R v Feuerstein

1. [1]

   HIDDEN J: The respondent, Michael Feuerstein, was tried in the District Court upon an indictment charging 25 counts of sexual offences committed against boys. He was found guilty of 21 of them. He also pleaded guilty to 2 charges on a separate indictment, referred to in this court as the second indictment. These were possessing and disseminating child abuse material. The sentence passed for the first of those charges, possessing child abuse material, took into an account an offence of possessing prohibited weapons on a Form 1.

2. [2]

   For the 2 offences on the second indictment he was sentenced to concurrent fixed terms of 2 ½ years and 1 year and 3 months, commencing on 1 December 2011. For the 21 offences of which he was found guilty at trial he was sentenced to an aggregate term of imprisonment for 14 years, comprising a non-parole period of 9 years and a balance of term of 5 years, commencing on 1 June 2012. The total sentence, then, was imprisonment for 14 ½ years with an effective non-parole period of 9 ½ years.

3. [3]

   The Director of Public Prosecutions has appealed against those sentences, asserting that they are manifestly inadequate and were affected by specific errors in the trial judge’s approach. I should record that there was a further matter on a s 166 certificate, for which the respondent was convicted without penalty, but that is not the subject of appeal.

Facts

1. [4]

   It is necessary to summarise the facts of this unusual case at some length. In relation to the offences of which the respondent was found guilty at trial, this is best done by reference to the trial judge’s findings expressed in his remarks on sentence, which include his assessment of the gravity of the offences.

The trial offences

1. [5]

   These offences were committed over a 20 year period, between 1991 and 2011. The offences were the following:

2. [6]

   There were seven complainants, aged between 10 and 16 years at the relevant times. For the purpose of sentence, his Honour accepted tendency evidence admitted at the trial which established that:

3. [7]

   As to the various counts, his Honour expressed his findings in his remarks as follows:

4. [8]

   As to these offences generally, his Honour said:

5. [9]

   Later, his Honour said:

6. [10]

   The Crown submissions in this court contain the following helpful schedule of the offences in chronological order, providing brief details of each of them, the relevant maximum sentence and, where applicable, the standard non-parole period, and the indicated sentence for each offence.

The second indictment

1. [11]

   As I have said, the second indictment charged two offences to which the respondent pleaded guilty: possessing child abuse material and disseminating child abuse material, each an offence under s 91H(2) of the Crimes Act, carrying a maximum sentence of 10 years imprisonment.

2. [12]

   There was an agreed statement of facts, which can be summarised relatively briefly. On 1 December 2011, police executed a search warrant at the respondent’s home, then at Glen Alpine. A large variety of child abuse material was found. On computers a large number of photos and videos amounting to child pornography were found. As to the photos, there were over 7,000 images containing child pornography or child abuse material. A large number of them depicted young boys, both clothed and naked, being caned. There were 280 videos containing child abuse material. The photos and videos embraced material of a gravity within each of the five categories of the Child Exploitation Tracking Scheme (CETS).

3. [13]

   Police also found a little over 2,500 printed photographs depicting young boys, naked or in various stages of undress. Some showed the boys being caned or spanked. Some of these photos had been downloaded from the internet, but others had been taken by the respondent, including photos of victims of the trial offences.

4. [14]

   Police also found 13 written “stories”, describing in explicit detail the sexual pleasure to be derived from caning young boys, particularly on the naked buttocks. Some went on to describe sexual experiences subsequent to the caning, ranging from homosexual experiences between boys to anal intercourse between adults and boys, as well as boys being tied and caned and subjected to sexual abuse. Most of these stories were within category five on the CETS scale, as they depicted sexual sadism. Others were categorised as two to three on the scale.

5. [15]

   Also found were two books described as “punishment books”, detailing chastisement of boys with a cane, strap or paddle for various “offences”, such as disobedience, stealing, talking in class, and smoking. In addition, three personal diaries were found providing additional detail about the incidents in the punishment books, and describing the respondent caning particular boys, fondling their genitalia, being himself caned by boys, and generally fantasising about the boys in the punishment books. As I understand it, this material included the notebooks recording the caning of boys referred to in relation to the trial offences. Finally, police located a “consent form” purporting to be available for signature by boys prepared to agree to a variety of corporal punishments set out in the document.

6. [16]

   All this material, apparently accumulated over many years, constituted the child abuse material the subject of the first count. As to the second count, disseminating child pornography, police located email communications between the respondent and a man in America in the later part of 2006. There were multiple emails, including photos, of a sexual nature, demonstrating a homosexual interest in boys in their early teens, including caning. In these communications the respondent pretended to be a teenage boy.

7. [17]

   The offence on the Form 1, taken into account on sentence for the first count, was possession of prohibited weapons without a permit: s 7(1) of the Weapons Prohibition Act. During the search of the respondent’s home police also found six handcuffs and an extendable baton. He had no licence or authority to possess those items.

8. [18]

   In the light of the material found at his home, his Honour was satisfied that the respondent derived sexual pleasure from the corporal punishment inflicted on the victims of the relevant trial offences. The respondent conceded in evidence at the trial that he fantasised about the administration of corporal punishment, to which, he acknowledged, there might be a sexual element. His Honour accepted that some of the written material relating to corporal punishment was the product of fantasy – in particular, the stories to which I have referred – but was satisfied that other material recorded real events. He acknowledged the policy of criminalising acts of fantasy of this kind, referring to the judgment of Howie J in Jarrold v R [2010] NSWCCA 69, but added:

9. [19]

   His Honour had regard to the matters relevant to the assessment of the objective seriousness of offences of possessing or disseminating child pornography considered by R A Hulme J (with whom Macfarlan JA and Johnson J agreed) in Minehan v R [2010] NSWCCA 140, 201 A Crim R 243, at [81]-[95] (257-261). He emphasised the importance of general deterrence in sentencing for crimes of this kind, noting that prior good character is entitled only to limited weight as a mitigating factor. He discounted the sentence for each count by 15% in recognition of late pleas of guilty.

Subjective case

1. [20]

   Born on 20 September 1962, the respondent was aged between 28 and 49 over the period of his offending (from June 1991 to December 2011). He is now 52. He has a minor criminal history, relating to his failure to maintain a firearms register (presumably arising from his involvement in the security industry). His Honour treated him as a person of prior good character. He added, however, that that factor was not entitled to significant weight, given the pattern of repeat offending over a period of time during which he “used his position in the community to further his own sexual gratification.”

2. [21]

   As I have said, the respondent’s employment at relevant times was as a security officer. He had formerly been an officer of the Australian Federal Police. Because of that background, and the nature of his offences, he had been on protection in conditions of “non-association” and “limited association.” His Honour noted that they are harsher regimes for any prisoner, and found that he would probably spend the bulk of his sentence in some form of protection. His Honour also accepted that a fear of physical attack upon him because of his status as an ex-police officer and a child sex offender would continue “to prey upon him.”

3. [22]

   His Honour also took into account evidence that the respondent has a number of medical problems, which were likely to increase during his time in custody.

Other sentencing issues

1. [23]

   His Honour considered the related issues of accumulation, concurrence and totality, with reference to relevant authority. He recognised the need for at least partial accumulation in a case where an offender stands for sentence for “separate and discrete criminal acts.” He added:

2. [24]

   His Honour related that last sentence to a case, such as the present, involving multiple offences against different victims. Turning to the issue of the non-parole period, he said:

3. [25]

   His Honour had regard to the age of the offences, and the changes in the sentencing regime over the long period during which they were committed. The first seven offences, committed between 1991 and 1999, were subject to the Sentencing Act 1989. The remaining offences were governed by the current legislation, the Crimes (Sentencing Procedure) Act 1999, which came into force in April 2000. (The eighth offence, committed between January 2000 and December 2001 spans those periods.) That said, with the exception of counts 4 and 5, under s 66C(2)(b) of the Crimes Act, which has since been replaced, the maximum sentences have not changed. The remaining offences (counts 9 to 25), committed between 2001 and 2011, are either aggravated sexual assault under s 61J(1) or aggravated indecent assault under s 61M(1). Of those the last nine, committed between 2007 and 2011, attract a standard non-parole period.

4. [26]

   In the District Court the respondent was represented by Mr Scragg of counsel, who also appeared in this court. His Honour noted Mr Scragg’s submission that a number of the trial offences were “historical”, requiring the imposition of a lesser sentence than might be expected now. Reference was made to the judgment of Button J (with whom McClellan CJ at CL and Bellew J agreed) in Magnuson v R [2013] NSWCCA 50, a case involving sentences for historical sexual offences, albeit very much older than those in the present case. Button J dealt with this issue at [82] ff. In this court Mr Scragg focused upon the following passage at [127]-[129]:

5. [27]

   His Honour accepted Button J’s analysis, while adding that it did not convey that categorisation of an offence as “historical” necessarily meant that a lesser sentence was required. However, relevantly for the present case, he perceived a general increase in sentences in respect of offences for which a non-parole period had been prescribed, citing a passage from a Judicial Commission publication in 2010, Impact of Standard Non-Parole Periods, Research Monograph 33:

6. [28]

   His Honour found special circumstances warranting an adjustment of the ratio between sentence and non-parole period, although acknowledging that it should only be “relatively modest.” Special circumstances were found because of the measure of accumulation of sentence which he proposed, together with the need to help the respondent adjust to normal community life after a lengthy period in custody. His Honour noted that he would need sex offender programs while in custody and, upon his release, would “also need to be closely supervised and, in my opinion, the longer the better.”

The appeal

1. [29]

   The principal ground of the appeal is that the total sentence, including the effective non-parole period, is manifestly inadequate. The other grounds are for the most part particulars of that ground. In summary, they assert the following:

2. [30]

   As to the aggregate sentence, the Crown prosecutor in this court submitted that the indicated sentences for the various offences conveyed that his Honour had not given appropriate consideration to the maximum penalty and, where applicable, the prescribed standard non-parole period for each of them. He acknowledged that the indicative sentences were not themselves appellable, but relied upon authority that a sentencing judge must assess the criminality of the individual offences and that an erroneous approach demonstrated in an indicated sentence may reveal error in the aggregate sentence: R v Brown [2012] NSWCCA 199, per Grove AJ (with whom Macfarlan JA and McCallum J agreed) at [17].

3. [31]

   I do not understand the Crown prosecutor to have argued that his Honour failed to have regard to the maximum sentences or applicable standard non-parole periods. His Honour said in his remarks, “Careful attention to maximum penalties and where applicable, standard non-parole periods, is always required.” He went on to develop that proposition, referring to Markarian v The Queen [2005] HCA 25, (2006) 228 CLR 357. Rather, the Crown prosecutor’s argument was that his Honour appears to have given inadequate weight to those factors in arriving at the indicative sentence for each offence.

4. [32]

   That argument was not developed by reference to the indicative sentences individually. They are to be found in the table set out at [10] above. They range from 6 months (for several of the offences of indecent assault by caning the victims) to 8 years for anal intercourse with the last of the victims. Non-parole periods are also indicated for the offences carrying a standard non-parole period, ranging from 9 months (for a caning offence) to 6 years (for the anal intercourse). In my view, an examination of the indicative sentences in the table demonstrates careful attention to the gravity of each crime, having regard to the widely varying circumstances of them. None of them appear to me to demonstrate an erroneous assessment of their criminality.

5. [33]

   The Crown prosecutor in this court provided Judicial Commission statistics of full time custodial sentences imposed for the trial offences. He did so acknowledging the caution which this court has consistently urged in the use of that material, reiterated recently by Bellew J (with whom Macfarlan JA and Adamson J agreed) in MLP v R [2014] NSWCCA 183, particularly at [44]-[46]. The statistics relate to the offences under the relevant provisions of the Crimes Act: s 61J(1) and s 61M(1) (both before and after the introduction of the relevant standard non-parole periods), s 61I and s 66C(2). The Crown prosecutor relied upon these figures in respect of all the offences, even though they cover the period from 2007 to 2014, embracing only counts 16-25.

6. [34]

   There are statistics for head sentences and non-parole periods in respect of all offenders. However, for the offences which do not carry a standard non-parole period only the head sentences are relevant. I do not propose to summarise these figures. As one would expect, they show a wide range of sentences for each of the relevant offences and, in relation to the offences carrying a standard non-parole period, an equally wide range of non-parole periods. There is also a considerable variety in the number of cases upon which they are based.

7. [35]

   These figures provide no useful guidance in assessing his Honour’s indicative sentences. I might add that, with three exceptions, all those sentences fall within the ranges disclosed by the statistics. The three exceptions are counts 20, 21 and 23, indecent assaults by caning the complainant. For each of those the indicative sentence was 6 months. However, there is force in Mr Scragg’s submission that those offences in isolation would not necessarily have warranted a full time custodial sentence.

8. [36]

   The question remains whether the aggregate sentence, including the non-parole period, adequately reflects the overall criminality of the trial offences. To this I shall return.

9. [37]

   Turning to the child pornography offences, it will be recalled that for the possession offence, taking into account the offence on the Form 1, the respondent was sentenced to a fixed term of imprisonment for 2 ½ years, and for the dissemination offence a fixed term of 1 year and 3 months. In this court the Crown prosecutor treated both terms as equivalent to the non-parole periods of sentences which might otherwise have been imposed. Noting the 15% discount for the pleas of guilty, he pointed out that the undiscounted figures would have been 3 years and 1 year and 6 months respectively. Given the level of criminality of both offences and the maximum sentence for each of them of 10 years imprisonment, and noting that the sentence for the first count embraced the criminality of the offence of possessing prohibited weapons, he argued that each sentence is manifestly inadequate.

10. [38]

    The Crown prosecutor took issue with his Honour’s observation (quoted at [18] above) that he did not regard fantasy communications or documents as seriously as those involving actual children, citing Jarrold v R (supra). That case involved charges, among others, of producing child pornography arising from internet communications between the offender and other men in which he described sexual activity between himself and children. The sentencing judge had found that this material was the product of fantasy rather than real events (although he recognised the gravity of the dissemination of perverted material of that kind). It was in this context that Howie J (with whom McClellan CJ at CL and Harrison J agreed) made the observation at [53]:

11. [39]

    Martin v R [2014] NSWCCA 124 was an application for leave to appeal against sentences imposed by the sentencing judge in the present case in respect of child pornography offences. Some of the material comprised text messages sent by the applicant to another man describing his fantasies of engaging in sexual acts with boys. As in the present case, the sentencing judge had expressed the view that those communications were not as serious as they would have been if they described real events, although they remained serious because they produced a distorted view of reality in which sex with children was seen as appropriate. In the Court of Criminal Appeal the leading judgment was given by Beech-Jones J (with whom Hoeben CJ at CL and Rothman J agreed). In relation to this issue Beech-Jones J said at [54]-[55]:

12. [40]

    Both those cases were concerned with the dissemination of child pornography and, plainly enough, communication to others of material of this kind is a serious matter even if it is the product of fantasy. In the present case it appears to me that his Honour’s observation about fantasy was directed primarily, if not entirely, to some of the material the subject of the possession charge. While his Honour’s observation about fantasy was expressed to relate to “communications or fantasy documents”, it was made early in the remarks on sentence before he turned to the facts of the child pornography offences and it has the character of a statement of general principle. Later, when considering the facts of the offences, he said of the respondent:

13. [41]

    That said, the emails the subject of the dissemination charge did describe homosexual activity with teenage boys which included caning. Whether his Honour’s finding about a measure of fantasy extended to those communications is unclear. However, even if they did, the statement of Howie J in Jarrold should not be understood as one of universal application. I respectfully agree with the flexible, case by case, approach expressed by Beech-Jones J in Martin.

14. [42]

    In relation to these offences also, the Crown prosecutor sought to support his submission that they are inadequate by reference to Judicial Commission statistics in relation to offences under s 91H(2) of the Crimes Act. These again focus on cases in which full time custodial sentences were passed, but here after a plea of guilty. They cover the period from January 2009 to March 2014. Head sentences range from 6 months to 6 years (a sample of 46 cases), and non-parole periods from 6 months to 2 years (a sample of 19 cases). Here also, the figures do not assist in evaluating the sentences passed in the present case. Certainly, given that those fixed terms should be viewed as equivalent to non-parole periods, the figures do not demonstrate that either of them is manifestly inadequate.

15. [43]

    In relation to the child pornography offences, the Crown prosecutor also submitted that the discount of 15% for the utilitarian value of the pleas of guilty is excessive. Those pleas were not entered until the day fixed for trial. Reference was made to the familiar passage from the judgment of Howie J in R v Borkowski [2009] NSWCCA 102, 195 A Crim R 1, at [31] (9):

16. [44]

    His Honour found the pleas to have had “some utilitarian value.” It seems that the fact that they were entered so late arose from their inclusion in the same indictment as the trial counts but, in my view, nothing turns on this. The fact remains that what Howie J had to say in Borkowski was no more than a guide to the exercise of an undoubted discretion and is not prescriptive. There is no basis on which it could be said that the discount applied by his Honour was beyond the bounds of the legitimate exercise of his discretion.

17. [45]

    In this court the Crown prosecutor submitted that the discount should have been no more than 10%, without conceding that it should have been that high. The practical effect of this dispute is a difference of no more than a matter of months. This ground of appeal is without substance.

18. [46]

    In relation to the aggregate sentence for the trial offences, the Crown prosecutor challenged his Honour’s finding of special circumstances and the extent of the reduction of the non-parole period from the statutory proportion of that account. He acknowledged that the accumulation of the aggregate sentence on the sentences for the child pornography offences justified some reduction, but only such as would maintain a proportion of 75% between the effective non-parole period and the total sentence. That reduction would be modest because the accumulation was only by 6 months. In fact, the total sentence of 14 ½ years and the effective non-parole period of 9 ½ years left a period of parole eligibility of 5 years.

19. [47]

    The application of the 75% ratio to the total sentence would have produced an effective non-parole period of about 10 years and 11 months, leaving a balance of term of 3 years and 7 months. The Crown prosecutor noted that, apart from accumulation, his Honour found special circumstances in the respondent’s need to adjust to community life after a lengthy period in custody and to be closely supervised for “the longer the better.” He referred to cl 218(1) of the Crimes (Administration of Sentences) Regulations 2014, which limits the period during which a parole order may require an offender to be subject to supervision to 3 years. Thus, he argued, the application of the statutory proportion would provide a period of eligibility more than sufficient to meet the purpose of supervision.

20. [48]

    However, as Mr Scragg pointed out, the respondent’s parole would not come to an end when supervision was terminated. For the remainder of the balance of his term he would still be subject to the sanction of parole, whereby his rehabilitation and the protection of the community would continue to be fostered. There is ample authority for the proposition that a finding of special circumstances, and the measure by which it is reflected in the length of the non-parole period, are matters of discretionary judgment although, of course, guided by principle: see, for example, R v Simpson [2001] NSWCCA 534, 53 NSWLR 704.

21. [49]

    That said, in Simpson Spigelman CJ reminded us at [63] (718) that “there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence.” The Crown’s primary complaint in the present case is that the effective non-parole period does not achieve that end.

Accumulation/Manifest Inadequacy?

1. [50]

   It is the issue of accumulation that gives rise to the Crown’s primary complaint about the total sentence. The asserted inadequacy of that sentence is said to arise from the lack of an appropriate measure of accumulation. The Crown prosecutor argued that the 14 year aggregate sentence for the trial offences is the result of inadequate accumulation of the indicative sentences. He noted that the sentences for the child pornography offences were directed to be served concurrently, and that they were accumulated upon the aggregate sentence for the trial offences only by 6 months. He submitted that there should have been partial accumulation of the sentences for the child pornography offences and a greater measure of accumulation of those sentences upon the aggregate sentence. The result, he argued, is an overall sentence inadequate to mark the totality of the respondent’s criminality.

2. [51]

   The Crown prosecutor referred us to two decisions of this court dealing with sentence for offending of this kind, again acknowledging the line of authority, also referred to by Bellew J in MLP at [40] ff, that reference to other cases can only be of limited assistance. These were R v Woods [2009] NSWCCA 55, 195 A Crim R 173 and, more importantly, R v Gommeson [2014] NSWCCA 159, both of them Crown appeals. In both cases the respondent had pleaded guilty. The Crown prosecutor did not take us to the facts and circumstances, or the reasoning of the court, in either of those cases, but relied upon them generally as some indication of an appropriate range of sentence.

3. [52]

   In Woods the respondent had committed a large number of sexual offences, of varying degrees of gravity, upon three boys during two discrete periods in 2005 and 2007. He had also shown the boys pornographic films. A Crown appeal succeeded and sentences totalling 9 ½ years with an effective non-parole period of 6 ½ years were passed, but after a discount of 40% for the respondent’s early pleas of guilty and his assistance to the authorities in the investigation of the matter.

4. [53]

   In Gommeson the respondent was dealt with for 19 sexual offences committed against seven boys, aged between 9 and 16, over a period between early 2005 and late 2011. There were 11 further offences of that kind on a Form 1. In relation to some of the boys the charges were representative counts, being part of a continuing pattern of abuse. He also showed the boys pornographic videos. He was also dealt with for a charge of possessing child abuse material, being photographs he had taken of his victims. In the District Court he had been sentenced to terms of imprisonment totalling 12 ½ years with a non-parole period of 8 ½ years. Re-sentence after a successful Crown appeal led to an overall sentence of 17 years with an effective non-parole period of 12 years.

5. [54]

   The error found by the Court of Criminal Appeal was an inadequate measure of accumulation of the individual sentences. Johnson J, with whom Harrison and Garling JJ agreed, reviewed authority on the issue of accumulation at [106] ff. In particular, at [114] his Honour referred to the need in cases involving several victims to ensure a proper level of accumulation “to guard against a view that, in reality, there is virtually no penalty at all imposed for sexual offences committed against one or more victims”: citing his own judgment in R v Hamid [2006] NSWCCA 302.

6. [55]

   Neither Woods nor Gommeson involved the use of the aggregate sentence procedure under s 53A of the Crimes (Sentencing Procedure) Act. In the present case it was used. As I have said, the indicative sentences ranged from 6 months to 8 years. Plainly enough, there was a significant measure of accumulation to arrive at the aggregate term of 14 years. It should also be noted that Gommeson did not involve “historic child sex offences being dealt with long after the commission of the offences”: Johnson J at [88]. In the present case a number of the earlier offences did fall into that category and, as I have said, his Honour took that matter into account.

7. [56]

   Woods and Gommeson turned on their own facts, as does the present case. I have referred to his Honour’s remarks on sentence comprehensively, including quoting significant passages from it, to demonstrate the thoroughness with which he approached the matter. The remarks betray a careful assessment of the objective features of the case, and an equally careful examination of the sentencing issues which arose with reference to relevant principles. This included the issue of accumulation in which, of course, the question of totality loomed large. This was a difficult sentencing task, involving a determination of the appropriate punishment for offences extending over a lengthy period, affected by different sentencing regimes and patterns of sentence.

8. [57]

   All this the Crown prosecutor fairly acknowledged. Nevertheless, he maintained his submission that the total sentence and the effective non-parole period are inadequate. I am not so persuaded. Since preparing these reasons I have had the benefit of reading in draft the judgment of Schmidt J, and I acknowledge the force of her Honour’s observations about the gravity of these offences. Nevertheless, the sentencing outcome is a substantial overall sentence and effective non-parole period. It may fairly be seen as lenient, but I remain of the view that it does not call for this court’s intervention on a Crown appeal. Schmidt J has referred to the recent decision of the High Court in CMB v Attorney General of New South Wales [2015] HCA 9. The well established principles governing Crown appeals were restated in that case by French CJ and Gageler J at [35], and need not be repeated here.

9. [58]

   I would dismiss the appeal.

10. [59]

    PRICE J: I have had the considerable advantage of reading the draft judgments of Hidden J and Schmidt J. I agree with Hidden J that the overall sentence and effective non-parole period may be regarded as lenient, but as his Honour points out that does not call for this Court’s intervention on appeal. After profound deliberation, I am not persuaded by the Crown that there is an appealable error in the exercise of the sentencing judge’s discretion. Accordingly, I find myself in disagreement with Schmidt J’s conclusion of manifest inadequacy of the aggregate sentence for the trial offences, the sentence for the child abuse material offences and the overall sentence.

11. [60]

    I agree with the orders proposed by Hidden J.

12. [61]

    SCHMIDT J: In this case I find myself in disagreement with Hidden J, who has come to the conclusion that there was no error in his Honour’s assessment of the criminality involved in any of Mr Feuerstein’s individual offences, in the aggregate sentence imposed for the trial offences, or in the overall sentence imposed upon him.

13. [62]

    Mr Feuerstein was sentenced for 23 separate sexual offences against young boys, having been charged with 25 counts, of which he was found guilty at trial of 21 and having entered a late plea to 2 others: one count of possessing child abuse material and another of disseminating such material. The earliest of his offences was committed in 1991. They came to light after execution of a search warrant at his home in December 2011, after the latest and most serious of his sexual abuse offences, involving anal intercourse while his victim was asleep.

14. [63]

    In CMB v Attorney General for New South Wales [2015] HCA 9, Heydon JA’s observations in R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 at [12], in relation to Crown appeals were referred to with approval at [33] - [34]:

15. [64]

    The purpose of a Crown appeal is not simply to increase an erroneous sentence. As discussed in CMB at [35], Crown appeals should be brought only to establish some matter of principle, which is to be understood as “encompassing what is necessary to avoid ... manifest inadequacy or inconsistency in sentencing standards” (drawn from Everett v The Queen [1994] HCA 49; (1994) CLR 295 at 300) and to afford an opportunity for this Court to perform its proper function in laying down principles for the governance and guidance of sentencing courts.

16. [65]

    In Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462, it was observed at [42], however, that cases might arise where the Court concludes that the inadequacy of the sentence appealed from is so marked, that it amounts to "an affront to the administration of justice" which risks undermining public confidence in the criminal justice system. In such a case the Court is justified in interfering with the sentence. Whether this is such a case here arises for consideration.

17. [66]

    This appeal raised manifest inadequacy in the context of the imposition of an aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a considerable number of child sex offences committed against 7 victims, over the course of some 20 years and in respect of the sentences imposed for offences involving possession and dissemination of child abuse material, a significant amount of which fell into the highest categories of seriousness.

18. [67]

    The eight grounds of appeal advanced by the Crown raise inadequacy in the aggregate sentence imposed for the 21 trial offences; an inadequate total non-parole period for the totality of the offending; error in granting a 15% discount for the late plea; manifestly inadequate sentences imposed for the child abuse offences; error in providing only a 6 month partial accumulation for the sentence imposed for child abuse material possession offence; error in making the sentence for the dissemination offence completely concurrent with that imposed for the possession offence; error in the finding of special circumstances; and manifest inadequacy of the overall sentence.

The parties’ cases

1. [68]

   The Crown’s case was that while a significant total sentence of 14 years and 6 months imprisonment with a non-parole period of 9 years and 6 months, was imposed, because of a number of errors in this complex sentencing exercise, the overall sentence was manifestly inadequate, given the totality of the criminality of Mr Feuerstein’s offending.

2. [69]

   Neither party challenged his Honour’s factual findings in relation to the trial offences, but Mr Feuerstein did not accept all of his Honour’s conclusions as to the objective seriousness of various of his offences.

3. [70]

   Mr Feuerstein’s case was that his Honour had properly applied all the applicable sentencing principles which bound him; that the indicative sentences were not unduly lenient; and that both the aggregate sentence and overall sentence imposed were the result of the proper exercise of the sentencing judge’s discretion. It was also relevant that some of his individual offences would not have attracted a custodial sentence, had they been standalone offences.

4. [71]

   On Mr Feuerstein’s case there was no error in his Honour’s fact finding and that the sentence imposed properly reflected the totality of the criminality involved in his offending, as well as paying proper attention to the evidence of his subjective circumstances. The total sentence was proportionate to the total criminality of his offending and was the result of the proper application of the principle of totality. The sentence imposed was well within sentence patterns revealed by the statistics and individual indicative sentences were within the available ranges. Matters of accumulation and concurrence were within the sentencing judge’s discretion and there had been no error in his Honour’s approach, warranting the Court’s intervention on appeal, including in relation to the question of special circumstances and the need for supervision.

5. [72]

   On Mr Feuerstein’s approach, in the circumstances of his case, even if error were established the Court would exercise its residual discretion, particularly given the difficult circumstances under which he must serve his sentence. The Court would not tinker with the lengthy sentence already imposed upon him and in the circumstances, even if error were found, the Court would exercise its residual discretion not to interfere in the sentence imposed upon him.

There was error in this sentencing exercise

1. [73]

   What reveals manifest inadequacy of a sentence which is out of the range of sentences that could have been imposed for particular offending, is a consideration of all of the matters that are relevant to fixing the sentence (see Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [60]).

2. [74]

   In Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 it was explained at [227] that when an aggregate sentence is imposed:

3. [75]

   Nevertheless, an erroneous approach at the stage that specific indicative sentences are set, may reveal error in the aggregate sentenced reached (see R v Clarke [2013] NSWCCA 260 at [56]).

4. [76]

   In this case, after giving indicative sentences for the 21 trial offences, Haesler DCJ imposed an aggregate sentence of 14 years, with a non-parole period of 9 years, commencing on 1 June 2012 and expiring on 31 May 2021. The sentence expires on 31 May 2026.

5. [77]

   I consider that this aggregate sentence was manifestly inadequate, for reasons which I will explain.

6. [78]

   That aggregate sentence was then partially accumulated on the sentence imposed for the possession of child abuse material offence, for which a fixed term of 2 years and 6 months was imposed after a 15% discount, taking into account the Form 1 weapons offence. That sentence commenced on 1 December 2011 and expired on 31 May 2014. The sentence for the dissemination of child abuse material offence was a wholly concurrent term of 1 year and 3 months, commencing on 1 December 2011 and expiring on 28 February 2013. Those sentences were accepted on appeal as reflecting the non-parole period imposed for each of those offences.

7. [79]

   Given the gravity of the child abuse material possession offence, I consider that the sentence imposed for that offence was manifestly inadequate.

8. [80]

   The overall sentence imposed on Mr Feuerstein was the result of his Honour’s application of the principle of totality and the finding of special circumstances.

9. [81]

   I also consider that his Honour erred in the application of the principle of totality. The result of his approach to questions of concurrence and accumulation was that for the entirety of the applicant’s objectively grave offending, a non-parole period totalling only 9 years and 6 months and a total sentence of 14 years and 6 months was imposed. That was only 6 months longer than what was already an erroneously lenient aggregate sentence, for the 21 trial offences.

10. [82]

    The result was that the overall sentence was also manifestly inadequate and below the range of sentences that could be justly imposed for these offences, consistently with applicable sentencing standards (see Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [24]).

The aggregate sentence

1. [83]

   In my view, the conclusion which Haesler DCJ reached failed to give effect to the sentencing principles which he was bound to apply, even though his Honour made extensive reference to those principles, including those which apply to historical sexual offences discussed in Magnuson v R [2013] NSWCCA 50. As Button J there observed at [82], that judgment “says nothing about appropriate sentences for such offences committed today, or in the more recent past”.

2. [84]

   His Honour proceeded on the basis that there was a notable increase in sentences imposed after the introduction of the Sentencing Act 1989 (NSW) and a general increase after the introduction of standard non-parole periods for some offences in 2003. The earliest of Mr Feuerstein’s offences were committed in 1991.

3. [85]

   His Honour noted that many of the trial offences had come to light after police found the material which became the subject of the child abuse material charges at Mr Feuerstein’s home and investigated what was thereby revealed. His Honour considered that the jury had accepted the Crown case on each count to be overwhelming. He found that while individual sentences had to be imposed for each offence, the collective impact of the offences on the victims could not be underestimated and that the Court had to recognise the harm which this offending had caused them.

4. [86]

   His Honour noted that each offence had occurred on a separate occasion; that where a sentence for one offence can impact the criminality of another, the sentences should be served concurrently, but that otherwise there should be at least partial accumulation to reflect the separate and distinct criminal acts committed. Care had to be taken, however, because of the compounding impact of long sentences. Nevertheless, the impression could not be given that there was some kind of discount for Mr Feuerstein’s multiple offending.

5. [87]

   These were undoubtedly difficult considerations to reconcile in this case. As his Honour also observed, in a case of multiple offences and different victims, the approach discussed in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 must be adhered to. That is, the final aggregation of the sentences appropriate for each offence, must result in a just and appropriate measure of the total criminality involved. That was not achieved in this sentencing exercise.

6. [88]

   The evidence at trial to which Haesler DCJ referred in his sentencing remarks, which shed light on the criminality involved in Mr Feuerstein’s offending, revealed that he had a sadistic sexual interest in young boys. His youngest victim was aged 8 years. His offences took place between 1991 and 2011. In 2011 he came to the attention of police who investigated, with the result that there the child abuse material was discovered, which led the police to other victims.

7. [89]

   By that time, the seriousness of his offending had increased to the point where Mr Feuerstein’s last offence involved anal intercourse with a sleeping child. The 21 trial offences had each involved young boys, who Mr Feuerstein knew to be vulnerable for various reasons. He manipulated his victims in various different ways, in order to put them into the position where he was able to commit serious offences upon each of them. Many of these offences involved caning, some resulting in physical injury. That was an aspect of those offences which had to be taken into account on sentencing. In some cases the young victims were given alcohol. In others they were drugged. Mr Feuerstein kept written and in some cases photographic records of what he did to his victims. He also wrote stories fantasising about what he had done and wished to do. From those records it would appear that there were other victims.

8. [90]

   Mr Feuerstein was at one time a police officer. For many years he worked as a security guard. He finally obtained work as a youth case worker with a reputable youth support agency, in order, his Honour found, to gain access to young boys, he having lied about his good character and interest in the welfare of young people. It was then that the offences against JC, his final victim, were committed. In 2011, while JC was at Mr Feuerstein’s home, in abuse of his position and the result of pressure and bribes, he made JC suck his penis (count 24). On a later night JC woke to find that Mr Feuerstein had placed his penis inside his anus, albeit for only a short period, because he objected (count 25).

9. [91]

   The maximum penalty for both these s 61J offences was 20 years, with a standard non-parole period of 10. In R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575, the effect of the introduction of the standard non-parole period was explained generally to be increase the level of sentencing for offences to which it applies. They became one of the statutory guideposts which had to be taken into account in the case of such offences, together with the maximum penalty for the offence (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).

10. [92]

    For the fellatio offence the indicative sentence was 6 years with a non-parole period of 4 years and 6 months. By comparison, for the anal intercourse offence the indicative sentence was 8 years, with a non-parole period of 6 years. The latter was a very lenient a sentence in the circumstances, given the victim’s age; the breach of trust involved in the abuse of Mr Feuerstein’s position of authority; and that it has long been recognised that an offence of this kind is further aggravated by the degrading nature of anal intercourse, even though such an offence, in any circumstance is, of its nature, always degrading. (see R v Russell (Court of Criminal Appeal (NSW), 21 June 1996 unrep) These were all factors which had to be taken into account in assessing where this particular sexual assault offence lay on the spectrum or scale of seriousness (see Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447).

11. [93]

    There were six other victims involved in Mr Feuerstein’s 19 other trial offences. The indicative sentences imposed for those offences ranged from 6 months, for three offences committed in 2007, when Mr Feuerstein caned JK (counts 20, 21 and 23), to 5 years for the anal intercourse offence against JD in 1998 (count 6) and 4 years for the first fellatio offence committed against JC (a different victim), in 1991 (count 1).

12. [94]

    There were no standard non-parole periods applying to Mr Feuerstein’s offences, before those committed in 2007. Counts 1 and 6 each attracted maximum penalties of 20 years. The 1991 offence against JC, then aged 12 or 13, occurred when he stayed overnight at Mr Feuerstein’s home. He was given drink and a “red pill” and later woke to find Mr Feuerstein sucking his penis. He passed out and when he woke again, found that Mr Feuerstein had ejaculated on his chest. The 1998 anal intercourse offence, involved Mr Feuerstein paying JD, then aged 14.

13. [95]

    The caning offences against JK each attracted a maximum penalty of 7 years and a standard non-parole period of 5 years. They included counts 19 and 22, when JK was caned on his bare buttocks, a sentence of 1 year, with a non-parole period of 9 months were imposed.

14. [96]

    The aggregate sentence imposed also encompassed 19 other offences, involving 4 other victims, for which the indicative sentences ranged from 4 years to 6 months.

15. [97]

    The result of his Honour’s approach was that, notwithstanding the indicative sentences given for these 21, separate offences involving 7 different victims, an aggregate non-parole period of only 9 years and a total sentence of 14, was imposed. Given the criminality involved in all of this offending; the serious criminality involved in some of the individual offences, reflected in the higher indicative sentences given; and Mr Feuerstein's significant moral culpability for what he did, notwithstanding the evidence as to his subjective circumstances, the conditions under which he would serve his sentence and the conclusions which his Honour reached as to special circumstances, the error in his Honour’s conclusion as to that aggregate sentence is, in my view, manifest.

16. [98]

    As his Honour observed, the total non-parole period finally imposed had to reflect the minimum period of actual incarceration that Mr Feuerstein had to spend in full-time custody, having regard to all the elements of punishment, including rehabilitation, the objective seriousness of his crimes and his subjective circumstances (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628 - 629).

17. [99]

    The 9 year non-parole period was in my view an insufficient minimum period of incarceration, for the overall criminality involved in this serious offending. That error was compounded by his Honour’s approach to the sentences imposed for the two offences to which pleas were entered and to the application of the principle of totality, in arriving at an overall sentence for the entirety of Mr Feuerstein’s offending.

The child abuse material offences

1. [100]

   In his sentencing remarks, his Honour did not refer to the agreed facts, which revealed how very serious the two offences to which Mr Feuerstein entered his late pleas were.

2. [101]

   The agreed facts revealed that the electronic material found at Mr Feuerstein’s home in December 2011 included some 37,000 still images and 800 videos falling into every category of the Child Exploitation Tracking Scheme, including category 4, (depicting penetrative sexual activity between children and adults) and category 5, (depicting sadism, bestiality or humiliation).

3. [102]

   The print material was some 2,507 images of boys aged between 8 and 12 years in various stages of undress or naked, taken at Mr Feuerstein’s residence. Some of these images had been downloaded from the internet. Others were taken by Mr Feuerstein and had notations written on them, with dates and descriptions. There were photos of boys with their penises and buttocks exposed, some with welt marks from caning. Some were taken without the children being aware.

4. [103]

   The bulk of the 13 written stories found by police were categorised as level 5, the rest 2 and 3. There was also a punishment book found, recording punishment Mr Feuerstein had administered, listing 29 different boys ranging from 9 to 18 years, but mainly aged 12 to 13. It recorded the number of cane strokes administered and where. One was dated from December 1999 to February 2009. The other from January 2001 to February 2009. Three personal diaries provided further information about these incidents, including fondling boys’ genitals, as well as fantasies about the boys in the punishment books. The agreed facts provided examples of these entries. A consent form designed to be signed by boys who were to be caned, was also found.

5. [104]

   The dissemination charge related to email communications of a sexual nature between August and September 2006 to a male in the United States, in which naked pictures of identified victims and others were provided.

6. [105]

   The Form 1 weapons offence related to six handcuffs and an extendable baton also found at Mr Feuerstein’s home. Ten canes of varying lengths and thicknesses were also found there, but were not the subject of this charge.

7. [106]

   For the late plea entered to these two offences a 15% discount was given, Haesler DCJ concluding that “there was still some utilitarian value in them”. That was plainly a very favourable result, given that it was observed in R v Thomson; R v Houlton [2009] NSWCCA 309 at [65] per Spigelman CJ at [154] - [156] and [160] that there should be a discount towards the bottom of the range for late pleas such as those entered on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. There was nothing of that kind here.

8. [107]

   His Honour considered that these two offences were of considerable gravity and moral culpability, noting that there were actual children used in the depictions, with over 1000 falling within the two worst categories. He considered that general deterrence was important in sentencing for these offences. He also considered it relevant that some of the material was fantasy, which was not as serious as that involving actual children. That observation was directed at parts of the written material the subject of the charge, not the images.

9. [108]

   Despite these conclusions, the result of his Honour’s approach was a sentence for the very serious possession of child abuse material offence, with an effective non-parole period of 2 years and 6 months and for the dissemination offence an effective non-parole period of 1 year and 3 months. That period had to adequately reflect Mr Feuerstein’ moral culpability for his offending (see GN v R [2012] NSWCCA 96 at [12]; McLaren v R [2012] NSWCCA 284 at [28] - [29]). The sentence imposed did not do so.

10. [109]

    Proper regard was not paid to what had been discussed in R v Booth [2009] NSWCCA 89 at [41] - [44], as to the particular need for deterrence, in offences of this kind. Given the very serious nature of many of these images and videos, it had to be borne in that:

11. [110]

    The conclusion that the sentence was manifestly inadequate is reinforced when consideration is given to the role which the Form 1 offence had to play in this sentencing exercise.

12. [111]

    That offence had to be taken into account with a view to increasing the penalty that would otherwise be appropriate. As discussed in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42], that had to be done firstly, by greater weight being given to the need for personal deterrence, which the commission of the possession offence indicated. Secondly, by giving greater weight to the community’s entitlement to extract retribution for Mr Feuerstein’s serious offences.

13. [112]

    The 2 years and 6 months non-parole period imposed for the possession offence revealed that these considerations were also not given sufficient weight.

14. [113]

    The sentence was, in my view, manifestly inadequate, given the objective seriousness of this offence, Mr Feuerstein’s moral culpability for his offending, the account which had to be taken of the Form 1 offence and the role which both general and specific deterrence had to play in this sentence.

The overall sentence

1. [114]

   When these errors are considered together with his Honour’s approach to the principle of totality, which resulted in the sentence for the dissemination offence being made totally concurrent with the sentence for the possession offence and all but 6 months of that sentence being made concurrent with the already inadequate aggregate sentence, the manifest inadequacy of the overall sentence imposed on Mr Feuerstein is stark.

2. [115]

   The severity of a sentence is not simply the product of a linear relationship between individual sentences and severity may increase at a greater rate than an increase in the length of a sentence, as his Honour observed (see R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15] - [18]). Nor should a crushing sentence that will induce a feeling of hopelessness and destroy any expectation of a useful life after release be imposed on an offender (see MAK at [17]). What such a sentence is, must be determined, however, by reference to the offences committed, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality (see Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104).

3. [116]

   Questions of accumulation and concurrency must be determined by reference to the question of whether the sentence for one offence can comprehend and reflect the criminality of another offence (see R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11] and [13]). Relevant considerations include the number of victims and whether the offences committed against each occurred on separate occasions (see Van Der Baan v The Queen [2012] NSWCCA 5 at [117]).

4. [117]

   Here, the criminality involved in the child abuse material offences was not comprehended by the offences dealt with at trial. Certainly the images included some images of victims of the trial offences, but given the number and nature of those images and what was involved in these offences by comparison to those dealt with at trial, there was no question of double punishment for common elements of Mr Feuerstein’s offending of the kind considered in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ at [40].

5. [118]

   The sentencing discretion, in my view, miscarried, with the result a manifestly inadequate sentence for the criminality involved in the entirety of Mr Feuerstein’s offending. In the result the appeal must be upheld.

The residual discretion

1. [119]

   The sentence imposed being erroneously lenient, consideration must, nevertheless, be given to whether the residual discretion should be exercised in this case. The Crown accepted that it had to establish that the residual discretion not to interfere in the sentence imposed on Mr Feuerstein, should not be exercised. Mr Feuerstein’s case was that it had not satisfied that onus.

2. [120]

   It is not only the considerable inadequacy of the sentence which must be considered at this point, but also other matters, such as the delay since Mr Feuerstein was sentenced, although there was here no delay by the Crown in lodging the appeal (see R v Price [2004] NSWCCA 186 at [60]; R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244; (2010) 203 A Crim R 398 at [151]; R v Hersi [2010] NSWCCA 57 at [55]). The fact that the sentences for the child abuse material offences has already expired, is also relevant (see Hernando at [30]).

3. [121]

   Mr Feuerstein’s subjective circumstances, particularly while in custody, about which further evidence was received on appeal, must also be considered. In determining whether to exercise the discretion, the Court is not required to put itself back in the position of the sentencing judge at the moment of conviction, but must take into account this further evidence (see R v Reeves [2014] NSWCCA 154 at [19]; R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1 at [28]; R v Allpass (1993) 72 A Crim R 561 at 562).

4. [122]

   Mr Feuerstein’s release on parole is not imminent. He was sentenced on 28 November 2013 and the appeal was lodged in December 2013. One ground was then advanced: manifest inadequacy. The grounds were amended on 3 November 2014, to raise 7 additional grounds. The appeal was heard on 24 November 2014. Further evidence was then received. An affidavit sworn on 11 December 2014 by Mr Michie, a solicitor employed in the Office of the Director of Public Prosecutions, concerning the conditions of Mr Feuerstein’s custody, dealt with in the affidavit which he had sworn on 20 November 2014, was received in December 2014. Further submissions were received in March 2015.

5. [123]

   The sentences imposed for the child abuse material offences commenced on 1 December 2011. They have both expired, the possession sentence on 31 May 2014, long before the hearing of the appeal. The aggregate sentence for the other 21 offences commenced on 1 June 2012 and is due to expire on 31 May 2026.

6. [124]

   The 9 year non-parole period imposed on Mr Feuerstein for the trial offences commenced on 1 June 2012 and is due to expire on 31 May 2021. His sentence expires on 31 May 2026.

7. [125]

   Haesler DCJ’s finding of special circumstances rested on his conclusion as to the accumulation of the sentences imposed and the period Mr Feuerstein would require to adjust to normal community life on release, while under close supervision for “the longer the better”. His Honour took into account his subjective case, which included evidence of health problems which might increase while he remained in custody and to evidence that as a convicted sex offender and former police officer, he would spend time in protection, which his Honour found imposed harsher regimes for any prisoner, especially in respect of non-association, lockdowns and the ongoing fear of physical attack. The evidence led on appeal shed further light on the conditions under which Mr Feuerstein would serve his sentence.

8. [126]

   Mr Feuerstein was aged 52 when he swore his affidavit, where he attested to the conditions of his custodial history, protective custody while on remand and movement to a segregation unit after conviction. He referred to circumstances of a disciplinary charge and complaints he had made to the NSW Ombudsman, his removal from protective custody and threats received from other inmates, given his past professions, one of which resulted in a physical attack. He was then housed in protective custody with other sex offenders, with little access to training programs. His health problems continued.

9. [127]

   Mr Michie’s affidavit, to which was annexed relevant records, confirmed relevant aspects of this account. There was in the result no issue between the parties that the conditions of Mr Feuerstein’s custody will be harsher than that of other prisoners.

10. [128]

    Bearing all of these matters in mind, I have come to the conclusion that while the overall sentence imposed on Mr Feuerstein is so inadequate that it amounts to “an affront to the administration of justice”, the residual discretion not to interfere in the sentence imposed in relation to the child abuse offences should be exercised. That conclusion follows from the delay, which has had the result that Mr Feuerstein has already served the entirety of the sentences imposed for those two offences.

11. [129]

    The same conclusion is not available in relation to the aggregate sentence for the trial offences which, in my view, must be set aside and Mr Feuerstein resentenced. To do otherwise in all of the circumstances I have discussed would, in my view, result in an affront to justice.

Resentencing

1. [130]

   Section 68A(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) prohibits the Court from imposing a less severe sentence on an appeal such as this, than would otherwise be considered appropriate, because of any element of double jeopardy involved in a respondent being sentenced again, or on the basis of any distress and anxiety suffered by a respondent (see R v JW [2010] NSWCCA 49).

2. [131]

   In this case, on resentencing, it is necessary to take into account that it has long been considered that safety while in prison is a relevant consideration on sentencing(see York v The Queen [2001] HCA 60; (2005) 225 CLR 466); that every year in protective custody is equivalent to a longer loss of liberty under ordinary conditions of imprisonment (see AB v The Queen [1999] HCA 46; (1999) 198 CLR 111); and that custody for former police officers will involve a greater degree of hardship than might otherwise be the case (see R v Jones and Kelly (1985) 20 A Crim R 142).

3. [132]

   The evidence received on appeal from Mr Feuerstein, corroborated by that led by the Crown, sheds further light on the considerably difficult circumstances under which Mr Feuerstein will continue to serve his sentence, given his former occupations. That evidence must be taken into account, by ameliorating the sentence which would otherwise be imposed upon him.

4. [133]

   I will not reiterate the circumstances of the trial offences, which I have earlier discussed, or all of the other relevant matters I have earlier referred to. I agree with Haesler DCJ’s conclusion that Mr Feuerstein should have an extended period of supervision once released on parole, given his need for strict supervision when so released.

5. [134]

   For the trial offences, I would resentence Mr Feuerstein to a total non-parole period of 11 years and a total term of 16 years. This reflects indicative sentences which do not depart from those indicated by Haesler DCJ, but with less concurrency than his Honour concluded was appropriate, resulting in an inadequate aggregate sentence for that total criminality involved in those 21 offences.

6. [135]

   I also consider that in the circumstances, for reasons already explained, that the application of the principle of totality should not result in any concurrency between the fixed term sentences imposed for the child abuse offences, the last of which expired on 31 May 2014, with the result that the aggregate term should commence on 30 May 2014, with the non-parole period expiring on 29 May 2025. The sentence would then expire on 29 May 2030.

Orders

1. [136]

   For the reasons given, the orders I would make are:

   1. (1)

      The Crown appeal is allowed.

   2. (2)

      The sentences imposed by the District Court on 28 November 2013 for the trial offences are set aside.

   3. (3)

      Mr Feuerstein is resentenced to an aggregate sentence for the trial offences commencing on 30 May 2014 with a total term of 16 years, expiring on 30 May 2030 and a non-parole period of 11 years expiring on 30 May 2025.