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Stalio v The Queen [2012] VSCA 120 (12 June 2012)

Last Updated: 11 August 2015

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0299

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CRIMINAL LAW – Appeal against sentence – Indecent assault – Ten charges of indecent assault committed against five girls under the age of 16 between 1974 and 1983 – Sentencing Act 1991 s 5(2)(b) – Meaning of ‘current sentencing practices’ – Whether sentencing judge required to have regard to sentencing practices at the time of the offending – Whether sentencing judge erred in having regard to current community attitudes to offending of the type in issue – Current sentencing practices means sentencing practices at the time of sentence – Equal justice may nonetheless require judge to have regard to sentencing practices at the time of the offending – AMP v The Queen [2010] VSCA 48 – R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368.

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NEAVE JA

OSBORN JA

KING AJA:

1 On 12 April 2011, the applicant (now aged 65) pleaded guilty to ten charges of sexual assault involving five girls under the age of 16 between February 1974 and late 1983.

2 Following a plea on 12 April 2011, the applicant was sentenced by his Honour Judge Mullaly in the County Court on 13 April 2011 as follows:

3 The applicant seeks leave to appeal on the following grounds:

(1) The learned sentencing judge erred in failing to take into account sentencing practices at the time of offending.

(2) The learned sentencing judge erred in giving weight to sentencing practices at the time of sentence.

(3) The base sentence (count 6) was manifestly excessive.

(4) The non-parole period was manifestly excessive.

The background facts

4 As the sentencing judge recorded, each of the applicant’s victims lived close to his home at the time of the offending. He was a trusted neighbour and, in some cases, a trusted work colleague of the father of the victim. His Honour summarised the circumstances of the offending as follows:

10. In dealing with the facts relating to your offences, I will do so by reference to each complainant separately, commencing first with what you did to Ms T. Her family lived near you in Newcomb. When she was aged around nine to 11, she went to the beach near Point Henry with you and others. You gave her a piggy back ride and while doing so, put your finger in her vagina. It was painful to her and made her feel dirty. As it turned out, this method of sexually abusing your victim by offering her the fun of a piggy back ride so as to make it easier for you to move your hand to her genitals, was used by you on other victims.
11. On another occasion Ms T was on your knee watching television at your house. You fondled and then inserted your fingers into her vagina. I pause to note that the conduct I have just briefly described saw the Director of Public Prosecutions indict you on two charges of indecent assault on a girl under 16. At the time, digital penetration was only able to be charged as an indecent assault.
12. I move now to the matters relating to JM. She lived just a little further away from you and the other victims, but you knew her father from working with him at Alcoa. You were a trusted and good friend, so much so that Ms M stayed over at your house when her father and mother were working nightshifts. You exploited this trust. She was about nine or ten when she commenced staying overnight.
13. The first sexual abuse of her was when you gave her a piggy back ride in the hallway of your house. You took the opportunity to insert your finger into her vagina.
14. On another occasion when she stayed overnight, you went to where she was sleeping and woke her with inappropriate touching. You put your fingers in her vagina. You kissed her all over her body and then put your tongue inside her vagina. You were naked. You made the nine or ten year old Ms M suck your penis. She made it plain to you that she did not want to do that but you kept going, only stopping when it was obvious she was struggling to breathe.
15. Each of the penetrations mentioned could only be charged as indecent assaults, and the conduct saw the Director of Public Prosecutions indict you on four charges of indecent act with a girl under the age of 16.
16. The next victim was KC. She lived with her family next door to you. When she was only four or five years old you took her into your house, removed her underpants and touched her vagina. She told her parents who confronted you and called the police. You denied your crime and the investigation went no further. You were undeterred by this and kept offending.
17. As a consequence of what you did to Ms C, you are indicted by the Director of Public Prosecutions on a charge of indecent act with a girl under the age of 16.
18. As will be discussed in more detail shortly, the evidence for this matter came entirely from your confessions.
19. The next matter involved another neighbour, AP. She, like Ms C, was around five or perhaps six years old at the time that you put your hand down her underpants in the driveway of your house. Again, the Director of Public Prosecutions indicted you on a single charge of an indecent assault with a girl under the age of 16.
20. MP was between seven and eight years old when you abused her. She was a near neighbour. She was with a friend of hers and in the hallway of your house. Again, while giving her a piggy back ride you got your hand under her netball skirt and put your finger inside her vagina.
21. On another occasion she stayed the night and you came in while she was asleep. You took her pyjamas and underpants down and inserted your finger into her vagina. She was frightened and shortly after commenced crying and wanting to go home; which occurred. You were indicted on an indecent assault on a child under the age of 16 for these two offences.^[1]

5 In sentencing the applicant, the judge took into account and found that:

(a) The applicant was a trusted neighbour of each of the victims. This betrayal of trust added to the gravity of the offending.[2]

(b) The maximum term of each of the charged offences at the time they were committed was 5 years’ imprisonment. This was an important factor to take into account in the sentencing process.[3]

(c) The offending conduct, if committed in the last 20 years, would have been charged as offences attracting much longer maximum terms. Although sexual abuse of children has always been seen as serious, the more recent longer maximum terms reflect a greater understanding of the lifelong impact on victims of sexual abuse. Whilst care had to be taken to ensure the sentence was guided by the maximum term applicable, nonetheless the community’s current level of abhorrence of such offending, whenever it was committed, was a relevant consideration.[4]

(d) The young age of the victims added to the gravity of the offending.[5]

(e) The offending occurred over a long period of time and was not deterred even by police involvement. This added to the gravity of the offending.[6]

(f) The offending on most counts involved penetration and this level of depravity lead to the conclusion that these crimes were serious examples of their type.[7]

(g) Nothing was, or could be, said to diminish the applicant’s moral culpability. The applicant knew what he was doing was abhorrent and likely to seriously damage his victims, yet he put his own perverse sexual gratification before what was the right thing to do.[8]

(h) The applicant’s crimes have had long-term adverse effects upon his victims.[9]

(i) The applicant was 64 at the time of sentence and had no prior convictions. Since the offending ceased, he has not re-offended. He had limited education and a good work history. These were all relevant factors in mitigation.[10]

(j) The applicant retained the support of his step-daughter who spoke of his appropriate behaviour towards her as she grew up and towards her two daughters.[11]

(k) Mr Newton, a psychologist, diagnosed the applicant as being a paedophile at the time of offending, but did not consider it appropriate to diagnose him as suffering from that condition at present.[12]

(l) The applicant had significant problems with his short-term memory, which was likely to deteriorate further in prison. He would find incarceration more demanding than a prisoner not facing his particular memory problems.[13]

(m) The applicant’s plea of guilty must be given significant weight, as he confessed to some offending which was otherwise unknown to investigators. This type of co-operation required greater leniency.[14]

(n) Deterrence, public denunciation and community protection were very important sentencing considerations given the offending was against children.[15]

(o) Rehabilitation was a relevant consideration but it must yield to other sentencing considerations (such as deterrence and public denunciation) in this case.[16]

(p) The prosecution submission that a disproportionate sentence was not required in this matter should be accepted.[17]

(q) Taking into account the applicant’s age, the opinion of Mr Newton, and the long time since this offending, the applicant was at the low end of the spectrum for risk of re-offending.[18]

(r) The circumstances of this matter plainly warranted imprisonment, but the term must be only what was necessary and no more – particularly given this would be the applicant’s first time in prison.[19]

(s) The applicant had expressed genuine remorse.[20]

(t) The serious offender provisions of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) in respect of orders for cumulation were applicable. Nevertheless his Honour sought to ensure all sentences individually and in combination were proportionate to the overall criminality.[21]

The initial grounds of appeal

6 Grounds 1 and 2 of appeal respectively raise the question of whether the sentencing judge was required to have regard to sentencing practice at the time of the offending and whether, conversely, he was required to disregard sentencing practice at the date of sentence.

7 The applicant submits:

(a) s 5(2)(b) of the Sentencing Act requires regard to be had to ‘current sentencing practices’;

(b) ‘current sentencing practices’ means sentencing practices at the date of the offence;

(c) the sentencing judge erred in failing to have regard to these practices;

(d) the sentencing judge erred in having regard to current community abhorrence of the offending in issue.

8 The Crown submits:

(a) ‘current sentencing practices’ relate to the application of legal principles to sentencing;

(b) ‘current sentencing practices’ are present sentencing practices;

(c) no regard should be had to sentencing practices at the date of the offence;

(d) the sentencing judge was correct to have to regard to current community abhorrence of the offending in issue.

9 In our opinion:

(A) the phrase ‘current sentencing practices’ in s 5(2) of the Sentencing Act relates to present sentencing practices;

(B) the factors stated in s 5(2) are not exclusive of the circumstances which are to be taken into account on sentencing;

(C) the concept of equal justice requires regard to be had to sentencing practices at the date of the offence if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current sentencing practices would impose for the offence;

(D) the applicant cannot demonstrate that the judge failed to have regard to a relevant consideration arising from sentencing practice at the time of the offence;

(E) the judge’s reference to current community abhorrence of the offending in issue demonstrated no error.

10 We will elaborate our reasons for these conclusions in turn, although to some extent the first three conclusions are interrelated.

1. The meaning of ‘current sentencing practices’ in s 5(2)(b) of the Sentencing Act

11 In our opinion, the better view is that the phrase ‘current sentencing practices’ in s 5(2) is intended to refer to sentencing practices at the date of sentence. There are six considerations that support this view:

(a) the ordinary meaning of the phrase;

(b) the specific terms of s 5(2AA)(b) and s 10(5) of the Sentencing Act;

(c) the broad content of the concept of sentencing practice;

(d) the current state of authority;

(e) the fact that such a construction does not result in the adverse consequences which the applicant contends would follow; and

(f) the purposes of the Sentencing Act.

(a) The ordinary meaning of the phrase ‘current sentencing practices’

12 The ordinary meaning of ‘current sentencing practices’ is present sentencing practices. It would ordinarily be understood in the way referred to by Ashley JA in Ashdown v The Queen:[22] ‘the term draws attention to the approach currently adopted by judges sentencing persons for the offence with which the present offender is charged.’[23]

13 Current sentencing practices are the subject of change and ongoing reassessment. In Ashdown, Redlich JA identified circumstances in which appellate courts have expressed a view as to the adequacy of current sentencing practices:[24]

(1) Where there has been an increase in the statutory maximum penalty and [current sentencing practice] has failed to reflect that increase.

(2) Where there is evidence that an offence has become more prevalent.^[25]

(3) Where community expectations have altered.^[26]

(4) Where there has been increased community disquiet over the offence.^[27]

(5) Where there has emerged a better understanding of the consequences for the victim of the offending conduct.^[28]

(6) Where there has been a persistent error in the manner in which a category of offenders has been treated.^[29]

(7) Where the objective seriousness of particular conduct has been wrongly categorised or a particular type of sentencing disposition is not ordinarily appropriate.^[30]

14 The ordinary meaning of ‘current sentencing practices’ encourages the view that what is intended is to require regard to be had to practices at the time of sentence.

(b) The specific terms of s 5(2AA)(b) and s 10(5) of the Sentencing Act

15 Section 5(2AA)(b) of the Sentencing Act requires a Court not to have regard to any sentencing practices arising at any time out of s 10 of the Sentencing Act as in force at a time before its expiry.[31] Until its expiry, s 10 required the Court to take into account the abolition of remissions by the Corrections (Remissions) Act 1991. That Act formed part of the ‘truth in sentencing’ reforms which coupled the abolition of remissions with a reduction in maximum sentences fixed by legislation for offences overall.[32] Section 10 of the Sentencing Act (which has since expired) provided:

(1) When sentencing an offender to a term of imprisonment a court must consider whether the sentence it proposes would result in the offender spending more time in custody, only because of the abolition of remission entitlements ... than he or she would have spent had he or she been sentenced before the commencement of that section for a similar offence in similar circumstances.

(2) If the court considers that the sentence it proposes would have the result referred to in sub-section (1) it must reduce the proposed sentence in accordance with sub-section (3).

(3) In applying this section a court—

(a) must assume that an offender sentenced before the commencement of section 3(1) of the Corrections (Remissions) Act 1991 would have been entitled to maximum remission entitlements; and

(b) must not reduce a sentence by more than is necessary to ensure that the actual time spent in custody by an offender sentenced after that commencement is not greater, only because of the abolition of remissions, that it would have been if the offender had been sentenced before that commencement for a similar offence in similar circumstances.

(4) For the purposes of this section—

(a) ‘remission entitlements’ are entitlements to remission under section 60 of the Corrections Act 1986 or regulation 97 of the Corrections Regulations 1988; and

(b) ‘term of imprisonment’ includes—

(i) a term that is suspended wholly or partly; and

(ii) any non-parole period fixed in respect of the term.

(4A) This section does not apply to the Supreme Court or the County Court when sentencing a serious sexual offender for a sexual offence or a violent offence or a serious violent offender for a serious violent offence.

(5) This section expires on the fifth anniversary of the day on which it comes into operation.

(6) It is intended that the expiry of this section will not of itself have any effect on sentencing practices and that after the expiry date a court will, as required by section 5(2)(b), have regard to sentencing practice current immediately before then as if this section has not expired.^[33]

16 Section 10(6) of the Sentencing Act was inserted in the Sentencing Act contemporaneously with s 5(2)(b) and thus evinced a plain intention that s 5(2)(b) relates to sentencing practices ‘current immediately’ before the date of sentence. It is this approach which is ‘required by section 5(2)(b)’.

17 Not only did s 10 state in plain terms the meaning to be ascribed to s 5(2)(b), but it did so in the context of a statutory scheme which made express provision for the transition from sentencing practices prior to the Sentencing Act to those thereafter. The provision for this scheme also supports the view that ‘current sentencing practices’ was intended to be given its ordinary meaning. Such practices are to be distinguished from the interim practices which were the subject of the scheme provided for in s 10.

(c) The broad content of the concept of sentencing practice

18 Sentencing practice is not simply concerned with fixing periods of imprisonment. Sentencing practice includes current practice with respect to the use of pre-sentence reports, drug and alcohol reports, and victim impact statements. It extends beyond practice with respect to sentences of imprisonment, to youth justice centre orders, community correction orders and suspended sentences.

19 Likewise, the Sentencing Act contemplates that the factors relevant to the sentencing discretion include substantive considerations to which it gives greater weight than the law at the date of the offence. Thus, s 5(2)(e) requires the Court to have regard to the offender’s plea of guilty. As the Crown submits, this was not the law as it was understood to be in Gray v The Queen,[34] namely that a plea of guilty where ‘the accused is quite unrepentant and confessing his guilt simply because the case is overwhelming and in a practical sense, unanswerable’ was of no value. Likewise in 1974, the weight to be given to factors associated with mental illness was arguably more restricted than that now articulated in Tsiaris[35] and Verdins.[36]

20 The applicant is entitled to the potential benefit of all these aspects of sentencing practice. He does not fall to be sentenced on the basis that practices which did not pertain at the date of the offence are to be ignored. He is to be given the benefit of amplified procedural options under the current legislation and the potential benefit of current concepts bearing on his culpability and other relevant factors.

21 Conversely, at the date the Sentencing Act was implemented there were cold case offenders who would have been worse off if they had been sentenced shortly after their offending as a result of the application of further penalties beyond those contemplated by the Sentencing Act. Most obviously, these offenders included offenders in respect of whom a mandatory death penalty would have been imposed prior to 1971 and offenders in respect of whom a flogging would have comprised part of the then current sentencing practices.[37] Regard to ‘current sentencing practices’ does not require the sentencing judge when sentencing today to impose penalties of equivalent harshness, so far as practicable,[38] to those required by sentencing practice at the date of the relevant offending.

22 The Sentencing Act contemplates that the practice to which regard ‘must’ be had is current practice in respect of all such matters, and not the practice pertaining at the date of the offence.

23 The breadth and protean nature of the concept of current sentencing practices strongly favours the view that it was not intended the concept be regarded as frozen in time at the date of the offending in issue.

(d) The relevant authorities do not compel a contrary view

24 In AMP v The Queen,[39] the Court referred to series of decisions of this Court in which different views were expressed as to whether the reference to current sentencing practices in s 5(2)(b) was intended to be a reference to present sentencing practice[40] or to practice at the date of commission of the offence.[41] Ultimately, the Court found it unnecessary to express a concluded view on the question,[42] although it did identify factors which support the view that reference should in an appropriate case be made to past sentencing practice.

25 In Murray v The Queen,[43] AMP was regarded as authority for the proposition that regard must be had to the sentencing range applicable at the time of offending. No relevant range could be established, however, other than by reference to the maximum applicable at the time to which the sentencing judge referred.[44]

26 In Tamamovich v The Queen,[45] AMP was regarded as authority for the proposition that the appellant was to be sentenced in accordance with sentencing practice at the time of the offending. However, the sentencing judge had not been assisted by any evidence as to the sentencing practice at the time, so the point went no further.[46]

27 In The Queen v RL,[47] Nettle JA referred to the decision of the New South Wales Court of Appeal in R v MJR[48] and expressed the view that where sentencing practices have moved adversely to an offender it is proper for the Court to take into account sentencing practice at the date of the offence. For the reasons we will shortly elaborate, we agree with this conclusion, but we do not with respect agree with the further proposition that that is what is intended by ‘current sentencing practices’ in s 5(2)(b).

28 In MJR, the New South Wales Court of Appeal made clear that but for previous authority each of its members[49] would have adopted the position taken by Spigelman CJ in R v PLV.[50]

29 In PLV, Spigelman CJ said:

[93] The applicant was sentenced to a period of two years with a very short non-parole period of three months. It was submitted that by reason of delay he was exposed to punishment as an adult and to a sentencing regime which it was submitted was ‘harsher’ than that which existed in New South Wales at the time the offences were committed. The Court was referred to no authority in support of the proposition that sentences should be in accordance with practices at the time an offence was committed, rather than in accordance with practices at the time of conviction. I see no reason why this Court should establish such a principle for the first time.

[94] I do not understand how a Court would go about determining what it would have done twenty years before. The balance between the various objects of sentencing — deterrence, retribution, rehabilitation — does vary over time. The proposition for which the appellant contends is both artificial and inappropriate. Sentencing should be based on practices extant at the time of conviction.^[51]

30 The majority in MJR regarded themselves as constrained by the decision in R v Shore[52] to approach sentences on the basis articulated in that case by Badgery-Parker J (with whom Mahoney JA and Hunt CJ at CL agreed) where his Honour said:

In my opinion I should, so far as I am able to do so, seek to impose upon the offender a sentence appropriate not only to the then applicable statutory maxima but also to then appropriate sentencing patterns. That is by no means easy, but in my view I must endeavour to do so.

31 The Court in MJR further made clear that the application of former sentencing practice many years after an offence may involve formidable evidentiary difficulties,[53] a matter to which we shall return.

32 It is to be doubted that MJR should be regarded as determinative of the meaning of ‘current sentencing practices’ in s 5(2)(b) in circumstances where the judgments expressly indicate the Court’s view that, in terms of underlying principle, the approach in PLV was to be preferred.

33 Moreover, ultimately the question for this Court must be the construction of the Victorian statute. The arguments put forward by senior counsel for the Crown with respect to s 10 of the Sentencing Act were not advanced to the Court in AMP and do not appear to have been articulated when the issue was raised in other cases. For the reasons we have expressed, we find them convincing. They are plainly a sufficient basis on which to distinguish the New South Wales authorities.

(e) The consequences of this construction

34 Contrary to the submissions made on behalf of the applicant, if ‘current sentencing practices’ are understood to relate to practices immediately current prior to sentence, this will not necessarily render irrelevant the question of what sentencing practices were at the date of the offence. More particularly, for reasons we set out at [53] and [54] below, such practices may raise a question of equal justice.

35 Sentencing practices at the time of the offence may raise questions of equal justice in the same way as notions of parity and the rule in R v Liang & Li,[54] although neither of these matters is enumerated under s 5(2). Our construction of s 5(2)(b) does not mean that it necessarily follows that sentencing practices at the date of offending are irrelevant to the sentencing discretion.

(f) The purpose of the Sentencing Act

36 The first purpose of the Sentencing Act is ‘to promote consistency of approach in the sentencing of offenders’. Section 5(2)(b) gives effect to that purpose. The requirement that sentencing courts have regard to current sentencing practice is intended to give rise to ongoing consistency in sentencing. In the present case, current sentencing practice embraces immediately current sentencing practice with respect to offences that occurred in the early 1970s and early 1980s.

37 Because current sentencing practices embrace matters which extend beyond the identification of a range of sentences of imprisonment, it is most unlikely Parliament’s intention was that this purpose was to be restricted in its implementation pursuant to s 5(2)(b) by reference only to past sentencing practice in this narrow sense.

38 Likewise, because current sentencing practices reflect a changing conceptual framework, it is most unlikely Parliament intended an inconsistent series of frameworks to be adopted depending upon the date of the offences. As Spigelman CJ said in PLV, such an approach would be impractical, artificial and inappropriate.

39 For the above reasons, we take the view that the reference to ‘current sentencing practices’ in s 5(2)(b) relates to practices current at the date of sentencing.

2. Are the factors stipulated s 5(2) exclusive?

40 A threshold question governing the consequences of our conclusion as to the meaning of ‘current sentencing practices’ in s 5(2)(b) is whether the factors set out under s 5(2) are exclusive. In our view, the Court may have regard to any matter which is relevant to the achievement of the purposes set out in s 5(1):

(1) The only purposes for which sentences may be imposed are—

(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or

(b) to deter the offender or other persons from committing offences of the same or a similar character; or

(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or

(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or

(e) to protect the community from the offender; or

(f) a combination of two or more of those purposes.^[55]

41 Section 5(2) goes on to specify a series of matters to which the Court ‘must have regard’.

(2) In sentencing an offender a court must have regard to—

(a) the maximum penalty prescribed for the offence; and

(b) current sentencing practices; and

(c) the nature and gravity of the offence; and

(d) the offender's culpability and degree of responsibility for the offence; and

(daaa) whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated; and

(daa) the impact of the offence on any victim of the offence; and

(da) the personal circumstances of any victim of the offence; and

(db) any injury, loss or damage resulting directly from the offence; and

(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and

(f) the offender's previous character; and

(g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.^[56]

42 These factors are not, however, exclusive. The phrase ‘must have regard to’ does not imply that there may not be other matters which are relevant.[57] The phrase takes its meaning from the context in which it appears. In this regard, the last words in the list of factors identified under s 5(2) are ‘any other relevant circumstances’. This phrase makes clear that the list is not to be regarded as exclusive. There are significant considerations such as parity, which are not referred to but raise plainly potentially relevant circumstances.

43 It follows that the specific circumstances in s 5(2) are not to be regarded as exclusively defining the factual matters to which regard can be had in sentencing.

44 Nor are the matters listed in s 5(2) to be characterised as ‘fundamentals’.

No single matter specified in s 5 is ‘fundamental’ to the fixing of the sentence. The imperative that the sentencing court ‘have regard to’ the enumerated matters requires the judge to consider each of the matters and determine whether any or any particular weight should be given to them. The judge is required only to have regard to the factors so far as they are known to him or her. The provision does not require that the matter in question have an actual influence on the ultimate result. Each matter may inform the ‘instinctive synthesis’ but none is determinative; the emphasis each receives will vary from case to case.^[58]

45 If the factors listed under s 5(2) are not to be regarded as exclusive, then sentencing practices at the date of the applicant’s offending may be a factor to which the Court should have regard when sentencing, even if such practices are not a factor directly identified by s 5(2).

C The concept of equal justice

46 The sentencing judge said:

22. The maximum term of imprisonment for each of the crimes as at the time you committed them was five years. It is important to remember that the maximum term of an offence is a factor that I am bound to take into account in the sentencing process.
23. These offences, if committed in the last 20 years or thereabouts, rather than back in the 1970s or early 80s, would have been charged as offences attracting much longer maximum terms. Sexual abuse of children has always been seen as serious, the more modern longer maximum terms reflect a greater understanding of the lifelong impact on victims, amongst other things, of sexual abuse. I must be careful to ensure that my sentence is guided or illuminated by the maximum term applicable. I cannot ignore the community's current level of abhorrence of such offending whenever it was committed.^[59]

47 The applicant fell to be sentenced in accordance with the Sentencing Act, but in respect of offences for which, at the date of offending, the maximum sentence of imprisonment applicable was materially less than would now be the case.

48 Section 114 of the Sentencing Act provides:

114 Effect of alterations in penalties

(1) If an Act (including this Act) or subordinate instrument increases the penalty or the maximum or minimum penalty for an offence, the increase applies only to offences committed after the commencement of the provision effecting the increase.

(2) If an Act (including this Act) or subordinate instrument reduces the penalty or the maximum or minimum penalty for an offence, the reduction extends to offences committed before the commencement of the provision effecting the reduction for which no penalty had been imposed at that commencement.^[60]

49 This section reflects the common law presumption that legislation does not operate retrospectively. It also reflects the policy embodied in s 27(2) of the Charter of Human Rights and Responsibilities Act 2006:

A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.

50 It is plain that his Honour recognised that the maximum applicable were those in place at the time of offending. He did so not simply as an outer limit but as a guide to the sentence properly applicable. In this regard, see the observations of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen[61] and of Callaway JA in DPP v Aydin & Kirsch.[62]

51 It is submitted, nevertheless, that his Honour failed to take into account sentencing practices at the time the offence was committed.

52 We accept that, in principle, it may be relevant to consider sentencing practice at the date of an offence when sentencing for that offence occurs many years later. This is not because ‘current sentencing practices’ as referred to in s 5(2)(b) of the Sentencing Act relates to practices at the date of the offence, but because this factor is relevant to attainment of the purposes set out in s 5(1), and in particular the imposition of punishment to the extent which is just in all the circumstances.

53 The principle of equal justice requires that regard be had to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time. In Lowe, [63] Mason J stated:

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this

reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.^[64]

54 It would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time.

4. Has the applicant demonstrated failure to have regard to relevant sentencing practice?

55 Nevertheless, we are not satisfied that this principle has any application in the present case. There is no evidence of the nature of different sentencing practice at the time of the offences other than the lower maximum which was applicable. His Honour had specific regard to this maximum. Insofar as it is postulated that sentences for the offences were generally lower at the date of offending,[65] the sentencing judge implicitly recognised this by accepting that he must be guided by the lower maximum applicable at the date of offending. It is not possible to conclude that sentencing practice involved any greater differential than flowed from this fundamental difference.

56 It is not possible to establish a different ‘yardstick’ to which reference is to be had in the sense contemplated by the High Court in Hili v The Queen:[66]

54. In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: ‘Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.’ But the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’. Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’[emphasis of French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ]. When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned’.
55. As the plurality said in Wong: ‘[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.’^[67]

57 The principal case upon which counsel for the applicant relies was one in which the applicable maximum had not changed but sentencing practice had.[68] We accept that, in such cases, it may be possible to postulate a meaningful differential attributable to different sentencing practice, but this is not such a case.

58 In the course of the plea, the sentencing judge specifically raised with counsel for the applicant the question of whether he contended that an allowance should be made for sentencing practice at the time of offending, as distinct from the consequences of the lower maximum then applicable.

59 Counsel submitted that it would be a very difficult if not impossible exercise to make such an allowance.[69] He disavowed what was referred to as the New South Wales approach and made it clear that he relied squarely and solely upon the lower maximum which applied at the time of the offences.

60 It is hardly surprising that his Honour expressed himself in the way which he did in his reasons for sentence, having regard to these submissions.

61 On appeal, it was conceded on behalf of the applicant that judgments of the Court of Criminal Appeal between 1971 and 1993 demonstrate that sexual offences against children were not regarded in principle as less serious than today. On the other hand, it was submitted that the length of sentences thought necessary to match that seriousness was ‘considerably shorter’ than present sentencing practice would regard as appropriate.

62 This submission was founded principally upon an analysis of sentences for the crime of incest. We are prepared to accept that at the time of the applicant’s offending sentences for sexual offences were generally somewhat lower than at present, but this is not sufficient to demonstrate error on the part of his Honour. In MJR, both Spigelman CJ and Sully J[70] referred with approval to the statement of Whealy J in R v Moon:

[23] Although the principle stated in Shore^[71] is clear, its application in a particular appeal is often a difficult matter. First, there is a need to have a clear picture as to the range of penalties imposed at the earlier point of time. In Shore's case for example, there was an extensive analysis of over twenty cases of importation of drugs (see Schedule, Shore at 49). Secondly, the perceived difference between the range of sentences disclosed at the earlier point of time and the sentence imposed by the sentencing judge may reveal a discrepancy. Nevertheless it may be one of not so high a kind that the appellate court should interfere (Shore at 43).^[72]

63 Both judges also referred to the observations of Smart AJ in PLV:

The judge correctly had regard to the position which existed in 1974 when the offence was committed and the applicant's present position. There are practical difficulties in trying to recapture the situation which existed 25 years ago. Reference to the odd decided case may not be helpful in trying to obtain an overall picture. Whilst it is not perhaps the best source, there are judges who have a reasonably good recollection of the practice in the courts and the sentences imposed in the period 1965 to 1980. There are judges who do not have such knowledge. If there is no substantial evidence as to that practice and the sentencing judge is not aware of them then they obviously cannot be taken into account.^[73]

64 In the present case, there is no substantial evidence as to sentencing practice for the offences in question at the time of the offending.

65 In MJR, Sully J further stated:

It is the case, as was frankly conceded by learned counsel for the applicant, that there does not exist a body of statistical material that is relevant to the applicant's case and that is similar in kind and in scope to the body of material, the existence of which was, as I respectfully think, crucial to the reasoning upon which the decision in R v Shore rests. In the absence of some such acceptable statistical material, this Court is constrained, in my opinion, to take the non-statistical approach which is described as follows by Howie J, (Fitzgerald JA concurring), in his Honour's judgment in R v Moon.^[74] Howie J says, case citations omitted, and I respectfully agree:

The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: ..., and be proportional to the criminality involved in the offence committed: ... . Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time.^[75]

66 In our view, the present is a case of the type last referred to.[76] It was a case in which the historically lower maximum was identifiable but there was no satisfactory evidence of a difference in sentencing practice, other than that consequent upon that lower maximum. This was the view taken by counsel for the applicant on his plea and, in turn, the view reflected in the reasons for sentence of his Honour the sentencing judge.

67 We would add that there is nothing in the base sentence imposed by his Honour in respect of count 6, which suggests that he failed to have regard to the relevant maximum.

68 In the range of indecent assaults potentially covered by the offence, the present case was one of the most serious kind. The applicant made a ten year old girl suck his penis and to continue despite her protests, until it was obvious she was struggling to breathe. This was offending which does not suggest an apparent lack of proportionality between the sentence imposed and the relevant maximum despite all the other matters raised on the applicant’s behalf.

E The relevance of community attitudes

69 Further, and in any event, the current level of community abhorrence for the conduct in issue may bear on series of specific circumstances made relevant by s 5(2) other than ‘current sentencing practices’. If current community attitudes are relevant to any of the factors specified under s 5(2), then there was no error in referring to them, even if ‘current sentencing practice’ were to be understood as relating to practice at the time of the relevant offending. The sentencing judge was required to have regard to all the factors specified under s 5(2) as relevant to the case before him.

70 The consideration of the nature and gravity of the offence, the offender’s culpability and degree of responsibility for the offence, the assessment of aggravating factors, the impact of the offence on the victim, the personal circumstances of the victim, and any injury resulting directly from the offence are all informed by the community’s current understanding of and abhorrence for such offending.[77]

71 The sentencing judge was bound to exercise his discretion in accordance with the Sentencing Act. His Honour was required, ultimately, to balance each of the factors relevant to the achievement of the purposes set out in s 5(1). Self-evidently, some of those factors counted in favour of a lower sentence and others in favour of a higher sentence. Thus, the factor of the delay between the offending and the time of sentence was a relevant circumstance which bore both on the impact of the offence on the victims and on the age of the prisoner falling to be sentenced. In the first instance, the fact of delay in achieving some form of retribution and closure from the victims’ point of view must count adversely to the offender.[78] On the other hand, the offender’s age and his demonstrated good character over an extended period of time in other respects might be regarded as matters tending to favour a lower penalty.

72 The abhorrence of the community for offending of the type in issue was a factor which the judge was entitled to consider when fixing a penalty which was just in all of the circumstances and which properly reflected both the need for specific and general deterrence and the need to manifest an appropriate denunciation of the conduct in issue.

73 A serious aspect of offending of the type in issue is that it is difficult to detect and not infrequently comes before the Courts only after the victims have reached adulthood. The abuse of the power relationship reflected in this pattern and its long lasting consequences contribute to and are reflected in the community’s abhorrence of the offending.

74 It was intrinsically necessary for the sentencing judge to consider the lasting consequences of the offending as they had progressed to the date of sentence, if a punishment which was just in all the circumstances was to be imposed and a sentence properly reflecting the need for appropriate deterrence was to be arrived at.

75 For different, but equally obvious, reasons, matters relating to rehabilitation could only properly be assessed as at the date of sentence and not at the date of the offending. The assessment of each of these factors must reflect the Court’s understanding of their significance as at the date of sentence.

76 It follows that, even if ‘current sentencing practices’ were to be understood as relating to sentencing practices at the date of the offence, we do not regard the reference by the sentencing judge to the community’s ‘current’ level of abhorrence of such offending as demonstrating error on his part.

77 This is fundamentally because it fell to the judge to impose a sentence which was, by current community standards, just in all the circumstances, sufficient to reflect considerations of general and specific deterrence and which embodied an appropriate denunciation of the offender’s conduct. Current community attitudes were also relevant to the evaluation of the specific factors we have identified under s 5(2).

Conclusion with respect to grounds 1 and 2

78 In summary, grounds 1 and 2 of the appeal fail because:

(a) s 5(2)(b) of the Sentencing Act requires regard to be had to present sentencing practice; nevertheless

(b) regard can be had to sentencing practice at the date of offending for the purpose of ascertaining just punishment in accordance with the principle of equal justice; but

(c) in the present case the judge did not err in failing to give that principle further application beyond that implicit in the lower maximum applicable at the date of offending; and

(d) there was no error by the judge in making reference to current community attitudes as a factor relevant to the sentence.

Ground 3 Was the base sentence (count 6) manifestly excessive?

79 It is submitted on behalf of the applicant that the sentence of three years on count 6 is manifestly excessive in the context of the following specific mitigating factors:

(a) The applicant volunteered to police that he had assaulted JM. Police had no knowledge that the applicant had committed any offences against JM. In the absence of his admissions, the applicant would not have been convicted on count 6.

(b) Whilst JM’s subsequent allegations went beyond the applicant’s original confession, the applicant entered a guilty plea to this charge at the earliest possible opportunity.

80 It is submitted that a sentence that is 60 per cent of the maximum is outside of the range in light of these specific mitigating factors and the other matters in the applicant’s favour identified by the sentencing judge.

81 We do not accept that it is reasonably arguable the sentence was manifestly excessive in respect of count 6.

• The victim was only 10 at most.

• The applicant abused a position of trust.

• Count 6 comprised conduct which was the culmination of a series of serious assaults.

• The offending in issue was very grave (see [14] of the judge’s summary set out above).

• The applicant persisted in the offending, despite his victim’s protests, until she had difficulty breathing.

• The consequences for his victim have been significant and long lasting. The victim impact statement eloquently expresses the lasting effects of the applicant’s conduct upon her.

82 In our view, the offending was such as to mean the sentence imposed was well within the range.

Ground 4: Was the non-parole period manifestly excessive?

83 It is submitted that the non-parole period of 44 months is excessive because it is just under 69 per cent of the total effective sentence.

84 In our view, the non-parole period was within the range. Despite the sentencing judge’s conclusion that the applicant was at low risk of re-offending, and the history of his co-operation with police and pleas of guilty together with his remorse, the non-parole period fixed was not inappropriately disproportionate to the total effective sentence. Nor was it manifestly excessive in itself.

Conclusion

85 For the above reasons, the grounds of appeal save those relating to the meaning of ‘current sentencing practices’ are not reasonably arguable. Insofar as the grounds relating to the meaning of ‘current sentencing practices’ are concerned, we accept that they were arguable. In the circumstances, we think the proper course is to grant leave to appeal, but dismiss the appeal.

86 Accordingly, leave to appeal will be granted but the appeal will be dismissed.

^[1] Reasons for judgment, 13 April 2011, [10]-[21].

^[2] Ibid, [7], [25].

^[3] Ibid, [22].

^[4] Ibid, [23].

^[5] Ibid, [26].

^[6] Ibid, [27].

^[7] Ibid, [28]-[30].

^[8] Ibid, [31].

^[9] Ibid, [32]-[34].

^[10] Ibid, [35].

^[11] Ibid, [36].

^[12] Ibid, [37].

^[13] Ibid, [39].

^[14] Ibid, [41], [50]-[51].

^[15] Ibid, [44]-[45], [47].

^[16] Ibid, [46].

^[17] Ibid, [48].

^[18] Ibid, [38], [49].

^[19] Ibid, [52].

^[20] Ibid, [50]-[51].

^[21] Ibid, [53].

^[22] [2011] VSC 408 (‘Ashdown’).

^[23] Ibid, [151] (31).

^[24] Ibid, [180].

^[25] Giles v Barnes (1969) SASR 174, 181; Henderson (1991) 58 A Crim R 369, 373; R v Downie and Dandy [1998] 2 VR 517; Brewster (1998) 1 Cr App 220, 224; R v GMT [2006] VSCA 13; R v Dowie [1989] TASSC 44; (1989) 42 A Crim R 234, 252–3; Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421, 439; R v Henry [1999] NSWCCA 111, [86]–[88]. See, more generally, WCB v The Queen [2010] VSCA 230.

^[26] R v MJR [2002] NSWCCA 129, [57]; R v Barber (1999) NSWCCA 111, [87]; Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357, 389 [82] (McHugh J).

^[27] Vaitos v The Queen (1981) 4 A Crim R 238; DPP v Avci [2008] VSCA 256; (2008) 21 VR 310; DPP v Maynard [2009] VSCA 129; R v Wayland (Unreported, Supreme Court of Victoria Court of Criminal Appeal, 17 September 1992, Crockett J) [4]–[5]); R v Wakime [1997] 1 VR 242, 244.

^[28] R v D [1997] SASC 6350; [1997] 69 SASR 413; R v Henry & Ors (1999) NSWCCA 111, [94]; R v MJR [2002] NSWCCA 129, [57]; Andrew v R [1998] TASSC 27.

^[29] For example good character does not have the same mitigating effect in the case of white collar crimes or culpable driving.

^[30] Winch v The Queen [2010] VSCA 141; Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150.

^[31] Section 5(2AA)(b) provides:

Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to –

...

(b) any sentencing practices arising at any time out of section 10 of this Act as in force at any time before its expiry.

^[32] A specific exception was made with respect to sexual offences, in respect of which the maximum penalty was not reduced.

^[33] Emphasis added.

^[34] [1977] VicRp 27; [1977] VR 225 and see R v Morton [1986] VicRp 82; [1986] VR 863, 867 as to the effect of s 4 of the Penalties and Sentences Act 1985.

^[35] [1996] VicRp 26; (1996) 1 VR 398.

^[36] [2007] VSCA 102; (2007) 16 VR 269.

^[37] Cf O’Meally v The Queen [1958] HCA 7; (1958) 98 CLR 13.

^[38] Having regard to s 114(2) of the Sentencing Act discussed further below.

^[39] [2010] VSCA 48 (‘AMP’).

^[40] DPP (Vic) v BGJ [2007] VSCA 64; (2000) 171 A Crim R 74, 85; R v Meldrum (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Gillard and Anderson JJ, 2 September 1977); R v Stephenson (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips JA, Southwell AJA, Hampel J, 5 September 1995); R v Flavall [2006] VSCA 32, [11].

^[41] R v RL [2009] VSCA 95. The Court also referred to the following interstate authorities which supported the proposition: R v MJR (2002) 54 NSWR 368; R v Kench [2005] SASC 85; (2005) 152 A Crim R 294; Green v R [2006] NTCCA 22; (2006) 19 NTLR 1.

^[42] AMP, [32].

^[43] [2011] VSCA 232.

^[44] [5]-[6] (Harper JA with whom Hansen JA agreed).

^[45] [2011] VSCA 330.

^[46] Ibid, [38] (Neave, Hansen JJA, Beach AJA).

^[47] [2009] VSCA 95.

^[48] [2002] NSWCCA 129; (2002) 54 NSWLR 368 (‘MJR’).

^[49] Ibid, Spigelman CJ, 370; Mason P dissenting, 377; Sully J, 103; Grove J, 379; and Newman AJ, 386 agreeing with Spigelman CJ and Sully J.

^[50] (2001) 51 NSWLR 736 (‘PLV’).

^[51] PLV, 744 [93]-[94]

^[52] (1992) 66 A Crim R 37.

^[53] MJR (Spiegelman CJ, 370, 371; Mason P, 378; Sully J, 384).

^[54] (1985) 82 A Crim R 39.

^[55] Sentencing Act, s 5.

^[56] Ibid.

^[57] Re BHP Petroleum v Minister for Resources (1993) 30 ALD 173, 180; Re Hunt; Ex parte Sean Investments [1979] HCA 32; (1979) 53 ALJR 552, 554; Reid v Vocational Registration Appeal Committee (1997) 73 FCR 43, 53-54; Ashdown v R  [2011] VSCA 408 , [151].

^[58] R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391, 404-405 [45] (Warren CJ, Maxwell P and Redlich JA) (citations omitted).

^[59] Ibid, [22]-[23].

^[60] Sentencing Act, s 114.

^[61] [2005] HCA 25; (2005) 228 CLR 357, 372 [31]-[32].

^[62] [2005] VSCA 86, [8]-[12].

^[63] (1984) 154 CLR 601.

^[64] Ibid, 610-11; Radenkovic v The Queen [1946] HCA 17; (1991) 71 CLR 623, 632 (Mason CJ and McHugh J).

^[65] Cf AMP and The Queen, [34].

^[66] [2010] HCA 45; (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ).

^[67] Ibid, [54]-[55] (citations omitted).

^[68] Ibid, [29].

^[69] T29.

^[70] MJR, [8] and [108].

^[71] R v Shore (1992) 66A Crim R 37.

^[72] R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497, 502 [23], cited in MJR, [8].

^[73] PLV, 746 [107], cited in MJR, [9].

^[74] [2000] NSWCCA 534; (2000) 117 A Crim R 497, 511 [70]–[71].

^[75] MJR, 384 [107].

^[76] As was Murray v The Queen [2011] VSCA 232.

^[77] See s 5(2)(c), (d), (daa), (da) and (db).

^[78] Delay will prevent social rehabilitation in the sense explained by Vincent JA in DPP v Toomey [2006] VSCA 90.