Re R v Jeffrey John Hillsley [1992] FCA 39; 105 ALR 560; (1992) 34 FCR 148 (1992) 59 A Crim R 187 (11 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: THE QUEEN
And: JEFFREY JOHN HILLSLEY
No. ACT G53 of 1990
FED No. 38
Criminal Law - Sentencing
[1992] FCA 39; 105 ALR 560
(1992) 34 FCR 148
(1992) 59 A Crim R 187

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1) Gallop(2) and Spender(3) JJ.

CATCHWORDS

Criminal Law - Crown appeal against inadequacy of sentence - role of appellate court - relevant principles

Sentencing - power to order additional sentence to be served partially concurrently

Sentencing - fixing non-parole period - relevant considerations

Crimes Act 1900 (NSW),ss.92M, 92E(1), 92K(1), 443, 441A, 447

Crimes (Amendment) (No. 4) Act 1986, s.8, s.9

Crimes Act 1914, s.19

Federal Court of Australia Act 1976, ss.24(1)(b), 28(5)

Social Welfare Act 1970, s.123

Rumpf (1987) 29 A Crim R 64

Magee (1980) WAR 117

R. v Tait and Bartley (1979) 24 ALR 473

R. v Osenkowski (1982) 30 SASR 212

Geddes (1936) 36 SR(NSW) 554

Channon (1978) 33 FLR 433

Leach (1979) 1 A Crim R 320

R. v Rajacic (1973) VR 636

R. v De Zylva (1988) 33 A Crim R 44

R. v Peter Vaitos (1981) 4 A Crim R 239

Veen v The Queen (No. 2) [1988] HCA 14; (1987-1988) 164 CLR 465

Power v The Queen [1974] HCA 26; (1973) 131 CLR 623

Bugmy v The Queen [1990] HCA 18; (1990) 64 ALJR 309

Peter Kay Morgan and Douglas Kay Morgan (1980) 7 A Crim R 146

HEARING

CANBERRA
11:2:1992

Counsel for the appellant : Mr R. Webster

Solicitors for the applicant : ACT Director of Public Prosecutions

Counsel for the respondent : Mr T. O'Donnell

Solicitors for the respondent : ACT Legal Aid Office

ORDER

The appeal be allowed and the sentences be varied as follows:-

(2) the head sentences of four years' imprisonment for abduction,
seven years' imprisonment for sexual intercourse with a child,
and seven years' imprisonment for sexual intercourse with the
same child on a second occasion to date from 27 February 1990,
be confirmed and those sentences be served concurrently;
(3) the sentence of five years' imprisonment for indecent assault
involving attempted sexual intercourse on the other girl be
confirmed and that it be served cumulatively upon the
sentences referred to above; and
(4) a non-parole period of six years to date from 27 February 1990
be fixed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

I have had the opportunity of reading the reasons for judgment prepared by Gallop J. I agree that the appeal should be allowed and I agree with the orders Gallop J proposes, for the reasons he gives.

2. I add some brief observations of my own about the absence of any power to impose a sentence that is partly concurrent and partly cumulative and about the non-parole period proposed by Gallop J.

3. The advantages of a power to make a sentence partly concurrent and partly cumulative have been commented upon in the past. In Rumpf (1987) 29 A Crim R 64 at 75, McGarvie J, in whose judgment the other members of the Victorian Court of Criminal Appeal agreed, spoke of the need for such a power to be conferred. His Honour spoke in the context of the Commonwealth legislation as it then stood. He said:

"The existence of the power enables the effective sentence
to be tailored to meet the criminality of the particular
case and avoids impeding the difficult task of sentencing by
elements of inflexibility, distortion and artificiality."

See also: Magee (1980) WAR 117 at 119 per Wickham J, with whom Burt C.J. and Wallace J agreed.

4. The principle of totality is more easily accommodated if there is a power to make a sentence partly concurrent and partly cumulative.

5. The argument that s.441A of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory enables a partly concurrent sentence to be imposed has the attraction that, if the argument is correct, the section would give a judge an added degree of flexibility in sentencing. Section 441A provides that a sentence shall take effect from the date on which it is passed "unless the court otherwise orders". Plainly, the section must permit a court, in appropriate circumstances, to order that a sentence shall take effect before and after the date upon which it is passed.

6. Section 441A was however introduced at a time when s.447 was in force and s.447 clearly allowed for the imposition of a partially concurrent sentence. As there was already an obvious source of power to impose a partially concurrent sentence, s.441A could hardly have been introduced for the purpose of conferring such a power.

7. The subsequent legislative history confirms that view. When s.443 was enacted in its present form by s.8 of the Crimes (Amendment) (No.4) Act 1986, s.447 was repealed by s.9 of the same Act. The intention appears to have been to replace the existing provisions relating to cumulative sentences with the new s.443. The Explanatory Statement of the Crimes (Amendment) Ordinance (No.4) 1986 states that s.8 repeals the provisions of the Crimes Act 1900 relating to cumulative sentences (ss.443, 444) and replaces them with a new section, s.443. The new section was said to be in similar terms to s.19 of the Crimes Act 1914. In dealing with s.9, the Explanatory Statement says:

"Section 9 repeals sections 447 and 554 of the Crimes Act
1900. Section 447 is replaced by the new Section 443 to be
inserted by section 8....." (my emphasis).

I therefore agree with Gallop J that the argument that s.441A confers a power to impose, in effect, a sentence that is partially concurrent and partially cumulative should not be accepted. The new s.443 was intended to cover the field and the new section makes no provision such as was made by the repealed s.447. There is no power to impose a sentence that is partly concurrent and partly cumulative.

8. The learned sentencing judge fixed a non-parole period of four years to give the respondent what his Honour described as some hope and encouragement towards the objective of rehabilitation. The severity of the crimes was such that, notwithstanding the very important aim of rehabilitation, an aim that serves the interests of the community as well as those of the respondent, I cannot agree that four years was an appropriate non-parole period. Nevertheless, the period of six years, proposed by Gallop J, and with which I agree, ought not in the circumstances to deny hope and encouragement to rehabilitation.

This is a Crown appeal against sentence imposed in the Supreme Court of the Australian Capital Territory upon the respondent on 6 September 1990. The respondent had been committed for sentence by the Magistrates Court, Canberra, on one count of abduction and two counts of sexual intercourse in relation to a girl aged five years. He had also pleaded guilty to committing an act of indecency upon a girl aged nine years. He attempted to have sexual intercourse with that girl.

2. In the Supreme Court he adhered to his pleas of guilty and did not dispute any of the facts given in evidence by the Crown in the form of a written statement of facts. In fact, in his evidence before the sentencing judge, he expressly acknowledged the facts as stated by the Crown to be true and correct.

3. The sentencing judge imposed the following sentences:

(1) Abduction: four years' imprisonment.
(2) Sexual intercourse with a child: seven years' imprisonment
concurrent with the first sentence imposed.
(3) Sexual intercourse with the same child on a second occasion:
seven years' imprisonment cumulative as to 12 months thereof on
the two previous counts, otherwise concurrent therewith.
(4) Indecent assault involving attempted sexual intercourse: five
years' imprisonment, cumulative as to 12 months on the previous
sentences but otherwise concurrent therewith.

4. Hence the total period of the head sentences imposed was nine years. His Honour fixed a non-parole period of four years and ordered that the sentences commence from 27 February 1990, from which date the respondent had been in custody.

5. The maximum panealty for an offence of abduction of another person with the intent that the other person should engage in sexual intercourse with the offender is 10 years' imprisonment (Crimes Act 1900 (NSW), s.92M). The maximum penalty for engaging in sexual intercourse with a person under the age of 10 years is 17 years' imprisonment (s.92E(1)). The maximum penalty for committing an act of indecency upon a person under the age of 10years is 12 years' imprisonment (s.92K(1)).

6. The grounds of appeal are that his Honour:

(a) failed to incorporate adequate deterrent and
retributive factors in the sentence imposed;
(b) ordered only part of the sentence imposed in
respect of the offence set out in the
Magistrates Court Bench Sheet numbered CC
90/1624 to be served cumulatively with the
previous sentences imposed;
(c) ordered only part of the sentence imposed in
respect of the offence set out in the
Magistrates Court Bench Sheet numbered
CC90/1862 to be served cumulatively with the
previous sentences imposed;
(d) ordered the sentences to commence from
27 February 1990;
(e) imposed sentences which were individually and
in their totality manifestly inadequate.

7. Before turning to the facts which gave rise to the commission of the subject offences, it is necessary to refer to the respondent's previous convictions and sentence on 12 October 1984 to eight years' imprisonment with a four year non-parole period for very similar offences to the subject offence of abduction.

8. On 2 February 1982 the respondent was convicted of an offence of indecent assault upon a female in the Court of Petty Sessions, Wagga Wagga, when sentence was deferred on his entering into a recognisance self in the sum of $500 to be of good behaviour for a period of three years. He also has two other convictions for indecent language and stealing a motor vehicle which are not relevant to the present appeal.

9. On 12 October 1984 the respondent was sentenced in the District Court, Sydney, to eight years' imprisonment to date from 6 June 1984 for offences of kidnapping and assault upon a child aged five years. He was further sentenced to a term of 12 months in respect of the charge of assaulting the girl. A non-parole period of four years was fixed. The facts giving rise to those offences are that the respondent saw the girl in a St Vincent de Paul shop at Parramatta where she was with her mother who was looking for clothes. The girl was wandering around the shop. He approached her and asked her to come with him, which she did. He took her to a cottage at the periphery of the Parramatta Psychiatric Centre. These dwellings were occasionally used by medical officers from the Psychiatric Centre but had been uninhabited for a couple of years. He had anal intercourse with her.

10. He was released on parole on 19 December 1986. On 29 January 1987, following a report expressing grave concern about the respondent's inappropriate and potentially dangerous behaviour towards young girls, his parole was revoked and he was returned to prison to serve the remainder of his sentence. The respondent had been found in his place of employment on 21 January 1987 with a young girl locked in the toilet in the building. He was interviewed by the probation and parole officer. He stated that nothing had occurred and that everyone was over-reacting. He was interviewed the next day by a medical officer who was of the opinion that the respondent had some unresolved behavioural problems and that he was still focussing his sexual attention on girls of tender years, including his nieces with whom he had some regular contact at his parental home. He had been warned by his father not to take these children into a bedroom prior to the incident in the toilet.

11. While continuing his psychiatric outpatient treatment, he revealed to his doctor that he had taken clothing belonging to his niece which had been stored in a garage under his home unit block. He was later interviewed by the probation and parole officer and questioned about his intent. He stated "It is purely sexual, yes. I would probably have intercourse this time. I was angry at the family for thinking I was doing the wrong thing so I thought I would show them and actually do it".

12. Whilst in prison in Cooma in 1988 the respondent applied for parole. It was refused and he was eventually released to full time release on 4 December 1989. Following his release he came to live in Canberra and at the time of the subject offences was residing at the Ainslie Village.

13. The facts giving rise to these offences are that on Sunday, 25 February 1990 the respondent had been walking down a pathway from Ainslie Village to Civic through the Allawah Flats. He saw the victim and asked her where Block 5 was. She said that that was where she lived and she would show him. He knew there was a small room near the stairs on the street level. He took her into that room where he fondled her for some seconds and then had anal intercourse with her, including ejaculation. He then asked the little girl to go from the flats with him and took her to an address where a woman friend lived. After some time there the accused took her to his room at Ainslie Village, removed all her clothes and again had anal intercourse with the girl. He then took the girl to the home of a friend. She told him to take the child home. He rang a taxi and left.

14. Later that day he telephoned a psychologist who had been his counsellor while in prison from about the middle of 1988. This caused police enquiries to be made. When they went to the Ainslie Village he was not there. The police ultimately located the girl. She had not told the police or anyone else about what had happened to her. The police ultimately located the respondent two days later when he returned to the Ainslie Village. He then made very full and frank confessions to the police about what he had done.

15. In relation to the nine year old girl, the facts are that on 27 February 1990 the respondent saw the girl in the suburb of Narrabundah, noticed her scratching her leg and asked whether she wished to come back to his house with him to put some "itchy bite" cream on her leg. He then took the girl back to his residence and put her through the window to his bedroom, telling her that the lady there did not like kids. The next day he told police that he started to put the lotion on the girl's legs. He knew that she was nine and her name because she had told him. He attempted to have vaginal intercourse with the girl but told police that he had ejaculated before penetration happened. He told the girl not to tell her parents because he would go back to gaol. She said that she would not tell her parents and in fact she had not done so up to the time when police visited her parents after the respondent had made admissions to the police.

16. The respondent was born on 9 December 1951 and was 38 years of age at the time of sentencing. The sentencing judge referred to his quite unfortunate upbringing and the effect of the psychological and psychiatric evidence before him. He referred to the respondent's very strong, sometimes overwhelming, desires to have intercourse with young girls and his inability to resist those impulses. His Honour concluded that the respondent represented a serious risk to the community, particularly to young female children. He took account of the fact that the respondent had pleaded guilty and hence spared the young girls the ordeal of giving evidence. He took into account the relevant factors of retribution, general deterrence and the respondent's prospective rehabilitation.

17. This Court has jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory (Federal Court of Australia Act 1976 (s.24(1)(b)) and by definition "judgment" means, inter alia, a sentence. In an appeal against sentence (whether by the Crown or by the defendant) the powers of the Court include the power to increase or decrease the sentence or substitute a different sentence (s.28(5)).

18. The correct approach of an appellate court on a Crown appeal against inadequacy of sentence is stated in R. v Tait and Bartley (1979) 24 ALR 473 at 476:

"An appellate court does not interfere with the sentence imposed
merely because it is of the view that that sentence is insufficient
or excessive. It interferes only if it be shown that the sentencing
judge was in error in acting on a wrong principle or in
misunderstanding or in wrongly assessing some salient feature of the
evidence. The error may appear in what the sentencing judge said in
the proceedings, or the sentence itself may be so excessive or
inadequate as to manifest such error (see generally Skinner v R
[1913] HCA 32; (1913) 16 CLR 336 at 339-40; R v Withers (1925) 25 SR(NSW) 382 at
394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v R [1977] HCA 44; (1977) 15
ALR 1 at 15-17)."

19. Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration' (per Barwick C.J., Peel v R [1971] HCA 59; (1971) 125 CLR 447 at 452; [1971] HCA 59; (1972( ALR 231 at 233). A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (per Isaacs J, Whittaker v R, supra, at 249). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."

20. A few years later, King C.J. in R. v Osenkowski (1982) 30 SASR 212 at 212-3 made the following powerful observations:

"It is important that prosecution appeals should not be allowed to
circumscribe unduly the sentencing discretion of judges. There must
always be a place for the exercise of mercy where a judge's
sympathies are reasonably excited by the circumstances of the case.
There must always be a place for the leniency which has
traditionally been extended even to offenders with bad records when
the judge forms the view, almost intuitively in the case of
experienced judges, that leniency at that particular stage of the
offender's life might lead to reform. The proper role for
prosecution appeals, in my view, is (1) to enable the courts to
establish and maintain adequate standards of punishment for crime,
(2) to enable idiosyncratic views of individual judges as to
particular crimes or types of crime to be corrected, and (3)
occasionally to correct a sentence which is so disproportionate to
the seriousness of the crime as to shock the public conscience."

21. It is apparently to achieve the first and third objectives that the present appeals are brought. As Jordan C.J. pointed out in Geddes (1936) 36 SR(NSW) 554 at 555 "the judge should impose such judgment as, having regard to all the proved circumstances of the case, seems, at the same time, to accord with the general moral sense of the community in relation to a crime committed in such circumstances and to be likely to be a sufficient deterrent both to the prisoner and to others". See also Channon (1978) 33 FLR 433 as applied in Leach (1979) 1 A Crim R 320 at 324.

22. There is no difficulty in the case of sexual offences against young people in determining the single voice of the community. In relation to other offences, such as those relating to drugs, there may be stratas of society which hold disparate views. But in the case of sexual offences against young people the voice of the community, through the legislation enacted by Parliament, expresses its abhorrence and it is the courts' duty to sentence offenders accordingly.

23. The Crown's primary submission was that the sentencing judge did not err in the individual periods he set for the head sentences of four years for abduction, seven years for sexual intercourse with a child, seven years for the second offence of sexual intercourse with the same child, and five years for indecent assault involving attempted sexual intercourse with the other child. It contended that although the sentences in relation to the three counts in respect of the first child were at the bottom end of the range, the totality of sentences for all four offences of nine years is manifestly inadequate given that the offence in respect of the second child of indecent assault involving attempted sexual intercourse is quite separate. In consequence of fixing head sentences and ordering them to be partially concurrent, the sentencing judge came to set the non-parole period, proportioning it to the inadequate totality of the head sentences. The non-parole period fixed was consequently a wholly inadequate priod.

24. The Crown contended that it would have been appropriate to order that the three sentences imposed in respect of the offences against the first child be served concurrently and the sentence in respect of the offence against the second child be cumulative upon those concurrent sentences. A total period of 12 years would thus have been achieved and a non-parole period proportioned to the total period of 12 years should have been fixed, on the Crown's submission, being not less than six years.

25. The Crown further argued that the sentencing judge had no power to order the head sentences to be partially concurrent. The power of the Supreme Court to order head sentences to be served partially concurrently was not argued before the sentencing judge, nor was it specifically raised by any of the grounds of appeal. It was, however, argued by both sides on the appeal and no objection was taken to the Crown raising the argument although not referred to in the grounds of appeal. It is therefore appropriate to rule upon the Crown's submission.

26. The statutory basis for cumulative sentences is provided in s.443 of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory, the relevant provisions of which are:

"443.(1) Where a person who is convicted of an
offence against a law of the Territory:
(a) is, at the time of his or her conviction, serving
a term of imprisonment for another offence (whether
against a law of the Commonwealth or of a State or
Territory); or
(b) has been sentenced to serve a term of
imprisonment (otherwise than in default of the payment of
a fine) for another offence (whether against a law of the
Commonwealth or of a State or Territory), but has not, at
the time of his or her conviction for the first-mentioned
offence, begun to serve the term of imprisonment;
the court before which the person was convicted of the
first-mentioned offence may order that the person shall
begin serving any term of imprisonment imposed on the person in
respect of the first-mentioned offence (including a term
of imprisonment in default of the payment of a fine imposed on
the person for the first-mentioned offence) immediately after
serving the term of imprisonment referred to in paragraph (a) or
(b) as the case requires.
(2) ...
"(3) Where a person has been convicted of 2 or more offences against
laws of the Territory, and the person is sentenced (whether or not by
the court by which the person was convicted) to:
(a) 2 or more terms of imprisonment for the offences;
(b) a term or terms of imprisonment for one or more of the offences
and a term or terms of imprisonment in default of the payment of a
fine or fines imposed for the other offence or offences; or
(c) 2 or more terms of imprisonment in default of
the payment of fines imposed for the offences;
the court may order that all or some of the sentences shall be
cumulative.
(4) Where, pursuant to subsection (3), a court
directs that 2 or more sentences shall be cumulative, they shall
take effect one after the other as the court directs or, in
default of any direction, in accordance with the sequence in
which the convictions are recorded."

27. Section 443 was enacted in its present form by the Crimes (Amendment) (No. 4) Act No. 57 of 1986 which repealed the existing ss.443, 444 and 447. It is interesting to note the terms of the repealed s.447, which were:

"447. Where a person is, in any case, convicted on the same
indictment of two or more offences similarly punishable, the Judge
may, if he thinks fit, pass sentence on the second and third counts
respectively for a term to commence at a future day named by him,
within, or at the expiration of, the term of sentence passed on the
last preceding count."

28. Under the repealed s.447 it would, in my opinion, have been lawful to impose a partially concurrent sentence by passing sentence for a term to commence at a specified future date within or at the expiration of a term of sentence already passed. However, s.447 has been repealed and there is now no statutory provision expressly authorising sentences to be partially cumulative. There is a possible argument that the power to impose a partially cumulative sentence exists in s.441A which was enacted by Act No. 27 of 1983. It provides:

"441A. Where a Court passes a sentence, the sentence shall take
effect from the date on which it is passed unless the Court
otherwise orders."

29. The argument is that a Court may order that a sentence take effect at a date some time in the future and that day may fall within the period of another sentence. In my opinion that argument should not be adopted because of the express provisions in s.443 relating to cumulative sentences.

30. It is also relevant that when s.441A was inserted by Act No. 27 of 1983, s.443 was amended by the same Act but the amendments are not relevant for present purposes. In other words, s.441A was in place when s.443 was enacted in its present form by Act No. 57 of 1986.

31. In R. v Rajacic (1973) VR 636 the Full Court of Victoria examined the power to order a sentence to be served either wholly or in part concurrently with a sentence previously or contemporaneously imposed. The statutory basis was s.535(1) of the Crimes Act 1958 (Vic). Smith ACJ said in construing s.535(1) that it was necessary to bear in mind that the power to order a partial concurrence of sentences was one of considerable antiquity and that it was in constant exercise in the State of Victoria at the time when the provisions of s.535(1) were first enacted. He considered that in the case of misdemeanours, the common law empowered the court of trial to determine whether a sentence of imprisonment which was imposed should commence to be served forthwith and therefore concurrently with any sentence previously or contemporaneously imposed (which was the position in the absence of special order), or whether it should be wholly or partly cumulative upon sentences previously or contemporaneously imposed.

32. He traced the history of the legislation which, he said, did not take away the power which was previously possessed by the court to direct that a sentence should be served in part concurrently with, and in part cumulatively upon, a sentence previously or contemporaneously imposed. Apparently the power was in common use in the State of Victoria when the provisions of s.535(1) were first enacted. In the light of these considerations it appeared to be clear that s.535(1) could not be construed as abolishing or limiting the court's power to direct a partial concurrence of sentences. He added that if, contrary to his view, the court previously lacked that power, s.123(1) of the Social Welfare Act 1970 and corresponding earlier provisions conferred it.

33. Norris J. held that the power did not exist at common law but that the words in s.123(1) of the Social Welfare Act "unless otherwise directed" or their earlier equivalents, being perfectly general words, conferred that power. Newton J. agreed that the power existed, but did not express an opinion as to its source.

34. In R. v Rumpf the Court of Criminal Appeal of Victoria had to construe s.19(2) of the Crimes Act 1914 (Cth), which then provided:

"Where a person is convicted of more offences (whether indictable or
otherwise) than one before the same Court at the same sitting and
is sentenced to more than one term of imprisonment, the Court may
direct that the sentences shall be concurrent or cumulative."

35. Following Western Australian authority construing similar provisions in s.20 of the Criminal Code (W.A.), McGarvie J. noted that, unlike the Victorian provision discussed in Rajacic, s.19(2) contained no words which imported a power to grant partial concurrency and held that there was no power under s.19(2) to make the sentences under review partly concurrent and partly cumulative. Rumpf was followed in R. v De Zylva (1988) 33 A Crim R 44.

36. It cannot be asserted that the practice of courts in the Australian Capital Territory has embraced, in the concept of concurrency, sentences including partial concurrency. Whatever may have been the position before the repeal of s.447 of the Crimes Act 1900 (NSW) by Act No. 57 of 1986, the legislature by repealing s.447 appears to have taken away the power to make sentences partially concurrent. In substitution therefor it has merely provided in s.443 the power to order that all or some sentences shall be cumulative.

37. The case of R. v Peter Vaitos (1981) 4 A Crim R 239 relied upon by counsel for the respondent is an example of the practice of partially cumulative sentences still being imposed in the State of Victoria under its legislation, but it is no authority for the practice under the existing law in the Australian Capital Territory.

38. I would therefore agree with the Crown's submission that the sentencing judge had no power to order the sentences imposed upon the respondent to be partially concurrent and partially cumulative.

39. If for no other reason, it becomes necessary, therefore, for this Court to review the exercise of the sentencing discretion.

40. The sentencing judge had in evidence the New South Wales Department of Corrective Services Probation and Parole Service pre-release report dated 16 February 1988 which dealt with the offender's psychiatric state from the time of his incarceration in 1984 until his ultimate release at the expiration of his sentence on 4 December 1989. He also had in evidence up to date psychiatric evidence and a pre-sentence report from the A.C.T. Housing and Community Services Bureau. Included in that material was a report from Dr H.v Veness, consultant psychiatrist, dated 26 July 1990. Dr Veness also gave evidence.

41. Dr Veness had said in his report that the respondent had a severely distorted personality and that things had got worse as his relationships with adults had repeatedly failed. He said further that the respondent represented a danger in that there was a considerable likelihood of repetition of the offences without further treatment. He urged that it was imperative that the respondent undergo treatment whether in prison or not. Dr Veness expanded upon the nature of the treatment in the course of his evidence and his opinion that without treatment the respondent was a danger.

42. There was other evidence from the respondent's probation and parole officer over the period that he was serving his previous sentence in Cooma prison that he regarded the respondent as a risk to the community during that period and, at the time of giving evidence before the sentencing judge, his opinion had not changed in that respect. There was similar evidence from an A.C.T. probation and parole officer who had interviewed the respondent for the purposes of preparing a pre-sentence report in relation to the subject offences.

43. It is apparent that the sentencing judge had regard to that evidence when passing sentence upon the respondent. He said that, unless the respondent was successfully treated, he may well offend again. His Honour urged that the respondent be given the opportunity to undertake treatment.

44. He said that the respondent "clearly represents a serious risk to the community, particularly to young female children". It was not contended on the appeal that his Honour had not correctly so found.

45. The other factor which must weigh heavily in the structuring of an appropriate sentence is, as the Crown has urged, the respondent's previous criminal history for sexual offences of a very similar nature. In Veen v The Queen (No. 2) [1988] HCA 14; (1987-1988) 164 CLR 465 at p 477 the majority of the High Court (Mason C.J., Brennan, Dawson and Toohey JJ) stated the principle relating to the significance of antecedent criminal history in the sentencing process:

"... The first is that the antecedent criminal history of an
offender is a factor which may be taken into account in determining
the sentence to be imposed, but it cannot be given such weight as to
lead to the imposition of a penalty which is disproportionate to the
gravity of the instant offence. To do so would be to impose a fresh
penalty for past offences: Director of Public Prosecutions v
Ottewell (1970) AC 642. The antecedent criminal history is
relevant, however, to show whether the instant offence is an
uncharacteristic aberration or whether the offender has manifested
in his commission of the instant offence a continuing attitude of
disobedience of the law. In the latter case, retribution,
deterrence and protection of society may all indicate that a more
severe penalty is warranted. It is legitimate to take account of
the antecedent criminal history when it illuminates the moral
culpability of the offender in the instant case, or shows his
dangerous propensity or shows a need to impose condign punishment to
deter the offender and other offenders from committing further
offences of a like kind. Counsel for the applicant submitted that
antecedent criminal history was relevant only to a prisoner's claim
for leniency. That is not and has never been the approach of the
courts in this country and it would be at odds with the community's
understanding of what is relevant to the assessment of criminal
penalties."

46. In accordance with the principle thus stated, the Crown contended that the subject offences committed by the respondent manifested a continuing attitude of disobedience of the law.

47. In my opinion the totality of the head sentences imposed upon the respondent was totally inadequate in all the circumstances. In addition, I am of the opinion that it was not appropriate to order that the sentence for the fourth offence be served concurrently with the sentences imposed in relation to the five year old girl. That offence had occurred some four to five weeks earlier than the offences committed upon the five year old girl and was quite separate and distinct. In my opinion the sentence of five years' imprisonment for indecent assault involving attempted sexual intercourse upon the nine year old girl should have been cumulative upon the sentences imposed concurrently in relation to the five year old girl.

48. Without disturbing the lengths of those sentences, the totality of the head sentences should be 12 years to accord with the general moral sense of the community in relation to those crimes and as punishment for them.

49. So far as the non-parole period is concerned, I am likewise of the view that the period of four years is inadequate, especially having regard to the fact that in the sentences imposed on 12 October 1984 in the District Court, Sydney, a non-parole period of four years was fixed. The respondent was released on parole. That parole was revoked due to his sinister behaviour of the same type as had caused him to be sentenced for serious offences in relation to the five year old child. He was not again offered parole. He served the head sentence less remissions.

50. The factor of retribution for these offences must be given more weight than is reflected in a non-parole period of four years. As the High Court (Barwick C.J, Menzies, Stephen and Mason JJ), said in Power v The Queen [1974] HCA 26; (1973) 131 CLR 623 at p 628, "confinement in a prison serves the same purposes whether before or after the expiration of a non-parole period and throughout it is punishment, but punishment directed towards reformation. ... In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention."

51. Power v The Queen has been affirmed many times in the High Court (see, for example, Deakin v The Queen [1984] HCA 31; (1984) 54 ALR 765; R. v Paivinen [1985] HCA 39; (1985) 158 CLR 489; R. v Watt [1988] HCA 58; (1988) 165 CLR 474 at 481; Hunter v The Queen (1988) 62 ALJR 424; Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372; and more recently, Bugmy v The Queen [1990] HCA 18; (1990) 64 ALJR 309).

52. In Bugmy v The Queen the majority allowed an appeal by a person sentenced to life imprisonment against the allocation of a minimum term of 18 years 6 months and remitted the matter to the Court of Criminal Appeal of Victoria for further consideration. In their dissenting judgment, Mason C.J. and McHugh J., approving the observations of Jenkinson J. in Peter Kay Morgan and Douglas Kay Morgan (1980) 7 A Crim R 146, said that considerations relevant to the interest of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and again in fixing the minimum term, and that the considerations that the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the head sentence. Their Honours discussed the factors for the sentencing judge to take into account in fixing a minimum term, including rehabilitation, the nature of the crime because a more serious crime will warrant a greater minimum term due to its deterrent effect upon others, the need to give close attention to the danger which the offender presents to the community, and the prospects as assessed by the sentencing judge of the future progress of the offender and the danger he or she would present to the community. I do not understand the majority (Dawson, Toohey and Gaudron JJ) to have disagreed in any way with those observations.

53. The principles applicable to fixing a non-parole period as laid down by the High Court in Power v The Queen have been followed in the various States and Territories of the Commonwealth (see, for example, R. v Creed 1985) 37 SASR 566; Morgan and Morgan, supra; R. v Lian, unreported decision of the New South Wales Court of Criminal Appeal, 28 June 1990; Anderson v The Queen (1978) 19 ALR 212; Jones v The Queen, unreported decision of the Federal Court sitting on appeal from the Supreme Court of the Northern Territory delivered 17 August 1984; Bain v The Queen (1983) 47 ALR 472; The Queen v Brusch; Brusch v The Queen (1986) 11 FCR 582; and R. v Raggett, Douglas and Miller, unreported decision of the NT Court of Criminal Appeal delivered 28 September 1990).

54. It is clear law that the nature of the crime is a relevant factor for the sentencing judge to take into account in fixing a non-parole period because a more serious offence will warrant a greater non-parole period due to its deterrent effect upon others and the need to give close attention to the danger which the offender presents to the community.

55. I propose that:

(1) the appeal be allowed and the sentences be varied as follows:-
(2) the head sentences of four years' imprisonment
for abduction, seven years' imprisonment for sexual
intercourse with a child, and seven years' imprisonment for
sexual intercourse with the same child on a second occasion
to date from 27 February 1990, be confirmed and those
sentences be served concurrently;
(3) the sentence of five years' imprisonment for
indecent assault involving attempted sexual
intercourse on the other girl be confirmed and that it be
served cumulatively upon the sentences referred to above;
and
(4) a non-parole period of six years to date from
27 February 1990 be fixed.

I have had the benefit of reading in draft form the reasons for judgment of

Gallop J. I agree with them and with the orders he proposes.