MC v R

1. [1]

   SIMPSON JA: I agree with Hamill J.

2. [2]

   ROTHMAN J: I agree with Hamill J.

3. [3]

   HAMILL J: MC applies for leave to appeal against a sentence imposed by his Honour Judge Hanley SC at Penrith District Court on 27 October 2016. He was sentenced in respect of seven offences involving the indecent and sexual assaults of his daughters when they were children. The sentencing Judge decided to impose an aggregate sentence pursuant to s 53A of the Crimes Sentencing Procedure Act 1999. His Honour imposed an aggregate sentence of ten years with a non-parole period of five years.

4. [4]

   A complicating factor in the sentencing exercise was that the offences took place many years ago. The first offence occurred at some time between 1972 and 1976 while the last offence occurred in May or June 1981. The legislative provisions creating the offences have changed more than once since the offences were committed. Further, the form of a number of the offences has changed so that, for example, acts that may have been caught by a provision proscribing indecent assault might now be caught by an offence described as sexual intercourse with a child or similar. The maximum penalties prescribed for the kinds of acts perpetrated by the applicant have increased markedly in thirty or forty years that have passed since the applicant committed these crimes.

5. [5]

   Further, the nature of the penalties, and the length of the sentences that are imposed for offences of this kind have increased substantially. This is the inevitable result of changes to the relevant legislation but also, no doubt, as a consequence of sentencing courts responding to a hardening of community attitudes towards offences of this kind. [1] While it seems unlikely that child sexual offences are more prevalent today than they were thirty years ago, reporting of such offences has increased with community awareness of the harm that such conduct does to its victims.

6. [6]

   However, it was common ground both on sentence and on the hearing of the appeal that the applicant was to be sentenced by reference to the maximum penalties that existed at the time of the offending and in accordance with sentencing patterns and procedures (including the structure of such sentences) then prevailing. While that is the prevailing view in New South Wales, it is far from free of controversy and the extent of the principle and its application are elusive. I will return to consider those controversies and how they impact on the present appeal.

7. [7]

   The delay in bringing the applicant to justice, and the changes in the approach to sentencing for offences of this kind, underpin the grounds of appeal advanced by the applicant. Those grounds are as follows:

   1. (1)

      The learned sentencing Judge did not correctly apply the principle of general deterrence.

   2. (2)

      The sentencing Judge erred in giving effect to his own personal knowledge of historical sentencing practices.

   3. (3)

      The aggregate sentence is manifestly excessive with respect to the head sentence and minimum term.

8. [8]

   In making submissions in respect of each of these grounds, Queen's Counsel for the applicant referred to the approach taken by sentencing courts at the relevant time to advance the proposition that the sentencing Judge failed properly to apply those principles. For reasons that I will explain, each of the applicant’s grounds of appeal must be rejected and the appeal against sentence dismissed.

Offences and maximum penalties

1. [9]

   The seven offences to which the applicant pleaded guilty were summarised at the beginning of Judge Hanley’s remarks on sentence: [2]

The facts of the offences

1. [10]

   The facts were agreed between the parties and a statement of agreed facts formed part of the prosecution's tender bundle which became Exhibit A. The Judge set out the facts in a passage of his judgment which was not subject to criticism on the appeal. What follows is a reproduction of the summary of facts edited to ensure the victims are not identified:

2. [11]

   Victims’ impact statements were tendered and read by the victims. Those statements spoke eloquently to the devastation that the applicant’s conduct caused to his two daughters. The sentencing Judge noted that the victims suffered “substantial emotional and psychological injury” and that this was continuing.

3. [12]

   The offending involved an egregious breach of the applicant's children’s trust. Each of the offences was serious in its own right and the carnal knowledge of an 11-year-old child (count 7) represents criminality of a very high order. Whenever the applicant stood to be sentenced, there was an inevitability of a lengthy sentence of imprisonment.

The applicant’s personal case and other mitigating circumstances

1. [13]

   The applicant presented a strong case on sentence which required the sternness of the punishment to be tempered with a substantial degree of leniency.

2. [14]

   In spite of the applicant’s denial of the offences when he was first interviewed by police, he pleaded guilty at an early stage when the matter was still in the Local Court. The sentencing Judge reduced the sentence that he would otherwise have imposed by 25% to reflect what has come to be known as the “utilitarian value” of the applicant's plea of guilty.

3. [15]

   Further, the sentencing Judge accepted that the applicant was truly remorseful for his conduct. His Honour appeared to accept the opinion of the psychiatrist, Dr Furst, that the applicant had empathy for the victims even though his "insight into the reasons for his offending is poor".

4. [16]

   An important factual finding made by the sentencing Judge, which is not contested by either party to the appeal, is that the applicant’s moral culpability for the offending was diminished "to a limited extent" by reason of the fact that he had been the victim of similar offending when he was a child. [3] Judge Hanley accepted the opinion of Dr Furst that there was a "linkage" between people who had been sexually abused themselves and people who became perpetrators of such abuse.

5. [17]

   The sentencing Judge also accepted that the fact that the applicant had voluntarily ceased to offend against the children was a "significant mitigating factor". This, in turn, satisfied the sentencing Judge that the applicant was unlikely to reoffend and had good prospects of rehabilitation.

6. [18]

   Because of the length of time over which the offences were committed, and in spite of the applicant's lack of criminal record, the sentencing Judge was not satisfied that he was a person of good character. While the lack of a criminal record was a mitigating feature, [4] no complaint was made in relation to the approach that the sentencing Judge took in this area.

7. [19]

   Finally, the sentencing Judge took into account the substantial delay between the time of the offences and the imposition of sentence.

8. [20]

   By the time sentence was imposed the applicant was an elderly man and had a number of medical conditions of significance in determining the appropriate sentencing outcome. Two medical reports were tendered showing a number of medical conditions including atrial fibrillation, left ventricular dysfunction, hypertension, gout and dyslipidaemia. The applicant required ongoing medical treatment and saw a cardiologist regularly but his general prognosis "can be expected to be good with treatment". However, his doctor provided an opinion that imprisonment would likely impose a greater burden on his overall state of health. His cardiologist provided a report noting that the applicant "has an underlying cardiomyopathy" and had a cardiac defibrillator in place to prevent life-threatening arrhythmias. He has an ongoing risk of stroke and requires ongoing medical assessment of those issues on a six monthly basis.

9. [21]

   The sentencing Judge took all of these matters into account and no complaint is made of the way in which his Honour dealt with them. Those subjective circumstances of the case, set alongside the extremely serious offending, presented the Judge with a typically difficult exercise in striking the correct balance between the various purposes of punishment referred to in s 3A of the Crimes (Sentencing Procedure) Act which, in turn, reflect the common law.

Sentencing in historic child sexual assault cases

1. [22]

   In 2002, this Court in MJR v R sat a bench of five judges “to resolve an issue of sentencing principle on which earlier courts had diverged unwittingly”. [5] The issue concerned the approach a sentencing court should take to sentencing in offences where sentencing practices and patterns had changed in the absence of changes to the maximum penalty. The “divergence of approach” had arisen most sharply in the cases of R v Shore [6] and R v PLV [7] but the issue had also been considered in other cases. [8]

2. [23]

   R v Shore was an appeal against a sentence imposed on the applicant for his involvement in a conspiracy to import cannabis and possession of narcotics reasonably suspected of having been imported into Australia. The applicant was arrested in 1974. After being released on bail, he fled to the United States. He was arrested in 1990 and stood for sentence in 1991. The sentencing Judge held that the “appropriate sentence” should reflect “not only the then applicable statutory maxima but also the appropriate sentencing patterns”. In other words, the “sentencing patterns” applicable in 1974 should be applied. Badgery-Parker J (with whom Mahoney JA and Hunt CJ at CL agreed) described this approach as “completely correct” and noted that neither party had submitted otherwise. [9] A feature of that case was that the Court was provided with reports of 22 sentencing cases decided during the relevant period. [10]

3. [24]

   In R v Watson, a similar approach was taken by a two judge bench (Levine J and Smart AJ) in a child sexual assault case. [11]

4. [25]

   In R v Moon, decided in December 2000, the Court (Fitzgerald JA, Whealy and Howie JJ) applied the principles stated in R v Shore to another case involving historical sexual offending. Howie J stated the relevant principles as follows (authorities and citations omitted):

5. [26]

   Whealy J observed at [23] that “the principle stated in Shore is clear” but “its application in any particular appeal is often a difficult matter”. His Honour noted the need “to have a clear picture as to the range of sentences imposed at the earlier point of time” and contrasted the situation in R v Shore (where over 20 cases were provided to establish the “range”) with the situation in R v Moon where there was no such material provided.

6. [27]

   When the Court (Spigelman CJ, Simpson J and Smart A-JA) came to consider R v PLV in 2001, the decisions in Shore, Watson and Moon were not brought to their Honours attention. [12] Spigelman CJ (with whom Simpson J, as her Honour then was, agreed) rejected a submission that the offender should be sentenced by reference to earlier sentencing patterns. His Honour said at [93] “I see no reason why this Court should establish such a principle for the first time” and at [94] “I do not understand how a court would go about determining what it would have done twenty years before”. His Honour described the approach urged by the appellant as “both artificial and inappropriate” and concluded that “[s]entencing should be based on practices extant at the time of conviction”.

7. [28]

   Smart A-JA dissented and adopted a similar approach to that represented by the earlier cases. His Honour said:

8. [29]

   It was in the context of the divergent approaches demonstrated in those authorities that the Court sat a bench of five to resolve the issue in R v MJR. The Court divided on the issue.

9. [30]

   Spigelman CJ concluded at [31] that the view he expressed in PLV was incorrect. His Honour was of the view that his earlier stated view was “out of keeping” with the provisions of s 19 of the Crimes (Sentencing Procedure) Act which provide that where the maximum penalty for an offence is increased, the offender should only be exposed to the lesser penalty applicable at the time of the offence while, conversely, if the penalty is decreased, the lower penalty should apply. [13]

10. [31]

    The Chief Justice accepted the submission that there was “an element of unfairness involved in sentencing an offender on a harsher basis than would have been the case if he had been sentenced at a time reasonably proximate to the commission of the offence”. [14]

11. [32]

    His Honour acknowledged that he still considered there was a lack of logic in the approach, but he recalled that “the life of the law has not been logic: it has been experience” and recognised “the temptation, which is so apt to assail us, to import a meretricious symmetry into the law”. [15]

12. [33]

    Grove and Sully JJ and Newman AJ agreed with the Chief Justice although both Grove and Sully JJ did so with a degree of diffidence. Grove J at [71] said that “uninhibited by prior authority” he would have been inclined to adopt the approach of Spigelman CJ in R v PLV. Sully J also said that he was inclined to the view expressed by the Chief Justice in R v PLV if “unconstrained by previous authority”. [16] Sully J referred to the difficulty in “putting practical flesh upon the theoretical bones” of the approach taken by the Court in R v Shore. [17] Sully J agreed with the Chief Justice’s reversal of the latter’s position in R v PLV but “only for the reason that the decision in R v Shore has stood unreversed since 1993 and has been followed consistently in subsequent decisions of this Court”. [18]

13. [34]

    Mason P wrote a powerful dissenting judgment. He described Spigelman CJ’s approach in R v PLV as “principled and practical” and was of the view that “the weight of precedent does not stand in the way”. [19] His Honour said at [45]:

14. [35]

    The President questioned the practical implementation of the principle applied in R v Shore and at [56] posed the following “conundrum”:

15. [36]

    His Honour also expressed “some difficulty with a principle that hinges upon the availability of sentencing judges with excellent memory spans.” [20]

16. [37]

    In spite of the curiosities in the judgments in R v MJR, it determined authoritatively that, where there has been a significant delay, a sentencing Judge should apply the sentencing patterns and practices prevailing at the time of the offending rather than those existing at the time of sentencing. That principle goes beyond the more obvious case where the maximum penalty has increased. Sentencing courts (and this Court) have applied this principle since R v MJR was decided. The judgment of Howie J in R v Moon is most frequently cited to explain the correct approach.

17. [38]

    Even so, the precise content of the principle remains elusive and the practical issues surrounding the application of the principle continue to flummox judges at first instance. In MPB v R, Basten J explained a number of difficulties surrounding the application of the principle. [21] At [34]-[35], his Honour set out his view of the steps that need to be followed when sentencing for an historical offence before saying:

18. [39]

    Basten JA was in dissent in MPB v R and did not follow the decision of the five judge bench in R v MJR. Garling J (with whom RA Hulme J agreed) applied the majority decision in R v MJR, noting that it had been “regularly applied by this Court since the decision was delivered”.

19. [40]

    There are (at least) four areas in which the decisions of this Court provide a reasonable consensus as to changes in sentencing practices in dealing with historic child sexual assault offences. Some of these also apply to other offences but tend to arise most frequently in child abuse cases.

20. [41]

    First, the maximum penalties for most sexual offences have increased and, in many cases, standard non-parole periods have been introduced. As a result, the length of sentences imposed in such cases has increased.

21. [42]

    Second, the length of sentences have also increased as the courts gain a better understanding of the impact of such offending on its victims and in response to community expectations that offenders who sexually abuse children will be dealt with severely.

22. [43]

    Third, as a result of legislative changes, the proportion of the non-parole period to the total sentence has increased. [22] In Denham v R the Court noted at [49] that in the period between around 1970 and 1985 “involved the imposition of non-parole periods comprising between 35% and 50% of the head sentence”. A similar conclusion was reached in MPB v R. [23]

23. [44]

    Fourth, since the decision of the High Court in Pearce v The Queen and cases decided in this Court thereafter, there has tended to be a greater degree of accumulation of individual sentences. [24] During the period of the present offences, many cases involving multiple offences resulted in sentences that were substantially concurrent, particularly if there was only one victim. There tended to be less accumulation than there is today when there were multiple victims. Since the introduction of aggregate sentencing, [25] the task of the sentencing Judge has been simplified (at least in this regard) and there is less focus on the precise degree of accumulation and concurrence between individual charges. [26]

24. [45]

    In the present case, speaking generally, neither side took issue with the approach taken by Hanley DCJ as to the general application of these principles. Accordingly, it is unnecessary to venture further into the controversy except where it is relevant to the grounds of appeal.

25. [46]

    One area which remains controversial, and which is important to the resolution of the present appeal, concerns a concept referred to by Button J in Magnuson v R as “judicial memory”. [27] The term was adopted by the sentencing Judge in the present case and the approach that his Honour took is subject to the second ground of appeal.

26. [47]

    In Magnuson v R, Button J referred to five factors that allowed him to conclude that a sentencing pattern could be established in respect of sexual offences committed against children in the late 1970s and early 1980s. These were (1) statistics from the period, (2) summaries of cases, (3) the “general increase in sentences that has occurred across the board in New South Wales”, (4) the upward movement in maximum penalties in respect of the subject offences and, (5) judicial memory. There appears to be little controversy surrounding the first four of those factors.

27. [48]

    However, the use of the fifth factor – “judicial memory” – has been criticised on a number of occasions. Button J dealt with this factor in his judgment in Magnuson v R at [127]-[128]. Reference was made to the judgment of Bell JA (as her Honour then was) in Featherstone v R. [28] In that case, her Honour said that the cases referred to by the applicant suggested “a significant upward trend in the length of sentences” for such offences and that this “impression accords with my recollection of the pattern of sentencing for sexual offences before the introduction of the Sentencing Act”. Button J cited a similar expression of opinion (and recollection) by RS Hulme J in PWB v R. [29] Button J concluded that “my own impression is identical to that of Bell JA and RS Hulme J”. [30]

28. [49]

    It will be recalled that Smart A-JA relied on his own recollection in his dissenting judgment in PLV v R [31] while Mason P in MJR v R expressed reservations about a system that relied on “sentencing judges with excellent memory spans”.

29. [50]

    In MPB v R Garling J (with whom RA Hulme J agreed) made the following observations:

30. [51]

    Basten JA, dissenting in the outcome and in the application of R v MJR, said at [17]:

31. [52]

    I share the doubts expressed by Mason P, Basten JA and Garling J as to the equity and utility of sentencing judges (and judges of appellate courts) relying on their memories of the sentencing patterns in cases that were decided two and three decades earlier.

Ground one: the learned sentencing Judge did not correctly apply the principle of general deterrence

1. [53]

   There is no substance in this ground of appeal. All the sentencing Judge said in relation to general deterrence was that:

2. [54]

   The applicant relies on the fact that the Crown Prosecutor appearing at sentence made a submission that general deterrence was of "paramount importance" in such a case. Putting aside the correctness or otherwise of that proposition, which need not be determined here, there is nothing in the remarks on sentence to suggest that Judge Hanley either accepted that submission or acted upon it.

3. [55]

   A submission was advanced in this Court which, at least implicitly, contended that "general deterrence could apply differently in the context of historical sexual offending". While maximum penalties have been increased and sentencing patterns are more severe, no authority was cited to support the proposition that general deterrence was not a significant factor in sentencing offenders for the sexual abuse of children in the 1970s and 1980s.

4. [56]

   The submission continued that the combination of factors established in the offender's subjective case ought to have resulted in general deterrence having less of a role to play. I do not accept that this is correct. There are some circumstances in which it has been held that a particular kind of offender may be an “inappropriate vehicle” for sentences containing a large component of general deterrence. That includes children and young offenders and offenders who suffer from an intellectual disability or mental illness of some kind. Such a principle might also be invoked, albeit rarely these days, when offences are committed “on the spur of the moment, either in hot blood or in drink or both”. [32] However the fact that an offender is elderly and infirm, along with the other subjective and mitigating circumstances that were established on the applicant’s behalf, are not matters that generally lead to a diminution of the role of general deterrence.

5. [57]

   Dr Furst made it clear that the applicant did not suffer from any relevant mental illness. The offences involved the abuse of two children over a lengthy period of time and, while there was a link between the offender's own experience as a victim of such offences and his commission of these offences, with a consequent reduction in his moral culpability, there was no evidence that would support the proposition that general deterrence did not have some role to play.

6. [58]

   There is nothing in the remarks on sentence to suggest that his Honour did any more than treat general deterrence as one of the many factors to be taken into account in sentencing the offender for the sexual abuse of his children.

7. [59]

   I also note in passing that Spigelman CJ in R v MJR said at [14]:

8. [60]

   However, the context in which that remark was made, and the ultimate conclusion reached by his Honour, lead me to disregard the observation in determining this ground.

9. [61]

   Nevertheless, for the reasons I have given, this ground of appeal must fail.

Ground two: The sentencing Judge erred in giving effect to his own personal knowledge of historical sentencing practices

1. [62]

   The applicant submitted under this ground that the sentencing Judge "made an impermissible use of personal judicial memory” because (it was submitted) his Honour “did not limit the application of judicial memory to simply confirming that sentencing practice has moved adversely to the offender. Instead personal judicial memory was used as a basis for the existence of a sentencing practice.”

2. [63]

   It was submitted that the following passage in the sentencing judgment disclosed such an error:

3. [64]

   In fairness to the sentencing Judge, two things should be observed about this passage of his remarks on sentence. First, it was but one paragraph of a much lengthier exposition of the approach that his Honour took to the fact that he was sentencing an elderly offender in relation to offences committed many years before and at a time when sentencing patterns were far less severe. Secondly, his Honour was guided by the authority in this Court suggesting that a Judge’s memory of sentencing patterns at the time might be used to confirm a pattern of sentencing that is otherwise established by appropriate means.

4. [65]

   By reference to the judgment of Button J in Magnuson v R, Judge Hanley said that he was satisfied that the following principles should apply: –

5. [66]

   His Honour referred to the fact that he had been provided with a number of reports, case summaries for the relevant period as well as comparative case summaries and helpful submissions by the prosecutor on the issue. His Honour went on to make the following observations about the kinds of changes that have taken place since the offences were committed:

6. [67]

   Reading the portion of the remarks on sentence dealing with the correct approach to be taken when sentencing for historical sexual offences, I am satisfied that his Honour did no more than that which was authorised by the earlier judgments of this Court, and in particular the decision in Magnuson v R which his Honour considered at some length. Contrary to the applicant’s submissions, Judge Hanley used his own memory of the practice at the time in a very limited way, namely, to confirm that the material that had been placed before him to establish the pattern and practices of sentencing at the relevant time represented an accurate reflection of those patterns and practices.

7. [68]

   I adopt the criticisms of the use of “judicial memory” made by Basten JA and Garling J in MPB v R. In my opinion, sentencing judges and judges of this Court should rely on the cases decided by this Court, reliable statistics and case summaries for the relevant period rather than their own recollection of events decades before. There is, by now, a body of appellate authority that supports the general propositions I set out above in paragraph [40]-[44]. It will be for the parties to provide the Judge with statistics and case summaries that allow the Judge to determine the patterns of sentencing at the relevant time for offences of a similar kind.

8. [69]

   The ground of appeal as formulated and argued accepts the limited way in which judicial memory might be used and it is unnecessary to determine whether (as I am inclined to think) it ought not to play any part in the process at all.

9. [70]

   Dealing with the ground of appeal advanced, I accept that if the sentencing Judge allowed his own subjective and untested memory to prevail over the material with which he was presented, I would conclude that he fell into error and the Court would be required to exercise the sentencing discretion afresh. However I am not satisfied that this is what occurred. The things his Honour said in relation to the changes in sentencing practices are uncontroversial and favourable to the applicant. I am not satisfied that his Honour used his own memory in order to establish a "range" of sentences for the particular individual sentences which he was required to indicate pursuant to s 53A(2)(b). Nor did his own memory dictate the total aggregate sentence that was ultimately imposed.

10. [71]

    While I accept that there is significant merit in the criticisms made by Queens Counsel in relation to the use of judicial memory, I am not satisfied that the sentencing Judge in this particular case erred in the manner contended by ground 2 or that his own memory of sentencing patterns and practices dictated to any degree the sentences that were imposed.

11. [72]

    For those reasons, I would also reject ground two.

Ground 3: The aggregate sentence is manifestly excessive with respect to the head sentence and minimum term

1. [73]

   The applicant contended that the total aggregate sentence, and the total aggregate non-parole period, was manifestly excessive. Reference was made to a number of comparable cases. [33] In addition to the aggregate sentence and non-parole period, the applicant contended that the indicative sentences nominated by Judge Hanley for counts 2 and 4 were manifestly excessive. Reliance was placed (correctly) on the observations of RA Hulme J in JM v R where his Honour noted that while the indicative sentences are not amenable to appeal, they “may be a guide as to whether error is established in relation to the aggregate sentence”. [34] I will deal first with the sentences indicated in relation to counts 2 and 4.

2. [74]

   In complying with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act, the sentencing Judge indicated both the total sentence for each offence and the non-parole period in relation to each count. I note in passing that, unless a standard non-parole period applies to an offence, it is not necessary to indicate the non-parole period that would have been imposed “had separate sentences been imposed instead of an aggregate sentence”. [35] However, the statute does not prohibit the indication of a non-parole period and the periods nominated in this case merely reflected his Honour’s decision to impose a non-parole period that represented 50% of the total sentence.

3. [75]

   The indicative sentence for count 2 was 18 months with a non-parole period of 9 months. This was the sentence after the application of the discount of 25% for the plea of guilty. The offence was charged under s 76 of the Crimes Act which attracted a maximum penalty of 6 years imprisonment. The offence as it stood in 1975 encompassed a wide range of sexual conduct directed towards females under the age of 16 years. The victim was the applicant’s natural daughter. She was just five years old. The applicant touched her inside her underwear and, with his other hand, removed his penis and told his daughter to touch his penis. The incident only came to an end because the applicant’s wife screamed because she had seen a snake. While the physical act was, as the applicant submitted, toward the lower end of acts then contemplated by s 76, the breach of trust was substantial and the age of the victim a significant factor in determining the appropriate sentence. The sentencing Judge accepted that the offence lay “towards the lower end of objective seriousness”. The applicant accepts that a custodial sentence was appropriate. I am not satisfied that the length of the sentence indicated was beyond a permissible range.

4. [76]

   The indicative sentence for count 4 was 45 months with a non-parole period of 22 months. The offence was also charged under s 76 of the Crimes Act. The victim was aged 15. She was the applicant’s natural daughter. The applicant performed cunnilingus on the child. The sentencing Judge assessed this offence as falling within “the upper range of objective seriousness” for an offence captured by s 76 (assault and commit an act of indecency). The applicant submitted that this finding was “not open” to his Honour. However, an assessment of the objective seriousness is a matter within the peculiar province of the sentencing Judge. [36] It was also submitted that the indicative sentence for count 4 was “difficult to reconcile” with the indicative sentences for counts 1, 3 and 6. Counts 1 and 3 involved digital penetration when the children were much younger (aged 9 years). The same putative sentences were indicated for those counts as was indicated for count 4. It was open to the sentencing Judge to take the view that the age of the children was balanced against what his Honour considered to be the more serious act of performing oral sex on the child.

5. [77]

   There is more merit in the complaint involving a comparison between the indicative sentence on count 4 with that indicated for count 6. Count 6 also involved an act of cunnilingus when the child was 11 years. She was asleep as a result of pain relief medication and woke up to find the applicant performing oral sex upon her. However, as the respondent points out, the sentencing Judge said that, applying the sentencing practices of the time, the sentence for count 4 would have been substantially, if not entirely, concurrent with the sentence imposed for count 5 – an act of carnal knowledge committed a short time later. Accordingly, the indicative sentence for count 4, even if it was disproportionate with the indicative sentence for count 6, had no effect on the aggregate sentence.

6. [78]

   I am not satisfied that the indicative sentences for counts 2 and 4 support a contention that the aggregate sentence exceeded an appropriate discretionary range.

7. [79]

   The real question under this ground is whether the total aggregate sentence of 10 years and/or the aggregate non-parole period of 5 years were “plainly unjust” or “manifestly wrong”. [37] I have considered the cases relied on by the applicant on the hearing of the appeal, along with the material provided to the sentencing Judge. [38] I have also considered the sentencing outcomes in other cases not referred to in the arguments under this ground. [39] Some of these cases are more serious than that of the applicant, some substantially so. [40] None of the cases is truly or entirely comparable with that of the applicant. The material establishes that sentencing patterns at the time of this offending were far more lenient than they are today, none of the cases relied on is truly comparable with the applicant’s case.

8. [80]

   The present case involved an egregious breach of trust, and repeated sexual abuse of the applicant’s daughters, over a period approaching 10 years. The offending involved touching on the vagina, digital penetration of the vagina, cunnilingus and carnal knowledge of both girls when they were 11 and 15 years of age respectively.

9. [81]

   There is no suggestion that the indicative sentence on count 7 was outside of an appropriate discretionary range. That was an act of carnal knowledge committed when the victim was 11 years of age. The indicative sentence was 7½ years. Even allowing for the sentencing practices of the time, the additional penalty imposed for the six other serious offences was only 2½ years. This shows that the sentencing Judge was acutely aware of those earlier sentencing practices and strongly militates against a finding that the total aggregate sentence was outside an appropriate discretionary range.

10. [82]

    I am not persuaded that the aggregate sentence (or aggregate non-parole period) imposed on the applicant was unreasonable, manifestly wrong or unjust. Ground 3 must also be rejected.

Orders

1. [83]

   The sentence imposed on the applicant was a stern one given his age, subjective circumstances and the sentencing patterns at the time of the offending. The matters argued under ground 2 raised an important issue. For those reasons I would grant leave to appeal. However, for the reasons I have given, the appeal must be dismissed.

2. [84]

   Accordingly, the orders I propose are:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.