from re-offending and dissuade other deviates from similar offending.[54] The concept that an otherwise appropriate sentence for the commission of a serious sexual offence with a child should be moderated by the offender's paedophilic tendencies can have little if any part to play in the exercise of the sentencing judge's discretion.

42 Earlier we discussed one of the reasons why a more comprehensive reporting of details of sentencing is important to the maintenance of public confidence in the operation of the criminal justice system. It is critical for another reason. General deterrence will ordinarily occupy a prominent place in the instinctive synthesis in sentencing. But the underlying rationale for its application is that the community will become aware of the sentence imposed for the crime and that it will lead to a greater awareness by the community of the type of sentences imposed for that kind of criminal conduct. Usually, each offender is dealt with in sentencing upon the further assumption that, at the time the crime was committed, the offender was aware of the law and the consequences of its breach.

43 Obviously, the level of community awareness of the sentences consistently imposed for sexual offences will determine the extent to which those sentences can act as a deterrent to others in the community who are minded to commit similar offences. Regrettably, sexual offences against children, including incest, are amongst the range of commonly occurring crimes which are not generally reported or which receive little attention. Thus to return to our earlier proposition, if sentencing outcomes in these and other commonly committed crimes are not adequately made known to the public at large, general deterrence will lose its authority as a prime principle justifying the imposition of custodial and other punitive measures. When the community labours under the belief that sentences that are imposed are inadequate, a sense of injustice exists that damages the respect in which our criminal justice system is held. The public needs to be made more aware of the full extent of custodial sentences that are handed down on a regular basis in all levels of the legal system. For example, the community must be better informed as to the consistent imposition of custodial penalties that are imposed by all of the courts for offences such as home invasions, violence resulting in injury, trafficking in or cultivating drugs of addiction, sexual offences and more serious driving offences. The courts and the media must be able to utilise all technologies that are available so as to achieve a more comprehensive reporting of sentencing for all types of criminal conduct.

44 We conclude that there is no foundation for the suggestion that his Honour fell into error, in response to ill-informed community expectations, by formulating a sentence that did not rest solely upon relevant sentencing considerations. His Honour's remarks are quite inconsistent with such an inference. They appear in a paragraph which sets out a number of principles which are relevant to the sentencing discretion. The judge was stating no more than his conclusion that the instinctive synthesis required a lengthy sentence to be imposed and chose to express himself, as he was entitled to do, in terms of the community expectation. So much was recognised by counsel for the appellant on the plea, who conceded that condign punishment was required in view of the seriousness of the offending conduct. The sentencing judge did not adopt a criterion that called for a sentence of a greater length than that which would be required by the law. On the contrary his Honour's reference to the community carried an underlying assumption of an objective, fully informed community that understood the range of sentencing that would be appropriate in the circumstances.

46 Grounds 1, 2 and 4 raise for consideration the appropriate range of the sentencing discretion available to the sentencing judge in the circumstances of this case.

47 By way of ground 2 the appellant submits that the sentences imposed by the learned trial judge fail to properly reflect his stated intention of regarding the appellant's pleas of guilty as 'requiring a real reduction in penalty'.

48 The value of a plea of guilty, particularly in cases involving sexual offences, is well established.[55] Sexual offences are notoriously difficult to prove. Particularly in such cases, a plea of guilty results in a significant benefit to the victim. It relieves them of the need to testify and advances their prospects of recovery. By substantially discounting the sentence in such cases, the court encourages others charged with similar crimes to also acknowledge their guilt.

49 In his reasons the sentencing judge specifically referred to the plea of guilty as a factor which 'constrained the sentence I would otherwise impose'.[56] In those circumstances it was conceded by counsel for the appellant that the conclusion that his Honour failed to take that consideration into account does not bear scrutiny. It remains to consider whether that factor was given insufficient weight and whether in conjunction with the other matters raised on appeal it can be said that the sentence was manifestly excessive.

50 Relevant to this consideration is resolution of ground 4, under cover of which it is said that the prosecutor wrongly advocated a particular sentence rather than an appropriate range[57] and that he did not appear to have any instructions when he did so. The latter point was said to be contrary to the statement of principle in a passage of the majority judgment in MacNeil Brown in which it was said:

As this court made clear in R v S, what the court requires, and the prosecutor should supply, is a submission on behalf of the Crown. The submission should be expressed accordingly. How the Crown's position in a particular case is to be arrived at within the OPP is a matter of internal administration for the director. If it is correct that 'no machinery exists for the submission of an ex officio view', then it will be necessary for some such machinery to be established. This should not, we would have thought, present any great difficulty. After all, every day in courts throughout Australia counsel instructed by governments and statutory authorities make submissions reflecting the 'ex officio' view of the government, department or agency in question.[58]

51 Attention was also drawn to the following paragraph in the judgment of Buchanan JA:

Even less likely to be helpful is a statement of the opinion, not of counsel appearing for the Crown in the case before the court, but of the Office of the Public Prosecutor. An individual barrister can at least attempt to make transparent his view as to a range of sentences by specifying the facts he has taken into account. The view of the Office of Public Prosecutions, on the other hand, is opaque; it is the view of an unknown number of persons whose attention to and knowledge of the relevant facts is also unknown.[59]

52 This plea took place before the decision of this court in MacNeil Brown was published. For that reason the prosecutor did not seek to place any range before the sentencing judge. That said, we should make it clear that we do not accept the premise contained in the appellant's written submission that MacNeil Brown requires the prosecutor to have obtained instructions as to the appropriate range prior to a hearing of the plea. Frequently, the submission as to range will not be made until after the conclusion of submissions made on behalf of the offender, when all relevant mitigatory circumstances have been made known. It is too often the case that expert or medical evidence concerning the offender is not produced until the hearing of the plea. Only after the plea in mitigation can the prosecutor make an informed submission as to the appropriate range which takes account of and makes reference to all of the factors which are said to support the range which is nominated. It is to be borne in mind that the prosecutor's submission as to the appropriate range is not simply the provision of the top and bottom of the range. It must, like any other submission as to how a discretionary judgment is to be exercised, refer to the factors that bear upon the exercise of the discretion. Hence in supporting the range one would ordinarily expect some reference to the gravity of the offence and aggravating or mitigating factors.[60] The degree of guidance provided to the prosecutor by those instructing him or her prior to or during the plea is a matter for the Office of Public Prosecutions. It may be that the prosecutor will have authority to make such an assessment after the plea in mitigation for the offender has concluded. What is required is that the prosecutor make a submission which states the prosecution's position. It is not for the sentencing judge or this court to undertake an inquiry as to whether the prosecutor's submission is based upon instructions. It will be presumed to be so.[61] Whatever be the authority of the prosecutor, the extent to which the range submitted by the Crown has taken into account the matters raised on the offender's behalf during the plea must be made clear to the sentencing judge.

53 Contrary to the written submission of the appellant, we do not understand the prosecutor to have made a submission as to a precise figure. It was only in response to a figure suggested by counsel for the appellant and a comment by the sentencing judge, that the prosecutor said that a period of six years would be 'at least' that which was required. The prosecutor emphasised that he did not intend to submit a precise figure and appeared at pains to resist doing so. The trial judge was at pains to warn counsel not to make submissions as to a precise figure.

54 His Honour did not consider the submissions as to the appropriate range to be binding, informative or of any substance in the sentencing process. Counsel for the appellant on the appeal did not seek to advance any oral argument in furtherance of the ground and appeared disinclined to press it. In our view the prosecutor's submission did not give rise to any error. Grounds 1, 2 and 4 are not made out. However we deal further with ground 1 below.

55 The appellant fell to be sentenced on 14 December 2007. He had been remanded in custody at the sentencing hearing the day before. The learned sentencing judge made no order as to pre-sentence detention. On the plea this matter was raised by defence counsel who, when asked by his Honour what ought be declared, responded in somewhat ambivalent terms that the judge should 'just ... record in Your Honour's sentencing remarks that you remanded [the appellant] yesterday'. It is submitted that his Honour erred by failing to make an order recognising one day of pre-sentence detention. This submission was opposed by the respondent who submitted that the appellant had been in pre-sentence detention for a period of less than 24 hours and the judge was therefore under no obligation to make a declaration.

56 Section 18(1) of the Sentencing Act 1991 relevantly provides that where a person has been sentenced to a term of imprisonment for an offence, any period served in 'custody' in relation to proceedings for the offence 'must' be reckoned as a period of imprisonment already served under the sentence imposed ('PSD'). Subsection (2)(a) does, however, exclude from the operation of that section 'a period of custody of less than one day'.

57 It is not in dispute that the appellant was 'in custody' for the purposes of s 18. The issue is whether the appellant's overnight imprisonment constitutes a period of 'less than one day' for the purposes of the provision.

58 In DPP v TY[62] this court, in dealing with a Director's appeal observed that 'a declaration of PSD is not part of the sentence imposed, and an error in a PSD declaration is not a sentencing error'.[63] The Court said:

A declaration of PSD is an official statement of time served under the sentence. Thus, s 18(1) refers to the period which 'must be reckoned as a period of imprisonment or detention already served under the sentence'. The PSD declaration serves the vital (administrative) purpose of ensuring that the sentenced person spends no more time in custody for the relevant offence(s) than is required by the sentence imposed. It is very important that the declaration should be accurate. Hence s 18(7) and (8)(b) permit an application to be made to the sentencing court to correct an inaccurate declaration.

Nor does the calculation of PSD have any bearing on the determination of the appropriate sentence. The appropriate sentence is arrived at by the application of conventional sentencing principles to the circumstances of the case. It is only after the sentence has been determined - and pronounced - that the question of PSD arises.[64]

59 The error is not one material to the sentence passed but it should be corrected pursuant to s 104A(3) of the Sentencing Act 1991. It follows that ground 5 is not made out.

60 The appellant's submissions under ground 1 ( and in part ground 4) focussed upon whether the appellant's guilty plea, in combination with a number of other factors pleaded in mitigation on behalf of the accused, compelled the conclusion that the sentence imposed was manifestly excessive. In his written submissions the appellant referred to a number of matters that were said to be relevant to this consideration:

(i) The act of penetration (count 1) was isolated and relatively fleeting; no act of grooming was alleged.

(ii) The act of indecent assault on the same victim (count 2) was an act of masturbation in her presence; the indecent act the subject of the second victim (count 3) was the touching of a breast.

(iii) The appellant made substantial admissions to the offences.

(iv) He pleaded guilty to the offences and indicated that plea at an early stage.

(v) Apart from a driving conviction (not alleged) he had no prior convictions.

(vi) He had himself been the victim of sexual abuse as a child.

(vii) Although he had worked for lengthy periods during his life, he was now on a disability pension and in very poor health, suffering from emphysema and requiring a walking frame. He was aged 66. He also suffered from anxiety, depression and hearing loss. The judge observed at [18] of his sentence that he appeared fragile.

(viii) He had the support of his family. He had supported his partner in the upbringing of her children and had himself children from a previous marriage.

(ix) It was undoubtedly the case and the judge accepted at [17] that prison would be more burdensome for him.

61 The appellant relied upon his advanced years and his ill health as mitigatory considerations which should have led to a lower sentence. In R v RLP[65] this court recently addressed the same submission and said:

The age and health of an offender are relevant to the exercise of the sentencing discretion.
Old age or ill health are not determinative of the quantum of sentence.
Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender's ill health will make his or her period of incarceration particularly onerous.
Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.[66]

62 The Crown submitted that it could not be shown 'that it is a sentence which no reasonable judge could have imposed in the circumstances '.[67] This is a stringent requirement, which it is difficult to satisfy. Counsel for the respondent drew attention to the appellant's lack of frankness in the record of interview and the fact that he sought to minimise his conduct by suggesting that the 10 year old victim had instigated the conduct. The respondent further emphasised the seriousness of the offending and drew attention to the lack of genuine remorse and limited insight on the part of the appellant.

63 On the appeal a number of cases were cited where sentences for the same or similar conduct were lower than that imposed upon the appellant in the present case.[68] We have already re-stated that reference to comparable cases can be of only limited assistance. Reliance was also placed on the sentencing statistics published by the Sentencing Advisory Council, which show that the individual sentences imposed were well beyond the median figure. As has been previously recognised those statistics also have limited utility.[69]

64 The sentence on count one, which became the base sentence, was the highest fixed during the period 2003-2008. The cases to which we referred, and other cases which we have considered,[70] demonstrate that the range of sentences available for this category of offending was considerably below the sentence imposed.

65 It was not in issue that count one called for a substantial period of imprisonment. The appellant had breached the position of trust that had been reposed in him. The conduct was devious and opportunistic. The behaviour warranted appropriate adherence to and recognition of the principle of general deterrence. In addition the remorse of the appellant was limited. But the features present in this case are all too commonly to be found in offending of this nature. There was no aspect of it which would justify placing it in the highest category of seriousness for this offence and at the very top of that range usually reserved for cases involving a pattern of offending conduct over a considerable period. The sentence imposed on that count was in our view manifestly excessive.

66 The appellant must therefore be re-sentenced. We would impose the following sentences:

67 Count 1: Sexual penetration of a child under 16 - 6 years imprisonment

Count 2: Indecent act with a child under 16 - 12months imprisonment

Count 3: Indecent act with a child under 16 - 18 months imprisonment

68 We would order that 3 months of count 2 and 6 months of count 3 be served cumulatively upon each other and the sentence imposed on count 1 making a total effective sentence of six years and nine months' imprisonment. A non-parole period of four years and three months is fixed.

[2] R v Rushby [1977] 1 NSWLR 594, 597 (Street CJ).

[3] R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, [4], [37].

[6] R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, [10].

[7] Karen Gelb, 'More Myths and Misconceptions' (Research Paper, Sentencing Advisory Council, 2008) 6.

[8] See Sara S Beale, 'The News Media's Influence on Criminal Justice Policy' (2006) 48 William and Mary Law Review 397, 422, 425.

[9] Given the number of sentences handed down each day, the media cannot have reporters in all courts but there are means whereby the courts could ensure that the essential information as to the sentences is made available to the community and the media. The recently developed Supreme Court Sentencing Tables are an example: see the Supreme Court of Victoria website http://www.supremecourt.vic.gov.au.

[10] Ian Munro, 'Sense of Justice Strong, Survey Finds', The Age, 15 March 2010, 3; see also Editorial, 'Justice, Not Vengeance, is Needed in the Courts', The Age, 29 August 2010.

[11] Geoff Wilkinson, 'Revealed: How Top Judges Go Soft on Worst Crims', Herald Sun, 5 August 2010; Geoff Wilkinson 'Soft Sentence for Driver Cheapens a Stolen Life', Herald Sun, 6 August 2010.

[12] The Department has since 2002 conducted surveys to measure public perception on a range of matters relating to the justice system. Due to their framework and content, these surveys have limited usefulness. However it is unnecessary to analyse these surveys further for present purposes.

[13] Department of Justice, Perceptions of Justice Survey Results 2008 (with 2007 comparisons) (2009).

[14] Karen Gelb, 'Myths and Misconceptions' (Research Paper, Sentencing Advisory Council, 2006).

[15] Gelb, 'More Myths and Misconceptions', above n 7.

[16] Ibid 4; J Roberts, L Stalans, D Indermaur and M Hough, Penal Populism and Public Opinion :Lessons from Five Countries (2003); J Roberts and M Hough 'Sentencing Young Offenders: Public Opinion in England and Wales' (2005) 5(3) Criminology and Criminal Justice 211.

[17] Gelb, 'Myths and Misconceptions', above n 14.

[18] See the letters in pages 44 and 45 of the Herald Sun, 6 August 2010 which suggest that view.

[19] R v Nemer [2003] SASC 375 [20] (Doyle CJ).

[20] Gelb, 'More Myths and Misconceptions_',_ above n 7, 2.

[22] Austin Lovegrove, 'Public Opinion, Sentencing and Lenience; an Empirical Study involving Judges Consulting the Community' (2007) Criminal Law Review 769.

[23] Fully informed members of the public invested with the same knowledge as the sentencing judge as to the detail of the offence and the circumstances personal to the offender would not impose harsher penalties than the court. These findings are also reflected in the research released in the United Kingdom in 2009. Those findings 'counter the stereotypical view of the public as punitive sentencers concerned almost exclusively with punishment and focused on the offence at the expense of any legally relevant offender characteristics'. The findings suggest that where the public is adequately informed, there is no fundamental mismatch between sentencing principles and public opinion.

[24] See para [17] above.

[25] Munro, above n 10.

[26] Editorial, The Age, 16 March 2010, 10.

[27] Dr Austin Lovegrove, _'_Putting the Offender Back into Sentencing: An Empirical Study of the Public's Understanding of Personal Mitigation', 26 (to be published in Criminology and Criminal Justice).

[28] Gelb, 'More Myths and Misconceptions', above n 7, 7.

[29] R v Nemer [2003] SASC 375 [14](Doyle CJ); this approach arises under s 5(1) (b),(d),(e) and (f) and 2(b) and (c) of the Sentencing Act 1991.

[30] R v Bateman (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 29 June 1977).

[31] Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 265 [3.631].

[32] DPP v Avci [2008] VSCA 256; (2008) 21 VR 310, [26]; R v Downie and Dandy [1998] 2 VR 517.
[33] [2006] VSCA 78, [19].

[34] DPP v CPD (2008-9) 22 VR 533 [69].

[36] R v Nemer [2003] SASC 375 [14] (Doyle CJ).

[37] DPP v FHS [2006] VSCA 120, [23].

[39] Ryan v The Queen (2001) 206 CLR 267, [118] (Kirby J).

[41] (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 7 June 1993).

[42] R v Wayland (Unreported, Supreme Court of Victoria, Court of Criminal Appeal , Crockett, Southwell and Hampel JJ, 14 September 1992, 4).

[43] R v Wakime [1997] 1 VR 242, 244.

[44] DPP v Riddle [2002] VSCA 153, [34]-[35].

[45] DPP v Toomey [2006] VSCA 90, [20].

[48] See for example DPP v Brown [2009] VSCA 314, [23].

[49] DPP v Toomey [2006] VSCA 90; DPP v DJK [2003] VSCA 109.

[50] (2001) 206 CLR 267, [38]-[51] (McHugh J); [113]-[131] (Kirby J); Hayne J generally.

[54] R v Sposito (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 7 June 1993); R v Wakime [1997] 1 VR 242; R v WEF [1998] 2 VR 385; DPP v VH [2004] VSCA 180; (2004) 10 VR 234; DPP v TDJ [2009] VSCA 317; DPP v MJ [2000] VSCA 66, [17] (Phillips CJ); DPP v DJK [2003] VSCA 109, [26] (Vincent JA); R v Di Nardo [1998] 2 VR 493, 503; DPP v OJA & Ors [2007] VSCA 129; (2007) 172 A Crim R 181, [33] (Nettle JA).

[55] R v Hall (1994) 76 A Crim R 454, 469-70 (Crockett and Southwell JJ).

[57] R v MacNeil Brown [2008] VSCA 190; (2008) 20 VR 677, [110]-[113].

[60] MacNeil Browne Maxwell, P. Vincent and Redlich JJA, [12].

[61] Humphries v The Queen [2010] VSCA 161 [30]-[31].

[67] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, [14] (Maxwell P).

[68] R v Bastan [2009] VSCA 157; R v Ahmed [2006] VSCA 200; Director of Public Prosecutions v Daly [2004] VSCA 63; Director of Public Prosecutions v McCloy [2006] VSCA 99; Director of Public Prosecutions v Maynard [2009] VSCA 129; R v Adajian [1999] VSCA 105, [28] (Callaway JA); R v Giordano [1998] 1 VR 544, 549 (Winneke P).

[69] DPP v CPD [2009] VSCA 114, [57].

[70] R v Parfitt [2006] VSCA 91; R v Crozier [2005] VSCA 188; DPP v DL [2006] VSCA 280; R v Nguyen [2007] VSCA 230; (2007) 177 A Crim R 108; R v RGG [2008] VSCA 94; R v RNT [2009] VSCA 137; R v Vernon [2009] VSCA 204; R v HJM [2009] VSCA 267.

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