Attorney-General v Sexton[1997] QCA 264

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane C.A. No.238 of 1997

[R v. Sexton; ex parte A-G]

THE QUEEN

v.

PHILLIP IAN SEXTON

Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Pincus JA

Shepherdson J

White J

Judgment delivered 29 August 1997

Separate reasons for judgment of each member of the Court; Pincus JA and White J concurring as to the orders made, Shepherdson J dissenting.

APPEAL ALLOWED.  SENTENCES IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF SENTENCES OF 6 MONTHS’ IMPRISONMENT ON EACH OF COUNTS 1 TO 5 AND 18 MONTHS ON EACH OF COUNTS 12, 13 AND 14 ARE IMPOSED, ALL TO BE SERVED CONCURRENTLY; RECOMMEND THAT ANY PAROLE ORDER MADE IN RESPECT OF THE RESPONDENT CONTAIN THE REQUIREMENT THAT THE RESPONDENT UNDERTAKE SUCH PSYCHOLOGICAL, PSYCHIATRIC OR OTHER TREATMENT COUNSELLING AS IS THOUGHT TO BE DESIRABLE TO PREVENT REPETITION OF OFFENCES OF THE TYPE IN QUESTION.  PURSUANT TO S. 161 OF THE PENALTIES & SENTENCES ACT 1992 THE 30 DAYS THE RESPONDENT SPENT IN PRE-SENTENCE CUSTODY IN RESPECT OF COUNTS 12, 13 AND 14 BETWEEN 17 APRIL 1997 AND 16 MAY 1997 ARE IMPRISONMENT ALREADY SERVED UNDER THE SENTENCE.

CATCHWORDS: CRIMINAL LAW - SENTENCE - Attorney-General’s appeal against sentence for multiple offences of taking indecent photograph of child, indecent dealing of child and wilfully exposing children to an indecent video tape - sentenced to 12 months imprisonment, wholly suspended for 3 years; 3 months imprisonment and 3 years probation - whether sentences manifestly inadequate because they failed to adequately reflect the gravity of the offences; they failed to take sufficient account of the need for general deterrence; the learned sentencing judge gave too much weight to factors going to mitigation. 

Everett v.  R (1994) 181 CLR 295

R.  v.  Melano; ex parte Attorney-General [1995] 2 Qd.R 186

R v.  Bazley (CA No.  220 of 1997 5 August 1997)

Counsel:  Mrs L Clare for the appellant

Mrs K McGinness for the respondent

Solicitors:  Director of Public Prosecutions (Queensland) for the applicant

Legal Aid Queensland for the respondent

Hearing date: 6 August 1997

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 29 August 1997

I have read the reasons of Shepherdson J and those of White J in which the facts of the case and the considerations applicable are set out.  The outstanding feature of the case, in my view, is that the respondent had, a few years before he committed the offences in question, committed other similar offences, involving sexual interference with young girls; as a result he was required to perform community service.  The occurrence of the series of offences with which we are presently concerned makes it clear, to my mind, that a more substantial penalty than was imposed below was necessary, to bring home to the respondent that the law regards these matters very seriously.  There is also the fact that, on the material before the primary judge, there is reason to think that both the children the victims of these offences suffered significant mental stress as a result.

I agree with the orders proposed by White J.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 29 August 1997

The Attorney-General of Queensland has appealed against sentences imposed on the abovenamed Phillip Ian Sexton by a District Court Judge on 16 May 1997.   The respondent Sexton had pleaded guilty to 8 offences against s. 210 of the Criminal Code.  The offences and the sentences imposed were:-

1. Five charges (Counts Nos. 1 to 5 inclusive) that on 5 occasions between 1/3/96 and 1/5/96 Sexton without legitimate reason took an indecent photograph of a female child under the age of 16 years at a time when that child was under the age of 12 years.

Sentence:-  12 months' imprisonment such sentence to be suspended forthwith and with a direction that Sexton not commit any other offence punishable by imprisonment within a 3 year period.

2. One Count (Count No. 12) of unlawfully and indecently dealing with the same child as that referred to in the above 5 charges - offence committed between 1/6/96 and 13/6/96.

Sentence:-  3 months' imprisonment and 3 years' probation with certain conditions to which I shall later refer.

3. One Count (Count No. 13) of unlawfully and indecently dealing with the sister of the girl referred to in the earlier charges who was a child under the age of 16 years - this offence occurred  between 1/6/96 and 13/6/96.

Sentence:- same as for Count No. 12.  

4. One charge (Count No. 14) that on 20/5/96 without legitimate reason Sexton exposed the two children mentioned above to an indecent video tape, such children being under the age of 16 years and one of them being a child under the age of 12 years.

Sentence:- same as for Counts Nos. 12 and 13.

The maximum penalty to which the applicant was exposed was 14 years where the child concerned in the offence was under the age of 12 years and 10 years in the charge where the child was above the age of 12 years.

The respondent was 33 years old at the time of sentence - he was born on 7 May 1964.

He had a prior criminal history which was placed before the learned sentencing judge.  On 5 September 1992 in the Brisbane District Court, on 1 charge of indecent dealing with a child under the age of 12 years, and 1 charge of procuring a child under the age of 12 years to commit an indecent act, he was ordered to perform unpaid community service of 40 hours' for each offence  making a total of 80 hours.

The appellant contends that the sentences imposed on 16 May 1997 were manifestly inadequate because:-

1. they failed to reflect adequately the gravity of the offences;

2. they failed to take sufficient account of the need for general deterrence;

3. the learned sentencing judge gave too much weight to factors going to mitigation.

The question for this Court is whether the sentences imposed were outside the scope of a proper sentencing discretion (see the Queen v. Peter Joseph Melano ex parte - Attorney-General of Queensland, appellant (1995) 2 Qd.R186).  The learned sentencing judge was told that the respondent became a friend of the children's family some time before Easter in 1996, while he lived a few houses away from them at the North Coast.  The respondent was a teacher at a local school.  On 10 June 1996 the child's mother spoke to the younger girl and as a result of what she was told the police came into the picture.  On that same day they executed a search warrant at the respondent's home and seized 5 photographs of the younger girl and numerous pairs of plastic see-through incontinence pants.  The 5 photographs are the subject of Counts Nos. 1-5 and they were shown to the learned sentencing judge.  It appears all photographs were taken on the same day.  The child was on the toilet, the respondent pushed the door open and told the child to smile, stand up and put her hands on her hips.  He then took certain photographs which showed the child naked below the waist.  He also persuaded the child to try on the incontinence pants so that he could take photographs telling her they were to show to her friend who wet the bed.  These photographs of the child wearing the pants confirm the child's statement to the police that the respondent had told her to pull the pants up tightly.  Again, these photographs plainly show the child naked (apart from the see-through pants) from the waist down.

In respect of the two Counts of unlawful and indecent dealing (Nos. 12 and 13) the learned sentencing judge was told that the respondent had been visiting the house when the two sisters were sitting on a couch in the lounge room, that the respondent reached over and touched the younger girl on the vagina and then leant over and felt the older girl on her bottom.  The older girl in her statement to the police confirmed these incidents, adding that the respondent had squeezed her bottom.  The touchings in Counts 12 and 13 were on the exterior of clothing each child wore.

The final offence concerning the indecent video tape was committed on an occasion when the respondent brought a pornographic video to the house on a night when the children's mother and their older brother had gone to a friend's house to watch on television a major rugby league match.  The girls recalled the name of the video - the learned sentencing judge was told the respondent had asked the girls to put the video "Hidden Obsession" onto the video machine but they refused; that he operated it himself, that the younger girl tried to fast forward the film and hid under a doona, but when she looked from under the doona she saw naked people in an aeroplane having sex.  The older girl said she watched the video and saw naked women kissing and could see their breasts and vaginas.

When the respondent was interviewed by police he admitted taking the photographs but denied the other offences.  He told the police officer that he had a problem with children and needed help and agreed to be reinterviewed.  During this second interview the respondent denied touching the complainants but admitted he found the photographs of the younger girl "a little sexually arousing" and added "but I wouldn't touch a child".

The learned sentencing judge had before him a transcript of part of the proceedings before another District Court Judge in September 1992, when the respondent had pleaded guilty to the two charges which I earlier mentioned.  The transcript did include the sentencing remarks.

The learned sentencing judge also had before him a victim impact statement dated 15 May 1997 made by the children's mother.  This document refers to the younger child still having nightmares and states that "we had to move house because he knew where we lived and she was very scared of him".  The statement also refers to the elder daughter's refusal to go to school while the respondent was still teaching, and the fact that the elder girl had not even completed her Junior.

The learned sentencing judge in his sentencing comments said he regarded the offences as "serious"; he described the two girls of that age as "extremely vulnerable", "vulnerable to being dealt with by adults" and "particularly vulnerable when the adult is a family friend, a trusted - or a person who should be a trusted person".  His Honour kept in mind the need for rehabilitation and the need for effective deterrence.   He referred to prison as one of the most effective deterrents and he took into account the statement from the children's mother.  His Honour referred to the convictions in 1992 for "this sort of thing before" and the respondent's acknowledgment that he was aware that he needed help with his problem.  The learned sentencing judge had before him a report dated 15 May 1997 from Mr Barry J. Kerr, a clinical psychologist, which traced the respondent's background and as His Honour pointed out the respondent's upbringing had "a number of negative aspects to it".  His Honour went on to say:-

"What you did to these children or with these children is not as bad as some other descriptions of things that come before the Courts.  Nevertheless, for the reasons I have attempted to outline, it was serious misconduct with vulnerable children by a person who they trusted or should have been able to trust certainly by a person their parent trusted."

His Honour referred to the fact that the respondent had been in custody for 30 days and, obviously considering the matter of rehabilitation he made the probation order in order that he could impose a condition requiring the respondent to take part in programs "particularly programs for sexual offenders designed by the probation service". 

The learned sentencing judge mentioned that in 1992 when he was before the Court for sentencing there had been some talk about the respondent obtaining counselling and commented "it does not appear to have happened.  The judge on that occasion left it up to you.  You do not seem to have done it".

On reading the learned sentencing judge's comments in May this year, it is apparent that His Honour by the use of the probation order and the suspended prison sentence was attempting to bring home to the respondent what would happen to him if the respondent were to "do this sort of thing again".

The learned sentencing judge, in arriving at the sentences and the making the probation order for 3 years, was endeavouring to marry the aspects of deterrence and rehabilitation.  On the appellant's case, the factors which His Honour took into account - and I have summarised them earlier - all point to the need for a longer prison sentence to be imposed.  The younger of the two children was 10 years old at the time; the respondent clearly took advantage of his position of trust and the vulnerability of the children particularly the younger one.  The weakness which the respondent has for small girls is obviously one which requires treatment.  Any sentencing judge will be concerned to see that he or she is able to impose conditions to ensure, as far as possible, that a person (such as the respondent) being sentenced does receive treatment for a condition which the prisoner may suffer and which, without treatment, can or may lead him into criminal conduct which conduct can harm children.  Obviously a community service order of some type e.g. probation or unpaid community work offers the best and only opportunity to specify the condition which is to be obeyed.  Unfortunately the legislation restricts the marriage of a term of imprisonment and a probation order.  It is my view that the legislature should take steps to extend the power to imprison and to combine imprisonment with a probation order beyond the period of 6 months imprisonment specified in the legislation. 

Any recommendation for treatment in respect of a person being sent to gaol is nothing more than that - a recommendation. 

The matter is complicated by the fact that as we were told from the Bar table, on 13 June 1997 the respondent was released from custody.  If the appeal succeeds and the sentence of imprisonment is increased, then the respondent must be returned to custody after some 2 months of liberty.

In The Queen v. John Reginal Bazley; ex parte Attorney-General of Queensland (CA 220 of 1997) - unreported - judgment delivered 5 August 1997 this Court said:-

"It has long been accepted that an appeal against sentence by the Attorney-General cuts across the time honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed:  Everett v. R. (1994) 181 C.L.R. 295 at 299.  A case such as this in which, in consequence of the sentence imposed below, the offender has not been put in actual custody, illustrates the difficulty facing the Attorney in such an appeal.  This Court made that point in R. v. Melano; ex parte Attorney-General [1995] 2 Qd.R. 186 at 190 by saying that, especially where liberty is at stake, the Court is sometimes less reluctant in an appeal by the offender to alter the sentence imposed below.  In any event it will not do so in an Attorney's appeal unless the sentencing judge has erred in principle either because an error was discernible or demonstrated by a manifest inadequacy of sentence."

Bazley is distinguishable from the present in that here the respondent has spent 58 days in custody (including 30 days pre-sentence custody).

In Everett v. The Queen (supra) the High Court applied Reg v. Wilton (1981) 28 SASR at pp. 367-368 where King CJ. (with whom Mitchell and Williams JJ. agreed) had said:-

"It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the Court below.  The consequences of allowing the prosecution to do so are serious.  The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond.  If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment.  This is what the Federal Court meant in Reg. v. Tait and Bartley by 'double jeopardy'.  In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course.  I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge.  In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made.  Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General."

In my view that passage is relevant in the present matter.  Before the learned sentencing judge the Crown Prosecutor submitted that "a not insignificant custodial sentence is the only appropriate penalty".   Counsel for the respondent then addressed His Honour who in the course of hearing those submissions referred to the respondent's need for assistance and said "And so whatever order I make, I intend to structure it so that he is required to take part in an appropriate program ... .  That doesn't necessarily mean that I'm not going to imprison him though".

Defence counsel then submitted that in effect His Honour could "have recourse to sentence requiring imprisonment of no more than six months with probation thereafter ... ".  His Honour replied "yes".  The prosecutor was invited to address the court again but declined the offer.

The result was that the prosecutor did not submit that the "structuring" spoken of by His Honour which it appeared would encompass a short custodial term coupled with probation was outside the scope of the judge's proper sentencing discretion.  This omission by the prosecutor means in my view that in accordance with Wilton (supra) this court should not accede to the Attorney-General's submission that the sentences for Counts 12, 13 and 14 should be set aside.  Such a view is strengthened by the respondent’s liberty since 13 June 1997.

This still leaves the suspended sentence of 12 months coupled with the direction that the respondent not commit any other offence punishable by imprisonment within a 3 year period from 16 May 1997.  Were he to do so, he would go to gaol to serve the 12 months' imprisonment (s. 146 Penalties and Sentences Act 1992).  The suspended sentence, imposed for Counts 1 to 5 hangs over the respondent's head for 3 years - as the learned sentencing judge told him.

His Honour obviously intended to structure the exercise of his sentencing discretion to ensure that the respondent underwent treatment and counselling (by use of the probation order), to ensure that he spent some time in custody and ensure that he was encouraged to remain law abiding.  Thus His Honour has married rehabilitation and deterrence.

I have concluded that the appellant has failed to demonstrate that the learned sentencing judge has erred in principle or that the sentences imposed were manifestly low and that the sentences imposed were outside the exercise of a proper sentencing discretion.

I would dismiss the appeal.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 29 August 1997

The circumstances of these offences and the sentences imposed are fully set out in the reasons for judgment of Shepherdson J. and it is unnecessary to repeat them again.

The entitlement of the Attorney-General to appeal against any sentence pronounced is found in s. 669A(1) of the Criminal Code:

"The Attorney-General may appeal to the Court against any sentence pronounced . . . and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper."

The approach of this court to an Attorney-General's appeal has been discussed in R v. Osmond, ex parte Attorney-General [1987] 1 Qd. R. 429; R v. Melano, ex parte Attorney-General [1995] 2 Qd. R. 186 and R v. Bazley C.A. No. 220 of 1997 judgment delivered 5 August 1997.  Observations in Osmond by Macrossan J. (as his Honour the Chief Justice then was) need to be read in the light of the decision of the High Court in Everett v. The Queen (1994) 181 CLR 295.  In Everett the Attorney-General for Tasmania required leave to appeal but the principles are equally applicable to an Attorney's appeal.  The majority (Brennan, Dawson, Deane and Gaudron JJ.) adopted Barwick CJ's statement in Griffiths v. The Queen (1977) 137 CLR 293 at p. 310:

". . . an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons".

Their Honours observed at p. 300:

"The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ. saw as constituting "error in point of principle"".

In Melano at pp. 189-90 this court concluded that notwithstanding the width of the expression used in s. 669A(1) the approach to that section should be in accordance with established principles for review of a sentencing discretion.  The court concluded that ordinarily an appeal should not be allowed under s. 669A(1)

"unless the sentence is outside the sound exercise of the sentencing judge's discretion particularly bearing in mind the observations in Everett that an appeal against sentence by the Attorney-General "has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed".

In Bazley the majority (Davies and McPherson JJA.) affirmed that approach noting that where the offender has not been put in actual custody the observation in Everett (quoted above) "illustrates the difficulty facing the Attorney . . ." and said that the Court will not interfere

". . . in an Attorney's appeal unless the sentencing judge has erred in principle either because an error was discernible or demonstrated by a manifest inadequacy of sentence".

I am of the view that the learned sentencing judge here imposed a manifestly inadequate sentence: Pham C.A. No. 435 of 1995; Denboon C.A. No. 211 of 1993; H C.A. No. 88 of 1997 and Sherrat C.A. No. 240 of 1996.  I agree with respect with the observations of Shepherdson J that the inability of courts to impose probation if a period of imprisonment longer than 6 months is imposed in respect of any one charge ought to be reviewed.  That is particularly so in cases where offenders require psychiatric or psychological treatment.  The observations of Williams J. (dissenting) in Bazley as to the limited range of sentencing options available are apt in this  regard.

The learned sentencing judge considered the factors which were appropriate to the respondent in arriving at the sentences and imposing probation but in my view gave insufficient weight to issues of deterrence both personal and general and too much to the offender's rehabilitation, important though that is in the circumstances of this offender.  Had these been a first series of offences of this kind such a combination of sentences may have been acceptable or at least beyond appeal but the respondent had been convicted for offences of indecent dealing with children previously.  These offences occurred between the 22nd December 1990 and the 12th January 1991 and were dealt with in the District Court in September 1992.  The learned sentencing judge below had tendered to him the transcript of proceedings on sentence and the sentencing remarks in respect of those earlier offences.  The respondent had become friendly with a family of which the complainant children, twin girls aged 9, were members.  He was then aged 28 years.  He stayed with the family over the Christmas period and on the night in question after the family was asleep entered the room where the girls were sleeping after one of them was heard wheezing and coughing.  He gave her some medicine and then put his hand inside her pants and rubbed her vagina for a short time and then left.  The second occasion concerned the respondent taking some of the children to the swimming pool while the adults in the party were in the house.  The respondent directed the other children to the end of the pool and spoke to the other twin and offered to show her his private parts if she would show him hers.  He lifted his togs and showed his penis to her and at his request she showed him her vagina through her swimming costume.  The children complained to a teacher on their return to school and investigations by the police took place.  The respondent was required to perform some community service by way of penalty.

In respect of those offences a plea was entered on the morning of the trial with the two children in attendance at court and ready to give evidence.  The judge declined to follow the submissions of both counsel that probation with appropriate counselling be part of the sentence.  The court heard that the events had caused the children distress and that they had had counselling.  His Honour said in sentencing the respondent on that occasion  (R. 41)

"As I have said to your counsel, if I thought that you could benefit from the particular service that the probation officers can provide, I would certainly yield to his submission that I make a probation order in this case.  However, it seems to me that on the material I have had presented to me I cannot come to that conclusion.  It may be, of course, that you would benefit from counselling from a psychologist or perhaps some other appropriately qualified person, and it will, of course, be open for you to seek such counselling and assistance, but I do not propose to make it a part of an order of this Court that you should seek such assistance.  It seems to me that the best thing for you, if you are persuaded that you need such counselling, is to seek it voluntarily yourself".

Accordingly, when the respondent came to be sentenced for these offences he had had the warning of the previous offences and had not sought any treatment for his aberrant conduct despite the clear words of the sentencing judge.  Programs are available in prisons in Queensland for sex offenders although they cannot be compelled to participate whereas failure to participate in treatment imposed as a special condition of probation may lead to breach proceedings  and, no doubt, the learned sentencing judge had this in mind on this occasion.

The consequences for the children here, as noted by Shepherdson J., have been quite serious.  There seems to have been some connection between the elder complainant and the respondent at school because her mother wrote (R. 53) "J (14) would not go to school while he was still teaching . . .".  although nothing was mentioned of this by the prosecutor.  The courts are required to have regard to "any physical or emotional harm done to a victim", s. 9(2)(c) Penalties & Sentences Act 1992 and it seems to have been quite severe here. 

There are two further matters which require consideration.  The Court was informed that the respondent was released from custody on 13th June 1997.  It is a matter of concern to return a person to custody once released back into the community but if the sentence imposed was manifestly inadequate a proper sentence must be imposed but giving that factor of release all appropriate consideration.

The other matter derives from a statement in Everett at p. 300.  The Court said that where the Crown "made no suggestion whatsoever" that orders which the sentencing judge expressed that he was contemplating making, would be beyond the proper scope of the sentencing discretion, in the circumstances of the case the Attorney ought not to be given leave to appeal.  The court quoted with approval the passage from R v. Wilton (1981) 28 SASR 362 at pp. 367-8 which is set out in the reasons of Shepherdson J.  Following that quotation the majority said at p. 303:

"Those comments were made in a judgment disposing of an actual appeal after leave had been granted and, as the third sentence makes clear are directed to a case where an order suspending the whole of the unexpired part of the term of imprisonment has been made with the result that the offender was entitled to go free.  They should be applied to an application by the Crown for leave to appeal against such an order if it appears that the Crown was on notice that there was a real possibility that such an order might be made but refrained from submitting that it would be inappropriate and not within a proper exercise of the sentencing discretion".

The prosecutor below made the following submission (R. 25)

"In all of the circumstances including the prisoner's previous conviction obviously I'd submit that this prisoner is one for whom special deterrence is of the utmost importance.  And, as I have already submitted, community protection and obviously as in all cases such as this the principles of general deterrence and the reflection of community disapproval are important factors and in my submission a not insignificant custodial sentence is the only appropriate penalty."

The prosecutor then mentioned that the prisoner had been in custody on remand for a total of 30 days.  The respondent's counsel referred to his client's need for rehabilitation to which his Honour replied (R. 29)

"I acknowledge he needs assistance.  If he doesn't attend to something like that, then it is likely that at some time in the future this will reoccur at a time of temptation.  And so whatever order I make, I intend to structure it so that he is required to take part in an appropriate program . . . that doesn't necessarily mean that I am not going to imprison him though".

Defence counsel submitted that probation could be ordered immediately and then went on to submit (R. 30)

"A second way is to have recourse to sentence requiring imprisonment of no more than six months with probation thereafter and that could be a sentence of 30 days or somewhere other than that . . . between now and 60 days.  There are other ways Your Honour could structure it and my submission I - they do tend to be a bit on the burdensome side, that is to the effect of on the photographic charges in forming one form of penalty which can require supervision and medical treatment guaranteed under a probation order and some form of suspended sentence on the other charges, I'd obviously urge, by way of submission, towards the first alternatives as being more likely to be productive of a good outcome because they are not of the onerous nature".

His Honour said nothing more as to the nature of the sentences which he contemplated imposing and when invited in the usual way to reply the prosecutor declined.

I doubt whether this conduct by the prosecutor can be regarded as falling within the situation contemplated by the Court in Everett.  His Honour had clearly given the impression that he was inclined towards a term of imprisonment and also a period of probation with special conditions.  Defence counsel had mentioned a range of options which could involve moulding the sentences to impose a custodial term which he submitted could be wholly suspended and probation on a separate offence.  This did not, in my view, call for a reply from the prosecutor who had made firm submissions about a significant custodial penalty and had heard his Honour indicate that a custodial sentence was likely to be imposed.  I do not consider that the Attorney-General should be precluded on that ground from succeeding on the appeal.  As I have indicated I am of the opinion that the overall sentence in not requiring the respondent to spend a longer period in prison is in error.

I would allow the appeal, set aside the sentences imposed and in lieu impose a sentence of 6 months' imprisonment on each of counts 1 to 5 and 18 months' imprisonment on each of counts 12, 13 and 14, all to be served concurrently; I would also recommend that any parole order made in respect of the respondent contain the requirement that the respondent undertake such psychological, psychiatric or other treatment counselling as is thought desirable to prevent repetition of offences of the type in question.

The respondent spent 30 days in pre-sentence custody in respect of counts 12, 13 and 14 between 17 April 1997 and 16 May 1997.  Pursuant to s. 161 of the Penalties & Sentences Act 1992 those days are imprisonment already served under the sentence.