Flaherty v R; R v Flaherty

HOEBEN CJ at CL:

At trial the Crown case was that the appellant, who was at all material times a Catholic priest, performed fellatio upon the complainant (Count 1) and inserted an object into his anus (Count 2). The offences occurred on the same evening at approximately the same time.

At trial the only evidence of the actual offences was that of the complainant. There was evidence of complaints, the earliest in time being approximately six years after the occurrence of the offences.

The appellant has appealed against his conviction on the following grounds:

In order to understand the basis for the appeal, it is necessary to set out in some detail the evidence of the complainant and those parts of the summing up to which objection has been taken.

The relevant evidence of the complainant in relation to the specific charges can be found at T.27.8.2015, p 8.40 – 10.10.

The relevant parts of the summing up are as follows. I have underlined those portions to which the Grounds of Appeal apply.

The appellant submitted that by directing the jury in those terms his Honour effectively reversed the onus of proof so that a miscarriage of justice occurred, necessitating a retrial. In support of that proposition the appellant relied upon the suggested direction in the Judicial Bench Book at 1-490 which provides:

The appellant submitted that the correct approach when dealing with multiple charges was that set out in the “suggested direction” in the Judicial Bench Book, i.e. that each count has to be considered individually and the evidence in respect of each count has be weighed and considered by the jury to determine whether the prosecution has discharged their onus in respect of that count and established the essential elements of that count beyond reasonable doubt.

The appellant submitted that by directing the jury that their verdicts must be “logically consistent”, the trial judge invited the jury to render a verdict not based on the evidence in respect of that count, but on their decision in relation to a previous count. He submitted that if it be accepted that the jury ought to have approached their task by considering the evidence for and against each count on its own terms and if it be accepted that a jury may properly have come to differing conclusions with respect to each of those counts, it followed that a direction in the terms employed by the trial judge invited or required the jury to engage in a compromise of their verdicts or to seek a consensus in circumstances where such a consensus might involve a departure from the burden and onus of proof.

The appellant submitted that the invocation by the trial judge of the principle of “logical consistency” between the verdicts introduced an impermissible risk that the consideration of the jury in respect of one count might improperly be affected by the desire to render that consideration consistently with their position or approach in the remaining count. The appellant submitted that it was not possible to determine the extent to which that may have occurred in this trial so therefore the verdicts in relation to each count must be tainted and therefore set aside. This was because it was not possible to determine which of those verdicts might have been impacted by the quest for a “logical connection with the other”.

The appellant submitted that as a general principle, a verdict on any individual count properly considered might not be “logical” at all. An accused might as a matter of logic appear guilty and the jury might believe that, but if the evidence did not establish the elements of that count, and if the prosecution failed to prove the offence beyond reasonable doubt, then the appropriate verdict properly considered by the jury was one of not guilty irrespective of any logic or logical consistency.

The appellant submitted that by directing the jury that they might render a verdict of “guilty” in one count and “not guilty” on another “if there is a logical reason for it” or “if they are logically consistent” the trial judge effectively reversed the onus of proof. In other words, his Honour effectively directed the jury that if they found the accused guilty [or not guilty] of count 1, then they must render the same verdict on the remaining count unless the jury could come up with a compelling reason not to do so. The appellant submitted that by phrasing the direction in the manner in which he did, his Honour elevated the jury’s finding with regard to one count to the level of evidence that they must consider in regard to their determination of the remaining count. The appellant submitted that by doing so, the trial judge inadvertently extended the definition of “reasonable doubt” by adding a new criterion whereby if the jury found the accused guilty on one count but not on the other, there must then be a “logical reason” for that finding.

As a preliminary matter, Rule 4 of the Criminal Appeal Rules applies to these Grounds of Appeal. Rule 4 provides:

It is clear from the transcript that no such objection was taken at trial and the appellant accepts that he requires leave to raise this ground. The appellant submitted that because the direction gave rise to a miscarriage of justice, leave under r 4 should be granted.

The fact that no objection was taken at trial does, however, give rise to a further consideration beyond the requirements of r 4. This was referred to by Yeldham J in R v Tripodina [1998] 35 A Crim R 183 at 191 where his Honour said:

Given the factual circumstances of this case, i.e. that the two charges related to events which occurred at almost the same time on a single occasion, the observation of Yeldham J must carry considerable weight.

Only limited weight can be given to the suggested direction in the Bench Book. That direction is no more than one way of expressing a particular principle. It is not the only way of so doing. Moreover, the particular direction upon which the appellant relied was intended to be given at the opening of a trial following the empanelment of the jury. It is not a suggested direction for use in the summing up. In any event, what the trial judge in this case said following the jury’s empanelment was in accordance with the suggested direction:

The direction which his Honour gave in the summing up was fully consistent with the “Markuleski” direction which is set out in the Bench Book at 5-1590 as follows:

An analysis of the decision of this Court in R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 makes it clear that his Honour’s direction was in accordance with the guidance provided by that case and that no miscarriage of justice has occurred. By way of background, R v Markuleski was a decision of a five judge bench (Spigelman CJ, Wood CJ at CL, Grove and Simpson JJ and Carruthers AJA) which considered the giving of directions in a case involving multiple counts when different verdicts could be entered by a jury in relation to such counts in word on word cases and where the central issue is the credibility of the complainant. In particular, the Court had to consider what was said to be an apparent conflict between two High Court decisions Jones v R [1997] HCA 12; 191 CLR 439 and Mackenzie v R [1996] HCA 35; 190 CLR 348.

A central part of the reasoning in Jones v The Queen is at p 453 where the plurality (Gaudron, McHugh and Gummow JJ) said:

This led to trial judges adjusting their directions to juries as did Dunford J in R v RAT [2000] NSWCCA 77; 111 A Crim R 360 as follows:

Spigelman CJ (with whom Wood CJ at CL and Carruthers AJA agreed) said in Markuleski in relation to such an approach:

Having reviewed the authorities Spigelman CJ set out his conclusions as follows:

Wood CJ at CL made observations to similar effect:

Moreover, the test identified in Mackenzie by the plurality (Gaudron Gummow and Kirby JJ) was one of “logic and reasonableness”:

Given the facts of this case, there was nothing misleading or contrary to principle in his Honour’s direction. Because this was a word against word case in which the offences occurred at almost the same time, a Markuleski direction was appropriate, as was the qualification that if the jury were to find different verdicts, there had to be a logical basis for such a finding. Such a direction in the circumstances of this case was quite unexceptionable. It was expressed in simple and easily understood language and was directly relevant to the evidence. It could not be said that the appellant lost a reasonable chance of an acquittal.

Leave to rely upon an error to which no objection has been taken at trial pursuant to r 4 will be granted only where the appellant can demonstrate that the ground is arguable and that a miscarriage of justice has resulted so that this Court should grant leave to permit the ground to go forward (R v Abusafiah (1991) 24 NSWLR 531 at 536; 56 A Crim R 424; Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 319 [72]; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 at [22] – [24]).

For the reasons indicated, I am not satisfied that the appellant has an arguable case nor that the trial judge made an error of law, nor am I satisfied that his conviction involves a miscarriage of justice. I would not grant leave pursuant to r 4. The appeal against conviction should be dismissed.

I have had the advantage of reading the draft judgment of Simpson JA in relation to the sentence appeals. I agree with the conclusion of her Honour and the orders which her Honour proposes. I agree with her Honour’s conclusion that in the particular circumstances of this case, identification of error by the Crown requires that this Court re-sentence the applicant even though the Crown appeal against sentence is dismissed.

SIMPSON JA: I have read in draft the judgment of Hoeben CJ at CL. I agree with his Honour that the appeal against conviction ought to be dismissed, for the reasons he gives.

Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), the sentencing judge imposed an aggregate sentence of imprisonment for 2 years and 3 weeks, commencing on 26 February 2016, with a non-parole period of 6 months. As will be seen, that sentence incorporated more offences than the two on which the appellant stood trial, the subject of the appeal against conviction. The sentencing judge granted bail to the appellant pending appeal. The appellant has therefore served no part of that sentence.

The Crown has, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), appealed against what it asserts to be the manifest inadequacy of the sentence. The appellant (having regard to the proliferation of proceedings, it is convenient to continue to refer to Mr Flaherty as the appellant) has sought leave to appeal against what he asserts to be the manifest excess of the sentence (Criminal Appeal Act, s 5(1)(c)).

In all, the appellant stood to be sentenced for five offences. All were offences against s 81 of the Crimes Act 1900 (NSW), which, at the relevant times, provided:

The appellant entered pleas of guilty to three counts, and pleas of not guilty to two. The facts relevant to those to which he pleaded guilty were put before the sentencing judge by way of two Agreed Statements of Facts. The facts of the two offences to which he pleaded not guilty, but was convicted after trial, of course, emerge from the evidence given in the trial. They are alluded to in the judgment of Hoeben CJ at CL, but may, for the purpose of considering the sentence appeals, be more fully stated as follows.

Chronologically, the first two offences were committed in about September 1972, against a victim to whom I will refer as SC. SC was then aged 15, and actively involved in the church, and a regular attender at Mass. On occasions, the appellant (who, it will be recalled, was a priest of the Catholic church) drove SC home after church activities. He often raised the subject of masturbation. On one such occasion, the appellant parked his motor vehicle, and asked SC to touch his penis. SC complied, and then exposed his own penis. The appellant masturbated SC’s penis for a brief period. On another occasion, at the presbytery, the appellant invited SC into his room and asked him to sit on the bed. He placed his hand over SC’s penis, outside his clothing, for a short time. The appellant entered pleas of guilty to each of these counts in the Local Court on 16 September 2014.

The third and fourth offences were committed on a single occasion, between August 1977 and November 1978, against a victim to whom I will refer as DA. The appellant entered pleas of not guilty to each of these counts. These counts were the subject of the trial and the conviction appeal.

DA’s age is not disclosed with any precision in the evidence, but it can be deduced that he was between 11 and 13 years of age. The appellant owned a holiday house in a south coast town, to which he invited DA and others, including DA’s sister. DA and another boy slept in separate beds in one bedroom. The appellant slept on a stretcher between the beds. During the night, and while DA was asleep, the appellant engaged in fellatio upon him. DA woke. He did not know what to do, and lay still. The appellant continued to fellate DA to ejaculation. He then masturbated DA. The appellant then rolled DA over, so that he was facing the wall, and he inserted something into DA’s anus. (It is not clear whether this was a body part or another object, but the likelihood is that it was a finger.) DA told the appellant to stop. The appellant told DA not to make a noise. The next day, he told DA not to tell anybody what had happened, and that, if he did tell his parents, they would not believe him. A couple of weeks later, at the church, the appellant again told DA not to tell anybody what had happened.

The fourth and fifth offences were committed in 1981, against PI, then aged about 14. They were committed in similar circumstances to those against DA. PI’s family were regular churchgoers. The appellant invited PI, his younger brother, and several other boys to the south coast house. Three of the boys slept in one room, PI in a single bed, the other boys in double bunks. The appellant slept on a stretcher bed between the boys’ beds. The other boys slept in another room. The appellant talked about sexual matters (“the birds and the bees”) and about masturbation. During the night, the appellant reached from his stretcher bed to PI’s bed, and rubbed PI’s genital area. PI pushed the appellant’s hand away, and the appellant replaced it and continued rubbing. PI again pushed his hand away, and turned over to face the other way. PI was very frightened. The appellant entered pleas of guilty to each of these counts in the Local Court on 16 October 2014.

Before the sentencing judge were Victim Impact Statements by SC and DA. Each wrote convincingly of the profound effect on his life of the abuse, in ways it is not necessary to detail.

After the jury verdict the appellant wrote a document headed:

Also before the Court was a great deal of material concerning the appellant’s personal circumstances. This consisted of medical reports, one report of an experienced forensic psychologist, and a Pre-Sentence Report to which was attached a comprehensive psychological report prepared by a senior psychologist of Community Corrections (Corrective Services NSW).

What emerges from this material can be summarised as follows.

The appellant was born in June 1943. After completing the Leaving Certificate he entered a training college for the priesthood. He completed his training at the Manly seminary at about the age of 23. He was then sent to various parishes. He retired at 67.

He was 28 years of age at the time of the earliest of the offences, 38 at the time of the last, and 72 at sentencing. He was arrested in July 2013 (when he was 70 years of age, 42 years after the first of the offences, and 32 years after the last). He was granted conditional bail and has to date spent no time in custody.

His physical and mental health are both parlous. On 27 January 2015, a geriatrician, Dr Sasi Sasikaran itemised, on a “problem list” 10 separate conditions. That included:

The appellant is under the care of a specialist cardiologist, Dr John England, who reported on 14 September 2015 (almost a year ago) as follows:

The psychologist (Mr Tim Watson-Munroe) considered the appellant to be depressed and anxious with a remote prospect of re-offending. Having regard to the appellant’s educational qualifications, he considered that there had been a significant decline in the appellant’s cognitive capacity. As an experienced forensic practitioner, he considered that the appellant would have “an exceptionally difficult time in custody” due to his age, the nature of the offending, his general vulnerability, and the unlikelihood that he would, in custody, receive the type of specialist care he is currently receiving from Dr England.

The sentencing judge outlined, in some detail, the factual circumstances of each offence, and, also in some detail, the two Victim Impact Statements. He recognised that it was necessary that he sentence in accordance with the prevailing sentencing regime (including sentencing patterns) at the time of the offences (see below for a discussion of this principle). (In this respect he was assisted by a collection of sentencing decisions relating to offences committed at, or close to, the times of the present offences, put before him by the legal representatives of the parties.)

He assessed, individually, the objective gravity of each of the offences. With respect to the offences against SC, he categorised the first (touching SC’s exposed penis) as “not at the lowest end of seriousness for this sort of crime … [but] far from being the most serious example of this sort of crime and would be towards the lower end but not at the lower end”, and the second (putting his hand on SC’s penis outside his clothing) as “towards the lower end, or towards the lowest end”.

He assessed both offences against DA as being “in the upper level of seriousness”; that was because “both involved penetration”. He assessed the offence against PI also as being “towards the lower level of seriousness”. These assessments generally reflected acceptance of the submissions made on behalf of the Crown, and not contested on behalf of the appellant. He recognised however, that each offence involved a breach of trust, an aggravating feature.

The sentencing judge assessed the risk of re-offending as “very low”. He referred, again in detail, to the medical and psychological evidence, including the Pre-Sentence Report. He did not treat the appellant’s post-trial letter as evidence of remorse. After reviewing the submissions of counsel, he turned to consider the appropriate sentences. Somewhat contradictorily of his earlier assessment, he categorised the first offence against SC, and the single offence against PI, as “more serious examples” of crimes against s 81, each deserving of imprisonment for 1 month, which he subsequently reduced by 25 per cent to take account of the appellant’s early pleas of guilty: see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. The second offence against SC he considered to be less serious, adequately punishable by a good behaviour bond. He recognised that the offences against DA were serious, but not in the category of “worst case”. He determined that:

He rejected a submission that the sentences be suspended, and went on:

It appears that, during the process, his Honour had a change of mind. Notwithstanding his earlier indication that he would “fix the various sentences to be served concurrently” he then stated that he would impose an aggregate sentence under s 53A of the Sentencing Procedure Act, and, as required by sub-s (2)(a) thereof, indicated the individual sentences he would otherwise have imposed. These were not precisely as he had earlier proposed. The indicative sentences in relation to the first offence against SC and the offence against PI were, respectively, imprisonment for 2 weeks and imprisonment for 1 week, giving a total of 3 weeks. He indicated that, in respect of the second offence against SC he would have imposed a good behaviour bond. In respect of the offences against DA he stated that the indicative sentences were of 2 years to be served concurrently.

He then proceeded to sentence the appellant to imprisonment for 2 years and 3 weeks, and specified a non-parole period of 6 months.

The Crown identified five grounds of appeal. These were pleaded as:

The grounds proposed on behalf of the appellant were pleaded as follows:

The statutory provisions permitting appeals against sentence by the Crown, and appeals against severity by offenders, are not framed in identical terms.

Section 5(1)(c) of the Criminal Appeal Act provides:

Section 6(3) provides for the disposal of such an appeal. It provides:

Section 5D(1) provides:

It is convenient to deal first with the appellant’s application.

Ground 1 as framed is obscure. However, in written submissions, it was acknowledged that the sentencing judge dealt appropriately with most, if not all, of the relevant sentencing considerations. What emerged from the submissions was that Ground 1 as argued was essentially co-extensive with Ground 2. The complaint was that, contrary to the majority decision in R v MJR [2002] NSWCCA 129; 54 NSWLR 368, the sentencing judge failed to sentence in accordance with the sentencing practices that prevailed at the time the offences were committed. It is established by MJR (at least unless and until the High Court comes to rule on the question) that, in sentencing for what have come to be called “historical” offences, a court must endeavour to sentence in accordance, not only with historical statutory provisions, but also historical sentencing patterns. While the dissenting judgment of Mason P makes compelling reading, that question was settled by the majority. Grounds 1 and 2 were pursued, notwithstanding recognition that his Honour expressly stated the principle. At [20] of the Remarks on Sentence, he said:

In Magnuson v R [2013] NSWCCA 50 Button J, with whom McClellan CJ at CL and Bellew J agreed, reviewed in detail sentencing patterns applicable to sexual offences committed against children in the late 1970s and early 1980s. It must be recognised that the review in Magnuson does not constitute a statement of principle that ought, in the interests of judicial comity (unless a subsequent court considered it to be “plainly wrong” – see Gett v Tabet [2009] NSWCA 76; 254 ALR 504) be regarded as binding. Rather, the product of the review is closer to a finding of fact, dependent upon the evidence adduced in the particular case. While bearing that in mind, the judgment contains useful historical data for subsequent courts faced with the same issue, allowing them to avoid the need for repetitive presentation of what amounts to evidentiary material to establish a fact common to many cases. Counsel for the appellant referred, in her written submissions, to Magnuson; it was not suggested by the Crown that reliance ought not to be placed upon it. In those circumstances, and being conscious of the reservation I have mentioned, I propose to treat the findings in Magnuson as permitting a conclusion that, at the times relevant to the current offences, sentencing for sexual offences against children was significantly more lenient than it is at the present time. Not least is that because of the limited range of statutory offences, and the maximum penalty applicable to the offences with which the appellant was charged.

There are practical difficulties in applying MJR. One such difficulty is that sentencing options have, quite dramatically, changed. For example, from 1971 until 2010 an option of periodic detention, in one form or another, was available: see Periodic Detention of Prisoners Act 1970 (NSW); Sentencing Procedure Act Pt 5 (no longer in force in its previous form). Since 2010 periodic detention has not been available as a sentencing option. Other non-custodial options such as intensive correction orders and home detention that are now available as alternatives to fulltime custody were not then available.

The dictates of sentencing legislation have also changed; s 44(1) of the Sentencing Procedure Act specifies the order in which the non-parole period and the balance of term are to be set. Section 44(1) specifies (subject to variation) a proportion between the non-parole period and the total sentence. Aggregate sentencing under s 53A was not, until 2010, a sentencing option.

A strict application of MJR would suggest that none of the modern sentencing options is available in respect of “historical” sexual offences. Yet there is no alternative to sentencing in accordance with s 44(1) of the Sentencing Procedure Act, at least to the extent of first setting the non-parole period, and then the balance of term. And there is no suggestion that aggregate sentencing is not available in respect of “historic” offences.

It must also be remembered, that, in Magnuson, Button J concluded:

The appellant’s submissions focussed upon the “starting point” of 4 years with respect to the offences against DA; that, it was argued, indicated that the sentencing judge, although he correctly stated the MJR principle, did not adequately put it in to effect. Counsel posed the appropriate question for the sentencing court as:

Counsel argued, therefore, that, while the offences against DA called for a custodial penalty, they did not, taking into account his current personal circumstances, call for such a sentence to be served in fulltime custody. Suggested options available were home detention and the suspension of any sentence imposed.

The complaint under Ground 3 was that the sentencing judge failed to have adequate regard to the appellant’s age, state of physical ill health, dementia, and the delay in the bringing of the charges.

Accepting, as I must, that the judge was obliged to sentence, as nearly as possible, in accordance with sentencing standards of the dates of the offences, I am not satisfied that it has been shown that he failed to do so. He expressly acknowledged the principle. He had explicit regard to the objective seriousness of all offences, especially those against DA. In respect of DA, he was sentencing, not for one, but for two, offences. Even in 1977 and 1978, the offences against DA would have been regarded as serious instances of indecent assaults. Grounds 1 and 2 must be rejected.

Although, as will be seen, it was erroneous to nominate a starting point of 4 years, by reference to objective gravity and the maximum sentence, and then reduce that specifically by reference to circumstances personal to the appellant, so as to impose an aggregate sentence of 2 years and 3 weeks, with a non-parole period of 6 months, the erroneous process demonstrates clearly that the full weight was given to the appellant’s personal circumstances. That is, the reduction from the starting point of 4 years to 2 years and 3 weeks by reason only of “subjective circumstances” shows conclusively that due weight was given to those circumstances. Ground 3 also must be rejected.

In my opinion, none of the grounds identified by the appellant can succeed.

With respect to the grounds raised by the Crown, on behalf of the appellant error was conceded in two respects, those raised in Grounds 1 and 2. In each case, the concession was correctly made. Why that is so may be briefly explained.

In Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584, Gaudron, Gummow and Hayne JJ said:

This is a clear case of sentencing by the forbidden “two-stage” approach, as revealed by [57] to [60] of the Remarks (extracted above). Error is therefore demonstrated.

Similarly, the same matters (that is, the applicant’s age and state of ill health) have been taken into account with respect to both the selection of the sentence, and the question of special circumstances. In R v Fidow [2004] NSWCCA 172 Spigelman CJ cautioned against such “double counting”. (That error affects the selection of the non-parole period.)

By Ground 3 the Crown complains that the sentencing judge determined that the sentences for the two offences against DA be served concurrently. It argued that the seriousness of the offences called for a measure of accumulation.

Two answers may be made to this contention. The first is that the indicated intention that the sentences be served concurrently was made at a time when, it seems, his Honour proposed to impose individual sentences; it was overtaken by his subsequent decision to impose an aggregate term of imprisonment. The question of accumulation or concurrency thus became irrelevant. The very nature of an aggregate sentence is that the sentences for all offences are served concurrently. The central question is whether the aggregate sentence adequately meets the totality of the offending. That is the question raised by Ground 5.

The second answer to the contention is to be found in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (discussed in another context below). At [43] the High Court said:

By Ground 4, the Crown complains of error in the failure of the sentencing judge to have regard to general deterrence.

It is incontestable that no reference was made in the sentencing remarks to this sentencing consideration. It is an important factor in respect of most, if not all, offences, but may be thought to have particular importance in the case of sexual offences against children. That is in part because such offences are, ordinarily, committed in private, without witnesses, and, as is now known, child victims are hesitant to reveal the offending, meaning that the offences are difficult to expose.

Counsel for the appellant sought to resist this ground on the basis that, in the circumstances, no questions of personal deterrence arose, and the personal circumstances of the appellant rendered general deterrence of little or no weight. The former proposition may be accepted; the latter may not. It was an error to fail to have regard to an important sentencing consideration.

My conclusion, therefore, is that three of the five grounds pleaded by the Crown have been made out. That does not dictate the result of the Crown appeal. In Bugmy v The Queen [2013] HCA 37; 249 CLR 571, the High Court said:

Notwithstanding the errors shown, I am not satisfied, in the circumstances, that the sentence imposed was below the range of sentences that could justly be imposed for the offences consistently with (relevant) sentencing standards. Even if I were, for reasons that follow, I would exercise the discretion that resides in this Court to dismiss the Crown appeal. I now turn to those reasons.

It will be observed that, although I have proposed that the Crown appeal be dismissed, and I have concluded that the grounds pleaded by the appellant should fail, I have not proposed an outcome to the appellant’s application for leave to appeal.

In Bugmy, in the passage set out above, the High Court stated the questions that arise on a Crown appeal under s 5D of the Criminal Appeal Act. Those questions are not entirely consonant with those that arise in an appeal for which leave has been granted under s 5(1)(c). It is s 6(3) that specifies the approach to be taken in those circumstances.

In Kentwell, the High Court said of s 6(3):

I am conscious that Kentwell was decided in the context of s 6(3) of the Criminal Appeal Act, and not with specific reference to s 5D of that Act. It cannot, however, be overlooked that the appellant has not been sentenced according to law. The Crown has demonstrated, and the appellant conceded, that the sentencing judge acted “on wrong principle”; the sentencing process was flawed at the outset in that he engaged in the prohibited two stage process. It is neither possible nor appropriate to enquire what (if any) impact that error had on the outcome.

But that is an error that was pleaded by the Crown in its appeal. Although it was conceded on behalf of the appellant to be an error, it was not adopted on behalf of the appellant as an independent ground of his proposed appeal. A question arises therefore, whether the identification of error by the Crown can be turned to the advantage of the appellant.

It would, in my opinion, be a distortion of justice if this Court were to find error of principle, to find that the appellant had not been sentenced according to law, but nevertheless refrain from intervention because the error has been exposed, not by the appellant, but the Crown.

There is no reason why the statements in Kentwell do not apply to sentencing affected by error of principle, by whomever the error is exposed. In those circumstances, in my opinion, this Court must proceed to set aside the sentence imposed and re-sentence the appellant. That means granting leave to appeal and allowing the appellant’s appeal.

I recognise that proposing a reduction in sentence after upholding a ground of appeal advanced by the Crown might seem a little odd. It is necessary, however, to have close regard to the terms of s 5D of the Criminal Appeal Act. That section permits this Court (where error is shown) to vary the sentence imposed and substitute “such sentence as to [this] Court may seem proper”.

That parallels the re-sentencing discretion conferred by s 6(3) following an appeal under s 5(1)(c). The Court is not limited, in such an appeal, to re-sentencing by the imposition of a lesser sentence (although, it is well established, before imposing a more severe sentence it must give fair warning to the offender: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.

In criminal matters the Crown occupies a special position. It is not a party-party litigant, but a litigant having an obligation of fairness, and an obligation of candour to the Court. Where it identifies error, it is the obligation of the Crown to draw that error to the attention of the Court, or to the offender, even if that opens the potential for a reduction in sentence (or, in the case of error in conviction, if it opens the potential for a re-trial or acquittal). It is the fact that the criminal process has miscarried that is of importance; that miscarriage must be corrected. The integrity of the criminal justice system is sustained by the Crown accepting the obligation to correct error, even where correction appears to be against its immediate interests. The longer term interests of the Crown lie in maintaining that integrity.

In [42] of Kentwell it was made clear that, once error is established, it is not the role of this Court to assess the effect of the error on the outcome. The role of this Court is to recommence the sentencing process.

It was made clear in Kentwell that, where error in sentencing is established, unless the error is such that it does not affect the exercise of the sentencing discretion, the duty of this Court is to exercise the discretion independently, taking into account all relevant matters. Importantly, that discretion is to be exercised on the basis of circumstances as they exist at the time of re-sentencing. (I take that to be what the majority of the High Court meant when they added “including evidence of events that have occurred since the sentencing hearing” at first instance (at [43])). Re-sentencing must be, so far as possible, on standards as they existed in 1972, 1977 and 1978, and 1981.

All of the offences were committed at a time when the statutory provisions concerning sexual misconduct were, by current standards, unsophisticated. They were contained in the Crimes Act. The principal sexual offence was that known as “rape”, the application of which was limited to female victims. Offences against male victims were provided for by s 81 and s 79 (“the abominable crime of buggery”), s 80 (“attempts to commit buggery”) and s 81A (“outrages on decency” which involved acts of indecency on males – that is, homosexual acts falling short of “buggery”).

An understanding of these provisions is relevant and necessary, in order to permit a proper assessment of the objective gravity of each of the appellant’s offences, having regard to the maximum sentence. Section 81 covered a wide range of offences: it encompassed indecent assaults on males of all ages, whether consensual or not (I do not pause to reflect upon what a consensual assault might be – see s 81); it encompassed all manner of sexual assaults (as distinct from consensual conduct covered by s 81A) falling short of “buggery”.

The age of a victim of an indecent assault plainly is, and was, relevant in the assessment of objective gravity. So also are the circumstances in which such an offence is committed. Where, as here, it is committed in breach of trust by a person representing a church, who parents have trusted to deal with their children, and, in the case of DA and PI, to whose care away from home parents have committed their children, the offence must be viewed as grave. Also relevant is the nature of the assault. In the circumstances of the second offence against SC, and the offence against PI, the actual assault was at a relatively low level, aggravated, however, by the ages of the victims, and the position of trust occupied by the appellant. In the case of the first offence against SC, involving direct contact with the penis of the victim, the offence was objectively more serious.

The offences against DA were at a very much higher level of objective gravity, involving as they did taking advantage of the victim while he was asleep, and amounting to what now would be called sexual assault. The second offence involved penetration. Relevant in this consideration is the appellant’s injunction to the victim not to tell his parents. Also relevant is the harm done to the victims, specifically as expressed in the Victim Impact Statements. These offences must be considered as being at the upper end of the scale of objective gravity offences against s 81.

Conventionally, both general and specific deterrence are regarded as important sentencing considerations. While general deterrence remains relevant, having regard to other factors to which I am about to turn, and to the opinion of Mr Watson-Munroe that the appellant poses a low risk of re-offending (an assessment I would accept), the question of specific deterrence is of limited importance.

The principal issue is the age and health of the appellant. At 73, his age alone would not speak against a custodial sentence. His health, however, is another matter. That evidence has been recounted in some detail above; it need not be restated. Eleven months ago his specialist cardiologist (Dr England) assessed his life expectancy at 6-12 months. Dr England considered him a “certain risk of suicide or sudden death” if imprisoned. The appellant suffers from dementia.

This is not the first time this Court has been confronted with a sentencing exercise that needs to balance appropriate recognition of the objective gravity of an offence against the powerful evidence pointing to a merciful outcome: see, for example, R v Sopher (1993) 70 A Crim R 570; R v Achurch [2011] NSWCCA 186; 216 A Crim R 152; R v Dudgeon [2014] NSWCCA 301.

In Sopher, the offender had, over 16 years, systematically and methodically defrauded the social security system. When he came to be sentenced (at almost 71 years of age) he had been diagnosed as suffering from a variety of physical ailments, some of them apparently serious. He was also suffering from “situational stress reaction” and “severe reactive depression”. This Court said:

In Achurch, the offences were of drug supply, in large quantities. The offender was 51 years of age at sentencing. By that time he, too, was suffering from a number of physical conditions, including chronic kidney disease, vascular disease and congestive heart failure. The prognosis was that “prolonged incarceration” would significantly reduce his life expectancy, although to what extent was not quantified. After an extensive review of the authorities, Johnson J (with whom Macfarlan JA and Garling J agreed) concluded that it had not been reasonably open to the sentencing judge to find (as he had) that this was an exceptional case which permitted the offender’s medical condition to become the dominant and controlling factor on sentence at the expense of the objective seriousness of his crimes.

In Dudgeon, the offender committed two offences of aggravated break, enter and steal. In each case the feature of aggravation was the infliction of violence on victims, in one case by tying the victim’s wrists and ankles, and placing a bag over his head. Evidence on appeal (not known at sentencing) was that the offender was suffering from terminal cancer, with a life expectancy “measured in months” from the date of publication of the judgment on appeal. Although the sentence imposed at first instance was described as “very lenient”, it was further “moderated”, although it still incorporated a non-parole period of 11 months. Beazley P, agreeing with the primary judgment of Fullerton J, said:

The various authorities referred to by Johnson J in Achurch, and those to which I have just referred, show a consistency in the statement of applicable principles. It is drawn from R v Smith (1987) 44 SASR 587 at 589, and from the passage in Sopher extracted above. Notwithstanding the recognition that, in appropriate circumstances, a sentence may be mitigated, even to the point of being non-custodial, by reason of ill health, the decisions show that, generally, this Court has taken a hard line in its application. For example, in R v Higgins [2002] NSWCCA 407; 133 A Crim R 385 where the offender had been infected with the HIV virus, and where his medical condition had been taken into account by the sentencing judge, the court declined further to reduce the sentence in order that it be wholly non-custodial.

What must be acknowledged, however, is that in only one of the decisions was the medical condition of the offender comparable, in terms of life expectancy and the anticipated impact on the offender of a custodial sentence, as in the present case. That one case was Dudgeon.

In this case, the Crown did not attempt to challenge the assessment nor the prognosis of Dr England. Nor did it adduce any evidence of what arrangements could be made for the care and treatment of the appellant in custody. This Court cannot make any assumptions about the level of care that could be anticipated in the prison system.

There is no doubt that the appellant’s offences, even by the more lenient or relaxed standards of the 1970s and 1980s, called for a significant custodial sentence. The length of that overall sentence must be measured against the maximum penalty of 5 years (for each offence), and the relation the gravity of the offences bears to a “worst case”. In this respect, the offences against DA, given the age of DA, the appellant’s breach of trust, and of the stealthy way he went about the offences, must be seen as grave. But the sentence must also take into account the extreme medical condition of the appellant.

The Crown did not suggest that the sentencing option of an aggregate sentence under s 53A of the Sentencing Procedure Act was not available in this case. It is a convenient manner in which to approach this difficult case.

The sentence that I am about to propose is very considerably less than the objective circumstances of the offences warrant. This was, and is, a difficult sentencing exercise because of the conflicting sentencing considerations. Had the appellant committed the offences more recently, he would have been charged with different offences, carrying far more severe maximum penalties. The maximum penalty of 5 years applicable to those offences dictates that current sentencing practices are inapplicable. Recognition of the harm done to children by sexual offenders, currently central to the sentencing exercise, does not appear to have featured heavily in the sentencing regime of the 1970s and 1980s. Even so, the harm to these victims should not pass unnoticed. Against that is the medical evidence that calls for a measure of compassion.

I would have considered the alternative option of a sentence to be served by way of home detention under s 76 of the Sentencing Procedure Act. However, by s 76(b), such an order is not available in respect of sexual offences involving children and, in any event, the legislation requires an assessment of the offender’s suitability for such an option (s 78(2)). Time would not permit such an assessment.

I also would have considered the partial suspension of a longer non-parole period. Partial suspension is no longer an available option (Sentencing Procedure Act, s 12).

I propose that the appellant be sentenced to an aggregate term of imprisonment for 2 years commencing on 24 August 2016, with a non-parole period of 3 months which will expire on 23 November 2016. Pursuant to s 50 of the Sentencing Procedure Act, the appellant is entitled to be released at the expiration of the non-parole period.

Pursuant to s 53A(2)(a) I indicate that the sentences I would have imposed for the individual offences are:

Of course, had those sentences been imposed individually, it would have been necessary to determine questions of accumulation and concurrence.

The orders I propose are:

PRICE J: I have had the advantage of reading in draft the judgments of Hoeben CJ at CL and Simpson JA. I have no hesitation in agreeing that the appeal against conviction ought to be dismissed. My concern lies with the orders proposed by Simpson JA that dismiss the Crown appeal and allow the appellant’s appeal against the sentence imposed by the sentencing judge, despite her Honour concluding that none of the appellant’s grounds of appeal can succeed (see [72] – [74] above).

I should immediately mention that I agree that none of the appellant’s grounds of appeal have been made out. Such a conclusion would normally result in the appeal being dismissed. However, in the present case, the Crown’s appeal pursuant to s5D Criminal Appeal Act against the manifest inadequacy of the sentence contained five grounds of appeal. Simpson JA found that Grounds 1, 2 and 4 pleaded by the Crown had been made out and I agree that the errors of law identified by the Crown in these grounds have been established.

I do not agree with her Honour’s view that the Crown has failed to demonstrate that the sentence imposed was outside the range of available sentences in all the circumstances of the case. However, I would exercise the residual discretion on compassionate grounds and dismiss the Crown appeal. As this is a minority view, there is no need to dilate further on these issues.

The focus of my concern is that following the dismissal of the Crown appeal, her Honour re-sentenced the appellant thereby reducing the sentence imposed by the sentencing judge, notwithstanding that the appellant failed in making out any of his grounds of appeal. In my respectful opinion, it defies logic and common sense to use the grounds of appeal successfully argued by the Crown as pointing to the inadequacy of the sentence as a springboard to ultimately reduce the same sentence. It is hardly surprising that the appellant did not adopt any of the Crown’s grounds of appeal.

As Simpson JA observes, the Crown occupies a special position in criminal matters and is obliged to correct error, even where correction appears to be against its immediate interests. However, there is no distortion of justice where the errors identified by the Crown indicate that, absent those errors, a longer sentence may have been imposed by the sentencing judge. Considering the sentencing judge’s remarks on sentence as a whole, it is evident, in my opinion, that the two-stage process adopted by the sentencing judge, in combination with “double counting” and his Honour’s failure to have regard to general deterrence, infected his reasoning and resulted in a lesser sentence.

Kentwell did not did not involve a Crown appeal under s5D Criminal Appeal Act. In my view, there is nothing in Bugmy which suggests that, after the identification of specific error by the Crown but the Crown appeal is dismissed, this Court is then obliged to re-sentence an appellant, where the errors identified favour the Crown’s complaint of manifest inadequacy of sentence.

It would be unfortunate, it seems to me, that what was said by the High Court in Kentwell (see [89] above) should be construed so as to require this Court to re-sentence an appellant where any specific error affecting the sentencing discretion is identified, even though that error benefited the appellant. The task of sentencing should primarily remain with sentencing judges.

In any event, I find myself in disagreement with the sentence proposed by Simpson JA which in my opinion falls well short of an appropriate sentence.

I am grateful for her Honour’s detailed exposition of the facts of the offences and the appellant’s personal circumstances. As her Honour enunciates, the offences against DA must be considered at the upper end of the scale of objective gravity for offences contrary to s81 Crimes Act. The appellant did not plead guilty to these offences and no allowance could be made for remorse. General deterrence remains a relevant consideration.

Without question, the appellant’s parlous physical and mental health are an important consideration. However, I do not agree with Simpson JA’s opinion that “[t]his Court cannot make any assumptions about the level of care that could be anticipated in the prison system” (see [111] above). In Achurch, Johnson J (with whom Macfarlan JA and Garling J agreed) said:

Furthermore, I do not consider that it was incumbent on the Crown to adduce evidence of the arrangements that could be made for the appellant’s care and treatment in custody.

The appellant bears the onus of proving on the balance of probabilities that Justice Health could not provide him with medical care that was reasonable and appropriate. There was no evidence before the sentencing judge or this Court that discharged the evidentiary onus. The psychologist’s opinion that the appellant was unlikely to receive the type of specialist care he was receiving from Dr England in custody amounts to no more than speculation.

Both Hoeben CJ at CL and Simpson JA agree that the appellant should be re-sentenced to an aggregate term of 2 years, with a non-parole period of 3 months. Regrettably, I am unable to understand how such a sentence can be fixed without the appellant’s ill-health being taken into account both in the determination of the length of the aggregate sentence and as a special circumstance justifying such a significant variation in the statutory ratio between the balance of term and the non-parole period. “Double-counting” was the subject of the Crown’s successful complaint in Ground 2.

Bearing in mind the legislative guidepost of the maximum sentence, the objective circumstances of the offences, the subjective features of the appellant and the sentencing patterns at the time of the offences, I consider that an aggregate sentence of 3 years with a non-parole period of 1 year 6 months would have been an appropriate sentence. Such a non-parole period would adequately reflect the criminality involved in the appellant’s offending. I have previously indicated that it is my view that the Crown has established that the aggregate sentence passed by the sentencing judge was manifestly inadequate, but the residual discretion should be exercised.

Accordingly, the orders I propose are: