THE QUEEN v. DAVID DIXON JABALTJARI No. CA 4 of 1989 S.C.C. No. 12 of 1988 Criminal Law (1989) 64 NTR 1

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THE QUEEN v. DAVID DIXON JABALTJARI      
No. CA 4 of 1989
S.C.C. No. 12 of 1988
Criminal Law
(1989) 64 NTR 1
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
Asche C.J.(1), Martin(2) and Angel(3) JJ.

CWDS
  Criminal Law - Sentence - plea of guilty - saving of public expense and
administrative inconvenience - whether appropriate basis for mitigation
  Criminal Law - Sentence - consideration and discussion of mitigatory basis
of plea of guilty
  Criminal Law - Sentence - discount for plea of guilty - request for judicial
guidelines and policy - sentencing discretion - individual nature of
sentencing process
  Criminal Law - Sentence "Rape" - establishment of higher "benchmark" - no
evidence of prevalence - whether appropriate for court to set new "benchmark"
- NT Criminal Code S.192(1), (4)
  Criminal Law - Sentence - plea of guilty - mitigation of sentence - whether
mitigation dependent upon plea indicating genuine remorse
  Statutes:
    NT Criminal Code
    Parole of Prisoners Act
    Penalties and Sentences Act 1985
  Cases referred to:
    Australian Coal and Shale Employers' Federation v
    The Commonwealth and Ors (1953) 94 CLR 621
    Davis (1980) 2 CAR(S) 168
    De Haan (1967) 52 CAR 25
    DPP v Ottewell (1970) AC 642
    Griffiths v R (1977) 137 CLR 293
    Harris v R (1967) SASR 316
    Kear (1978) 2 Crim L J 40
    Lintern (unreported decision of NT Court of
    Criminal Appeal - 2 March 1988)
    Morton (1986) 23 ACR 433
    Nicholls v Bushby (unreported decision of New
    South Wales Supreme Court - 1978)
    Poyner v R (1986) 66 ALR 264
    R v Anzac (1987) 50 NTR 6
    R v Cox (1972) Qld R 125
    R v Holder (1983) 3 NSWLR 245
    R v Holder and Johnston (1983) 13 A Crim R 375
    R v Ireland (1978) 49 NTR 10
    R v Lawrence and Ors (1980) 32 ALR 72
    R v Page (unreported Victorian Court of Criminal Appeal
    quoted Willis in ANZ Journal of Criminology September 1985)
    R v Tait (1979) 24 ALR 473
    Ross (1983) 5 CAR(S) 318
    Scanlon (unreported decision of NT Court of
    Criminal Appeal - 20 November 1989)
    Schumacher v R (1981) 3 A Crim R 441
    Yardley v Betts (1979) 22 SASR 108
  Cases distinguished:
    R v Gray (1977) VR 225
    R v Shannon (1979) 21 SASR 442
  Cases not followed:
    R v Harman (1989) 1 Qd R 414
    R v Pickett (1986) 2 Qd R 441

HRNG
DARWIN
#DATE 3:11:1989
  Counsel for the Appellant:     W.J. Karczewski
  Solicitors for the Respondent: Solicitor for the NT
  Counsel for the Respondent:    S. Cox
  Solicitors for the Respondent: North Australian Aboriginal
                                 Legal Aid Service

ORDER
  The Court orders that:
  The appeal is allowed.
  The respondent be sentenced to 7 years gaol with a non-parole period of 3
years and 3 months.

JUDGE1
  This is an appeal by the Crown on the grounds that both the head sentence
and the non-parole period imposed by the learned trial judge were manifestly
inadequate.
2.  The respondent pleaded guilty to one count of what I will refer to for
convenience as rape, for that is what it is, although the offence is not known
by that name in the Criminal Code of the Northern Territory.  By s.192(1) a
person who assaults another with intent to have carnal knowledge is guilty of
a crime and is liable to imprisonment for 7 years.  By s.192(4) if he thereby
has carnal knowledge he is liable to be imprisoned for life.  The respondent's
plea was to the charge that on 16 January 1988 at Alice Springs he unlawfully
assaulted the prosecutrix with intent to have carnal knowledge and thereby had
carnal knowledge of her.
3.  The sentence of the Court was that the respondent be imprisoned for 4
years and 9 months with a non-parole period of 2 years.
4.  The facts as found by the learned trial judge were that on the 16th day of
January 1988 the respondent, who had been drinking, approached the victim with
a request that she drive him to an Aboriginal camp.  She agreed to do so but
when she reached the Stuart Highway the respondent on various pretexts
directed her to certain dirt roads off the highway.  The victim at first
complied, but became apprehensive at these changes from his original request,
and finally told him she was not prepared to drive him any further.  She
alighted from her vehicle to engage the front hubs on her four-wheel drive
Toyota as there were some sandy areas in the vicinity.  The respondent then
approached her from behind, grabbed her and dragged her a number of metres
from the vehicle.  A struggle ensued during which she lost her shoes and
sunglasses.  She tried to attract the attention of the occupants in a car
which happened to pass by and she screamed hysterically to no avail.  The
presence of the other vehicle did, however, distract the respondent's
attention momentarily, and the prosecutrix managed to break free and run
towards her vehicle.  The respondent ran after her and there was a further
struggle, in the course of which the respondent pulled the ignition keys from
the vehicle and discarded them in a creek bed.  He then forced her to the
ground, forceably removed her briefs, raised up her dress and had sexual
intercourse with her against her will. During the assault the victim was
screaming and struggling and the respondent punched her twice in the mouth,
twice in the sides of her face and once in the chest.  Her efforts to attract
the attention of passing trail bike riders were unsuccessful, but shortly
after the rape, three adults in a four wheel drive vehicle came by, and the
victim ran to them and immediately complained of the rape.  The respondent ran
from the scene.  The people in the vehicle took the victim to the Alice
Springs Police Station where she reported the matter.  The respondent was
interviewed the following day and made full and frank admissions in relation
to the offence.
5.  As a result of the assault the victim suffered a swollen and bruised top
lip, a swollen face, sore jaw and scratchings and abrasions to various parts
of her body.  As so often in these cases, however, her physical injuries were
relatively minor compared to the grave psychological damage inflicted upon
her.  She was a 38 year old single woman who has since suffered a range of
psychological symptoms including chronic insomnia, depression, nightmares and
a considerable level of mental and emotional distress.  There has, apparently,
been some abatement of these symptoms, but it would be surprising if she has
yet fully recovered. Certainly her career prospects were jeopardised to some
extent, since part of her duties involved taking field trips throughout parts
of the Territory, and one can well understand that she no longer felt
confident to do this. However, the Crown Prosecutor informed the learned trial
Judge, and he accepted, that she was now going on field trips in the Darwin
area where she is presently based.
6.  The learned trial Judge noted that the respondent had two prior
convictions (both in 1987) for exceeding .08%. I note that the blood alcohol
level on both these occasions was very high (.25% on the first and .3% on the
second). He noted, further, that in January 1986 the respondent had been
convicted of an aggravated assault and sentenced to 6 months imprisonment, to
be released after 2 months on entering into a bond to be of good behaviour for
12 months.
7.  Counsel on behalf of the respondent adduced evidence from a psychiatrist
who had examined the respondent and who, in the course of his evidence,
referred to a report from the Alice Springs Hospital and to a report from a
consulting psychologist who had undertaken a psychological assessment of the
respondent. These reports were admitted without objection from the Crown.
8.  The Hospital report noted that the respondent had been admitted to the
hospital in November 1986 complaining of disorientation, sore eyes and a
belief that someone was trying to kill him.  A past history of heavy alcohol
consumption and petrol sniffing was noted (although the latter seems to have
ceased a long time ago - probably about 1971 - see psychologist report).  He
was treated for alcoholic hallucinations and bronchitis and remained for three
days.  A few days later he returned to the hospital and was treated initially
for psychoses but was later placed on anti-depressant tablets with some
success.  He became increasingly anxious to leave and physically threatening
to the staff.  He was discharged on 1 December 1986.
9.  An earlier incident in September 1986 was noted when he was brought to the
Outpatients reception by the Police.  He was found to be hyperventilating but
physically well, apart from a wound on his forearm.  He was sedated on this
occasion and taken back to the Police Station.
10.  The conclusions in the psychological report were reached after various
tests were administered and the conclusions are these:-
    CONCLUSIONS
    "The test and interview data
    suggests that while David Dixon (Jabaltjari)
    has a history of alcohol and substance abuse
    and a report of recent head injury, there are
    no signs of organic damage to be found now.
    There are also past reports of associated
    bizarre behaviour and possible hallucinations
    which, at the time were thought to be
    psychotic.  Such experiences are common in
    chronic alcohol abusers and may have been of
    that type.
    His test performance was sound but not fast and
    indicated that he is probably below average for
    his age group on measured intelligence.
    Since being charged with this offence, he seems
    to have changed his ways and says he is not
    drinking alcohol at all.  He expressed sincere
    affection for his wife and daughters and says
    that he has to stop all that 'stupid behaviour'
    because he has 'family responsibilities'.
    He reports he is now living with his wife and
    her family which would no doubt provide him
    with greater restraints and control.
    If he maintains his alcohol-free lifestyle, he
    should be able to steer clear of this sort of
    trouble again as it was clearly carried out in
    a state of disinhibition brought about by
    excessive intake of alcohol."
11.  The psychologist also noted what I think can be fairly described as signs
of remorse, and that "he seemed to be genuine in his desire to mend his ways".
The psychologist reported the respondent's understanding that he committed the
offence while he was drunk and would not have done it had he not been drunk.
The respondent subsequently told the psychiatrist that he desired to give up
drink and return to his family.
12.  The psychiatrist confirmed that the respondent seemed deeply ashamed of
what he had done.  He was asked whether a combination of impaired intellectual
facilities together with the ingestion of a lot of alcohol contributed to the
offence.  He said, "I'm not sure that represents a total explanation for the
occurrence of the offence, but I would certainly say that those factors made a
contribution". The psychiatrist expressed the opinion "I would not describe
him as being actually retarded, but he's close to it".  He could not see signs
of psychiatric disorder, although "he gives a convincing description of grog
shakes and accompanying hallucinations ... but that passes off relatively
quickly".
13.  In sentencing the respondent the learned trial Judge set out the details
of the offence and noted that the respondent had, on the day after the
offence, given a record of interview in which had made "full and frank
admissions".
14.  His Honour continued:-
    "The record of interview
    indicates a clear account of the events in
    which you were involved and it accords with the
    general allegations made against
    you.  The significance of this is whatever
    liquor you may have consumed previously, was
    not sufficient to blur out your recollection of
    these events because it is apparent from the
    record of interview that you had a complete
    comprehension of the events and a recollection of them.
    In short, you simply assaulted and raped your
    victim in response to her preparedness to do
    you a good turn by agreeing to take you to your
    vehicle. This may or may not have been a
    pretext on your part, but the fact remains is
    that by your telling her to go along a dirt
    track in a relatively isolated spot in the
    bush, you did rely upon some sort of pretext to
    give effect to your lustful desires.
    Your conduct was a combination of low cunning
    and deliberation, and a total disregard for the
    person you assaulted and raped."
15.  His Honour then referred to the injuries both physical and psychological
inflicted on the victim.  He referred to the respondent's past convictions
noting that his background history included a previous conviction for assault
for which he had been sentenced to a term of imprisonment.
16.  His Honour referred to the medical background of the respondent setting
out in detail the matters I have already referred to.
17.  His Honour also said this:-
    "I take into account that you
    co-operated with the police, that you have a
    fairly lucid account of your involvement in
    this offence and made complete admissions when
    spoken to by them.  I also take into account
    your demonstration of remorse which is
    associated both with your pleas - plea of guilty
    and the shame which you have demonstrated
    particularly in your inability to associate now
    properly in your family relationship and to use
    the words submitted to me 'I can't look at my
    family'."
18.  Finally, after referring again to the evidence of the psychiatrist, His
Honour said:-
    "I add to that of course the
    fact that was urged upon me by your counsel
    that shame still persists in you and you have a
    recognition of the dreadful offence - the crime
    you have committed.  I take into account that
    you are intellectually impaired and the other
    matters referred to in the evidence of Dr
    Walton.  I was asked to take into account that
    there was no very serious physical violence
    carried out and to the extent that by some
    standards it is perhaps on the lower end of the
    scale, nonetheless, you resorted to actual
    violence which caused physical injury to your
    victim and I do not overlook that, but at the
    same time I do regard the assault as being in
    the lower category rather than the higher.  I
    also have regard to that fact that fortunately
    the victim has made a relatively good recovery
    from her ordeal, although there is evidence of
    persisting symptoms considering that this
    offence took place about a year ago.
    In any event the invasion of a woman's body by
    unsolicited actions on the part of any person
    must be protected by this court.  I would have
    been inclined but for your plea of guilty and
    matters personal to you to have imposed a
    penalty in the vicinity of 7 years.  I mention
    that in order to give full weight to the
    discount of the factors which I've taken into
    account.  The sentence of the court is that you
    be imprisoned for a period of 4 years and 9
    months having taken into account the period you
    have been in custody and I fix a non-parole
    period of 2 years, sentenced accordingly."
The Significance of the Plea of Guilty
19.  In the course of his submissions the learned Solicitor-General invited
this court to give guidance on what, if any, discount should be given from any
otherwise proper sentence for a plea of guilty.  If he is asking that the
Court establish quantitative guidelines to be applied as some sort of formula
in every case I would not be disposed to do so.  As was said by McInerney and
Crockett JJ. in R v Gray (1977) VR 225 at 232:
    "The sentencing judge possesses
    a discretion of great width.  It would be
    improper to seek to define or prescribe the
    area in which that discretion is to operate.
    It is for the judge to interpret the quality
    and implications of the plea."
20.  But the question that the learned Solicitor-General was posing was more
aligned to the significance which should be given to a plea of guilty per se
i.e., in the absence of anything which the Court may take as a sign of remorse
or contrition.
21.  It is beyond question that contrition or remorse are factors which will
usually operate in the accused's favour; but not always.  The present of
remorse may be no guarantee that the prisoner will not repeat his conduct;
alternatively the factor of remorse may, in some case, be outweighed by other
factors such as the enormity of the crime or the need for retribution in the
sense adopted by Thomas - "The English Sentencing System" - 3rd Edition - p
202 of "giving wrongdoers their deserts".
22.  But there are many cases in which the plea is made not necessarily  out
of contrition or remorse.  There has been much discussion in Australia about
this question and the various decided cases are somewhat in the balance.  The
matter has been discussed at length in Courts of Criminal Appeal in New South
Wales, Victoria, South Australia and Queensland.   The best starting point is
R v Shannon (1979) 21 SASR 442 because there a Full Bench of five Judges was
assembled for the express purposes of giving a definitive ruling.  (See pp
242-3). The leading judgment was delivered by King C.J. His conclusions were
supported by Mohr J. Wells J., with whom Zelling J. agreed, also announced his
support for the conclusions of the learned Chief Justice (see p 445), but
nevertheless set forward his own conclusions which, on a careful analysis, may
not be precisely on all fours with what was said by the learned Chief Justice.
Cox J. was in dissent on certain basic issues.
23.  At p 453 King C.J. said:-
    "In my opinion this court
    should now lay down the following propositions -
    (1)   A plea of guilty may be taken into
    account in mitigation of sentence where -
        (a)   it results
        from genuine remorse, repentance or
        contrition, or
        (b)   it results
        from a willingness to co-operate in the
        administration of justice by saving the expense
        and inconvenience of a trial, or the necessity
        of witnesses giving evidence, or results from
        some other consideration which is in the public
        interest; notwithstanding that the motive, or
        one of the motives, for such co-operation may
        be a desire to earn leniency,
    and where to allow the
    plea a mitigatory effect would be conducive to
    the public purposes which the sentencing judge
    is seeking to achieve
      (2)    A plea of guilty is not
    of itself a matter of mitigation where it does
    not result from any of the above motives, but
    only from a recognition of the inevitable, or
    is entered as the means of inducing the
    prosecution not to proceed with a more serious
    charge.
      (3)    In cases falling within
    (1), the judge is not bound to make a
    reduction, but should consider the plea with
    all the other relevant factors in arriving at a
    proper sentence.
      (4)    In assessing the weight
    to be attached to a plea of guilty as a factor
    making for leniency, it is proper for the judge
    to bear in mind that it is important to the
    administration of justice that guilty persons
    should not cause expense to the public and
    delay to other cases by putting forward false
    stories and on the basis of such false stories
    contesting the charges against them.
      (5)    The above propositions
    are not to be taken as weakening in any way the
    principle that there may be no increase in the
    sentence which is appropriate to the crime
    because the offender has contested the charge."
24.  The basis for proposition (4) and 1(b) (insofar as it correlates with
(4)), is set out more fully in His Honour's reasons at pp 447 to 450.  His
Honour refers to R v Gray and draws from it the interpretation that the case
"condemns the proposition that a judge must make a reduction in the sentence
otherwise appropriate by reason of a plea of guilty but affirms that he may do
so.  It condemns the proposition that a plea of guilty is a mitigating factor
only insofar as it is evidence of genuine remorse and affirms that a reduction
is justified by facts other than remorse  "that operate in the public
interest", such as saving a prosecutrix the ordeal of giving evidence and
saving the State a lengthy and expensive trial".
25.  One would have no quarrel in taking into account the factor of saving the
prosecutrix the ordeal of giving evidence.  But I would not be prepared to
take into account, in the accused's favour, the mere fact that his plea saved
the expense of a public trial. Their Honours McInerney and Crockett JJ. in R v
Gray did not, in my view, say this so baldly; although they seem, with
respect, to have been a little ambiguous.  At p 232 they say:
    "There may be cases in which
    the only sorrow felt by him is in the fact that
    he has been detected. But, having been
    detected, he has had to do the best he can for
    himself.  Weighing the strength of a possible
    defence against the likely penalty upon
    conviction he may elect deliberately to adopt a
    course which involves a measure of public
    utility in the belief that his own ultimate
    interest is best served by doing so.  The judge
    may (not shall)
    take such circumstance into account in the
    accused's favour.  If such action be tainted
    over much by self-interest it probably will not
    avail the accused.  Professor Sir Rupert Cross
    in his book The English Sentencing System
    (1971), p 153 suggests that it is in the
    interest of the present judicial system that
    provided they are in fact guilty, accused
    persons should plead guilty.  No doubt great
    cost to the community in time, convenience and
    money is thereby saved.  However expedient this
    may be from the point of view of the executive,
    it is not a matter which requires the
    sentencing judge to reduce the sentence below
    that which he otherwise believes to be proper
    in the circumstances."
26.  Just how the Court can determine whether a plea is or is not "tainted
over much by self interest" would, in my respectful view, be difficult to
establish, where the plea is not to be regarded as evidencing remorse. There
would seem to be a heavy element of self interest in any such situation.
27.  King C.J. also referred to a passage in "Cross - The English Sentencing
System", 2nd Edition (1975) at p 105 and I note that what is said there
includes this passage:
    "From time to time suggestions
    are made that our system of criminal trials
    would break down if everyone charged with an
    offence in the Crown court would plead not
    guilty, and, in any event, the beneficial
    effect of saving the expense and inconvenience
    of a protracted and unnecessary trial is
    something which cannot be ignored.  Provided it
    is clearly understood to refer only to those
    who are guilty, moderate encouragement to plead
    is, as the Court of Appeal put it in de Haan,
    "clearly in the public interest."
King C.J. comments on this passage at p 448 in Shannon:
    "The public interest in saving
    the expense of trial has been increased by the
    pressures on the legal aid system.  The
    resources available for legal aid are severely
    strained by the number and length of criminal
    trials.  In many cases these trials and the
    consequent depletion of legal aid funds are
    brought about by guilty persons contesting
    their guilt by means of false stories.  The
    volume of criminal business has placed the
    court system under stress and has resulted in
    unfortunate delays in bringing accused persons
    to trial.  Congestion is greatly contributed to
    by offenders who put forward false stories and
    make use of legal aid in an effort to escape
    conviction.  The growth in the importance of
    these factors points, in my opinion, to the
    desirability of providing some encouragement to
    guilty persons to admit their guilt."
With respect I would agree with the comments made by Cox J. in Shannon.  He
was of the view that "the notion that a defendant should, or may, gain credit
from a plea of guilty merely because he will thereby be saving the authorities
the trouble and expense of a trial and relieving some pressure on the Court's
time", ran contrary to directions previously propounded by the South
Australian Courts in Harris (1967) SASR 316; Tiddy (1969) SASR 328; and
Rowland (1971) SASR 392.  Cox J. then observed (at p 457 in Shannon),
    "Two principles relevant to
    this subject are well established.  First, a
    convicted person is not to be given a longer
    sentence merely because he pleaded not guilty.
    There are sound policy reasons for that rule,
    and no one suggests that it should be
    disturbed.  Secondly, the court may take into
    account contrition or remorse shown by a
    defendant and manifested, perhaps, by his plea
    of guilty.  To take that principle further, on
    grounds of sheer expediency, is, in my opinion,
    undesirable.  No doubt it would be convenient,
    and save money, if all those who are guilty
    were to say so.  However, the considerations
    relevant to the question of the proper
    punishment of an offender do not include
    matters which have nothing to do with the
    nature or effect of his offence, or the
    character or antecedents or disposition of the
    offender, but relate solely to the machinery by
    which his offence is tried."
28.  Wells J. (with whom Zelling J. agreed) announced his support for the
conclusions of the Chief Justice.  Nevertheless (if I may say so with respect)
it seems to be a somewhat guarded support, in the light of his own summary of
his own views which appears at pp 454-5.  Furthermore, His Honour Wells J.
goes on to make this comment with respect to proposition 1(b) of King C.J.'s
summary:-
    "It may, however, be useful to
    emphasise with respect of sub-par. (b) of par.
    1 of those conclusions, that the willingness
    referred to that sub-paragraph may be permitted
    to have a mitigating effect,
    not where it stands in isolation, but only
    where, in all the circumstances in which it is
    found, to give it that effect would advance the
    public purpose or purposes that the sentencing
    judge is seeking to achieve."  (Emphasis added).
His Honour's reference to "public purposes" seem equated (p 455) to the
"public purposes" which His Honour had previously discussed in an earlier case
of Kear (1978) 2 Crim LJ 40. In that case, however, His Honour was discussing
no more than the classical philosophies of punishment, namely deterrence,
prevention, rehabilitation and retribution.  If His Honour is rejecting any
mitigatory effect of the plea in isolation it would be difficult, in my
respectful opinion, to fit it into one or more of those categories in the
absence of contrition.  Furthermore, when His Honour says, at p 455, that, "A
plea of guilty traditionally is taken into account and prima facie should
incline a judge to look for grounds for leniency", I take him as referring to
grounds for leniency vis-a-vis the prisoner rather than some more generalised
administrative advantages.  I do not therefore (and again with great respect)
understand him to be fully adopting paragraph 4 of King C.J.'s propositions.
29.  Not only in South Australia but in Queensland statements have been made
to the effect that a guilty plea may justify mitigation on the basis that
public cost has been saved.  For instance, in R v Pickett (1986) 2 QdR 441 at
p 444 de Jersey J. says:-
    "For my part, I consider it
    important, with the increasing length,
    complexity and cost to the public of criminal
    trials, that guilty persons when charged with
    offences be encouraged to enter honest pleas of
    guilty at the earliest possible time."
30.  The matter was discussed by the Queensland Court of Criminal Appeal in R
v Harmon (1989) 1 Qd R 414, when their Honours commented on certain remarks of
the trial Judge in that case.  Those remarks (which are set out in p 417) were
as follows:-
    "My concern arises from the
    following factors. Once it is realised that a
    person who pleads guilty will be more leniently
    treated than one who unsuccessfully pleads not
    guilty, an accused person will know that he
    faces more severe punishment upon conviction on
    a not guilty plea than on a guilty plea.  It is
    no answer to say that no-one gets any more but
    some get less.  It is the contrast between the
    two, and the existence of a relativity,
    designed to provide an incentive to plead
    guilty, that creates a danger.  If the
    difference becomes sufficiently marked some
    people who do not know whether they are guilty
    or not will end up pleading guilty."
31.  In that case the trial Judge said that he did not propose to make any
discount for what had been described as a "timely plea of guilty".  He
observed that he did not think that the accused was remorseful in the true
sense.
32.  The appellant appealed against severity of sentence.  The Court of
Criminal Appeal held that the learned trial Judge could not be shown to have
wrongly applied his discretion and dismissed the appeal.  However de Jersey
J., with whom McPherson J. agreed, took issue particularly with the trial
Judge's comment that "there is certainly a growing view that an identifiable
discount ought to be allowed for an early plea of guilty".  To that His Honour
de Jersey J. commented:
    " To my knowledge there is no
    trend in this State to allow or specify an
    'identifiable discount' in respect of such
    matters.  That is not to say that such features
    as early pleas of guilty are not generally
    recognised as being relevant to the sentencing
    process, and in an appropriate case, as
    justifying moderation for reasons such as those
    discussed in Pickett.  I consider however that
    the concept of identifiable discounts is wholly
    inappropriate."
33.  While, de Jersey J., therefore, rejects the view that there should be
some identifiable discount he otherwise adheres to the view he had stated in
Pickett, and he had the support of McPherson J. in that respect.  Andrews C.J.
was somewhat more circumspect.  At p 419 he says:-
    "I would add that I can see no
    reason why sentencing authorities should not
    emphasize that there is relevance in timely
    co-operation by persons guilty of offences
    provided that care in expression is taken to
    ensure the understanding that there is no
    system of discounting whether precise or
    otherwise in force, and that there are numerous
    circumstances to be taken into account in the
    exercise of what is, after all, a necessarily
    wide discretion."
34.  In Victoria (until the enactment of the Penalties and Sentences Act
(1985) and in New South Wales there seems to have been a rejection of any view
that mitigation can be based on some pragmatic approach that a plea of guilty
saves public expense.  In New South Wales it seems open to the Court to give a
wide and generous interpretation to the concept of contrition, often by
accepting the plea of guilty itself as evidence of contrition. Without being
overly cynical, it is probably fair to say that there is far less real
contrition than Judges would persuade themselves of; and I have no doubt that
Judges know this, but err on the side of generosity. The difference between
being sorry for what one has done and sorry for being caught is a difference
which Judges may not always wish to investigate too thoroughly.  In R v Holder
(1983) 3 NSWLR 245 at 258 Street C.J. says:
    "It has been said repeatedly in
    judgments of this court that guilty persons are
    to be encouraged to plead guilty and courts
    will not be slow to identify elements of
    contrition as inhering in the proffering of a
    plea of guilty.  All accused persons can
    ordinarily expect to receive the benefit of
    some credit in the matter of sentence (and for
    that matter in the non-parole period also) when
    proffering a plea of guilty.  In order,
    however, that the criminal law may not present
    the appearance of dealing more harshly than
    would properly be the case with a person who,
    after pleading not guilty, is convicted by a
    jury, the relevance of a plea of guilty as a
    factor pointing towards leniency in sentence is
    subsumed under the general category of contrition."
However, His Honour does go on to say that:-
    "In every case the genuineness
    of the contrition and the time and manner in
    which it is manifested in association with the
    plea of guilty will require evaluation by the
    sentencing judge in the light of the overall
    complex of the facts before the court."
35.  In R v Lawrence (1980) 32 ALR 72 at 107-8 Moffitt P, while emphasizing
that "a less sentence cannot be brought by a plea of guilty", went on to say
that:-
    "In some cases contrition may
    be seen from confessing as a desire to mitigate
    the crime and not subject the State to the
    expense of a trial and from making a full
    revelation of what has happened and doing what
    can be done to right the crime."
36.  I do not take His Honour as suggesting there that a plea of guilty can
mitigate merely because it saves expense and time, but only if accompanied by
some circumstances of contrition or, as His Honour says, earlier:
    "A plea of guilty may result in
    a less sentence but this is only by reason of
    what may be inferred in all the circumstances
    concerning the prisoner's subjective intention
    and reaction to the crime he has committed."
37.  In R v Page (an unreported decision of the Victorian Court of Criminal
Appeal quoted by Willis in ANZ Journal of Criminology, September 1985, p 131)
Young C.J. delivering the judgment of the Court said:
     "The only real relevance in my
    view of a plea of guilty is if it is indicative
    of remorse, although I am aware that the court
    has from time to time said that there may also
    be taken into account that it may save the
    community substantial time and money by
    avoiding a lengthy trial".
38.  As Willis points out the judgment in Page was decided after the judgment
in Gray.
39.  However, in Victoria, the position has now been changed by the Penalties
and Sentences Act 1985. S.4(1) of that Act provides that:
    "A court in passing sentence
    for an offence on a person who pleaded guilty
    to the offence may take into account in fixing
    the sentence the fact that the person pleaded guilty."
40.  In Morton (1986) 23 ACR 433 at 437 the Victorian Court of Criminal Appeal
interpreted s.4 as meaning that:
    "A court may always take a plea
    of guilty into account in mitigation of
    sentence even though it is solely motivated by
    self interest ... ."
and observed at p 438 that Parliament had by this legislation indicated that
"encouragement is to be given to pleas of guilty".
41.  Some Judges would limit the enquiry to determining whether genuine
remorse was shown. See, for instance, the remarks of Hanger C.J. (with whom
Skerman and Hart JJ. agreed), in R v Cox (1972) Qd R 125-6 where His Honour
says:-
    "I think that it is the
    indication of genuine remorse which is the
    substance of the matter.  This is not always
    necessarily shown by a plea of guilty."
42.  For those who would wish to go somewhat further than accepting only
"genuine" remorse, the schools divide between those who would still
concentrate on the question of remorse but are prepared to treat the plea of
guilty as at least prima facie evidence of that; and those taking the more
pragmatic view that, normally some encouragement should be given to saving the
community time and expense.  Neither approach is satisfactory in strict logic.
One is procrustean semantics; the other is administrative opportunism.
43.  Of course, it is not suggested (at least in Australia) that a Judge is
bound to mitigate for a plea of guilty.  See Schumacher (1981) 3 ACR 441,
where Blackburn J., while adopting the views of King C.J. in Shannon, comments
that all the judgments there included "a rejection of the view that a plea of
guilty entails, or invariably requires, a reduction in the severity of the
sentence".
The Sentencing Dilemma
44.  Several judges, notably King C.J. in Shannon, have grappled with the
problem that if a person whom the law presumes innocent, exercises his
undoubted right to test the prosecution's case by pleading not guilty, should
he be in any worse position, at the conclusion of the trial, if he is found
guilty, than if he had pleaded guilty at a much earlier stage?  Or, to put it
in a cruder form, can the court differentiate between an "honest" plea of "Not
Guilty", and a "dishonest" one; and, if so, how?
45.  This difficulty has been commented upon by writers on the subject.  For
instance Willis in "The Sentencing Discount for Guilty Pleas" ANZ Journal of
Criminology (September 1985) pp 131-146 says at p 137:
    "This reluctance to make clear
    pronouncements on such an important issue, no
    doubt stems in large measure from the
    difficulties appellate courts have
    felt in reconciling the essentially pragmatic
    convenience of allowing discounts for guilty
    pleas with such basic and traditional
    principles as the presumption of innocence, the
    right to trial and requirement that the
    defendant's plea be voluntary."
46.  Sallmann in "The Guilty Plea as an Element in Sentencing" 1980 54 LIJ
105-112, 185-189, illustrates the differing view points by reference to two
letters in The Times newspaper written in February 1976.  In the first
Professor Glanville Williams writes:
    "Although the courts say that
    they give the discount for the plea, and do not
    increase the sentence because the defendant
    fights the case, this is only a verbal point:
    the substance is that an offender gets a
    steeper sentence merely because he defends
    himself - yet the discount is a necessity,
    because offenders who have no defence must be
    persuaded not to waste the time of the court
    and public money."
In reply Professor Gordon Trasler pointed to the:-
    "central principle of our
    system of criminal trials that an accused
    person is entitled to challenge the coherence
    of the case laid against him ... in entering
    this plea the accused is not claiming
    innocence; he is calling in question the
    adequacy of the evidence, and it is clearly in
    the general interest that he should do so ...
    to the people at large ... may be content to
    pay a price for the assurance that others will
    not be convicted upon inadequate evidence."
Sallman comments that:
    "The courts are, perhaps
    understandably, very reticent to make a clear
    statement on the issue. They are prepared to
    say that a not guilty plea
    should not involve a harsher sentence than
    would otherwise be justified, but they are not
    prepared to be explicit by taking the further
    logical step of saying that there is a
    difference for sentencing purposes between the
    two types of plea.  It may well be that they
    are not prepared to take this further step
    because to do so involves running headlong into
    the cherished principle of a free and open
    choice of plea."
47.  A Canadian writer, Clayton C. Ruby in "Sentencing", 3rd Edition (1987) at
p 176 finds the same difficulties prevailing in Canada, and takes the rather
gloomy view that "the problem, perhaps, remains insoluble".
48.  Nevertheless, I would reject the pragmatic view that a plea of guilty can
justify mitigation on the sole basis that there is a saving of court time and
public expense. If adopted at all, this would seem to become no more than a
disguised form of plea bargaining, with undue pressure put upon the accused to
plead guilty.  Furthermore it seems to be a counsel of despair brought about
by circumstances not relevant to the individual. In an article "Court
Involvement in Pre-Trial Procedures" (1987) 61 ALJ 471 at 477, Pincus J.,
commenting on the growth of legal aid, takes the view that the congestion in
the court system does not stem from a bad cause but rather from a good one.
That is, that the availability of legal aid allows more persons to exercise
that right which the law gives them to insist upon their right to trial and to
insist upon the prosecution proving its case against them.  The evil is not,
therefore, in the growth of legal aid, but rather in the inadequacy of court
resources to meet that growth.  His Honour was concerned about what he saw as
"the evolving rule as to rewards for pleading guilty in criminal cases." His
Honour went on to say:
    "What has happened in
    consequence has been a rather disturbing
    development.  In my respectful opinion, people
    are being punished for insisting on a trial, at
    least in the sense that they may receive a
    longer sentence if they plead not guilty than
    they would if they pleaded guilty.  It is true
    that the cases which justify this practice put
    it the other way around: they say the convicted
    person may serve less time if he pleads guilty,
    but of course it comes to the same thing.  That
    'fundamental ... bulwark of liberty', the
    privilege against self incrimination, looks a
    little less solid if the law is that one may be
    encouraged to admit guilt by the possibility of
    spending more time in gaol as a punishment for
    failing to do so."
49.  Willis, in the article already referred to, mentions the "ironic but
telling comment" of Cox J. in Shannon at pp 458-9 that
    "He (the defendant pleading not
    guilty but found guilty) will need a very
    subtle mind, unusually sympathetic to the way
    of the law, if he is to understand that he is
    going to prison for a longer term, not because
    he pleaded not guilty, but because he failed to
    plead guilty."
50.  It is interesting to note the robust approach of the English courts which
seem to have happily solved the philosophical problem by ignoring it.  This
seems to stem from De Haan (1967) 52 CAR 25 at 27 where Edmund Davies L.J.,
delivering the judgment of the Court of Appeal (Criminal Division) says
simply:-
    "If, as is undoubtedly right, a
    confession of guilty should tell in favour of
    an accused person, that is clearly in the
    public interest."
51.  That statement is somewhat qualified by Lawton L.J. delivering the
judgment of the Court in Davis (1980) 2 CAR(S) 168 at 170:-
    "It is a principle of
    sentencing that whenever possible the court
    should take into account as a mitigating factor
    the fact that the accused have pleaded guilty.
    The extent to which it is a mitigating factor
    must depend on the facts of each case."
52.  Those remarks were adopted and given significant effect in Ross (1983) 5
CAR(S) 318 where the Court, consisting of May L.J. and Park and Peter Pain
JJ., in circumstances where one accused had pleaded guilty and the other not
guilty but had been convicted, and where both had received a 15 months
sentence, reduced the sentence of the accused who had pleaded guilty to 9
months.
53.  The position in England, indeed, seems to have been now accepted to the
extent that Thomas - Principles of Sentencing (2nd Edition) p 52 can say:-
    "These cases suggest that a
    mere plea of guilty without any further
    mitigation may justify a reduction of sentence
    of between one quarter and
    one third of the nett figures established by
    reference to the facts of the offence."
54.  See also the commentary on Ross in (1984) Crim LR 53 that "the discount
was more generous than usual at 40 per cent".
55.  This approach has not found favour with the more logical Scots. C.G.B.
Nicholson - "The Law and Practice of Sentencing in Scotland" (quoted in 1983
Crim LR 298) comments disapprovingly:-
    "... in England there appears
    to be a well established practice approved by
    the Court of Appeal, of allowing, where there
    is a plea of guilty, a discount from what would
    otherwise be an appropriate sentence ... (in
    Scotland) if any mitigation is to be found in
    cases where a plea of guilty is tendered, it
    must be found in factors which are mitigating
    in themselves and not in the mere fact of a
    plea of guilty ... it would be quite
    unacceptable that, in a legal system which
    presumes innocence and which permits every
    person to go to trial, a person who was found
    guilty after trial should be punished more
    severely simply because he had not pled guilty."
56.  Despite the temptation to adopt the deceptively simple English approach,
I consider that this Court cannot avoid the problem in this way, now that it
is being increasingly recognised in Australia.  While there is probably no
perfect solution I am convinced that no argument based on administrative
convenience should be acceptable and the emphasis should remain on factors
"mitigating in themselves", or to use the expression employed by their Honours
in R v Lawrence (1980) 32 ALR 72 at 108 and 147, factors "subjective to the
prisoner".
57.  In this context it may be that a substantial factor persuading a court to
mitigate a sentence on a plea of guilty has not been fully explored, though it
has obviously had a considerable influence in many cases. This is a factor
which Cross J. of the Supreme Court of New South Wales in an unreported
decision of Nicholls v Bushby (1978) (referred to by Moffitt P. in R v
Lawrence (1980) 32 ALR 72 at 108) has called "rescipiscence", which the Oxford
English Dictionary translates as "recognition of errors committed".  The
remarks of Cross J. are these:-
    "Though of course an increase
    in an otherwise appropriate penalty can never
    be justified on the basis that the prisoner has
    pleaded not guilty (see R v Regan (1959) Crim
    LR 529; R v Harper (1968) Cr App R 21), it is
    trite law that an otherwise appropriate
    sentence may justifiably be reduced by a plea
    of guilty insofar as that plea demonstrates
    rescipiscence, saves the State the cost of a
    lengthy trial or avoids subjecting the victim
    -particularly children and women who have been
    the subject of sexual assaults - from the
    embarrassment and humiliation of giving
    evidence in open court (see R v de Haan (1968)
    Cr App R 25)."
58.  Cross J., of course, puts rescipiscence as only one of the factors, but
it is worth looking at in isolation. Should not some favourable consideration
be given to a person who, while not showing remorse, at least shows sufficient
maturity to acknowledge that he has done wrong and acknowledge that he should
be punished.  From a rehabilitation point of view it could be argued that a
person showing that degree of realism may be some steps along the road, if not
to repentance, at least to a degree of self control which may argue a more
disciplined attitude in the future. Conversely, it could be suggested that
considerable harm would be done if it were known that this sort of realistic
self appraisal would gain no consideration from the court.
59.  Of course, one could not push this concept too far. Obviously there will
be cases where the prior history and attitude of the offender, and the
circumstances of the offence will indicate no real prospect of rehabilitation.
One is reminded of Saki's story "Canossa" where the accused, a popular
anarchist,
    "not only pleaded guilty (to
    burning down the Albert Hall) but expressed his
    intention of repeating his escapade as soon as
    circumstances permitted; throughout the trial
    he was busy examining a small model of the Free
    Trade Hall in Manchester."
But a candid recognition of wrongdoing and a preparedness to face the
consequences, absent mere bravado or hypocrisy, seems to be well within the
meaning of the phrase used by de Jersey J., "an honest plea of guilty".
60.  The rationale for taking into account a plea of guilty should therefore
concentrate upon the individual and, unless outweighed by other factors,
should operate favourably to the individual if true remorse is shown, or
circumstances from which, from a realistic point of view, remorse may be
inferred; or because the plea represents a realistic appraisal by the accused
that he knows that he has done wrong and must be punished, and therefore
exhibits prospects of rehabilitation through self knowledge, i.e., "an honest
plea of guilty".  In my view most pleas of guilty could be placed in one or
other of these categories (and often in both) and it is neither necessary nor
desirable to accept that a plea of guilty will lead to mitigation if that
mitigation is only on the basis that the courts will be spared expense and
will function more efficiently.  The fact that witnesses, particularly
witnesses in sexual cases, may be spared the humiliation of giving evidence
can, I think, be placed under the broad category of contrition, as a
recognition that suffering has already been caused and should not be
continued.
61.  It is this concentration on the individual which can then rationally
explain why a person who pleads "not guilty", but is found guilty, may very
well face a sentence greater than that imposed upon a person who pleads guilty
to the same offence but who can demonstrate, by his plea, remorse or self
realisation or both.  I see no reason why this should not be said quite
plainly.  When it is said that there should be no increase in the penalty when
a person who pleads "not guilty" is convicted, it should be made quite clear
that what will not be increased is the "objective" sentence (as to which see R
v Ireland (1978) 49 NTR 10 at p 22-23 per Nader J.).  I can see no reason why
a person who chooses to plead "not guilty" should not clearly understand that
he runs a risk, if found guilty, that he may be deprived of certain mitigating
factors upon which he could have relied if he pleaded guilty.  Nor do I see
any injustice or unfairness in the position. If his defence involves a
complete denial of the offence for which he is charged, and if nevertheless it
is established beyond reasonable doubt that he committed it, the obvious
comment would normally be that he has shown no remorse or self-realisation and
he should get no consideration for those factors; though the objective
sentence will not be increased.  Of course his defence may not be of that
nature. It may be based on a question of interpretation or a submission of
lack of evidence.  If that fails there may still be room for the Court to find
mitigating circumstances.  Even in a case fully contested on its merits, some
circumstances of mitigation may appear; but they will not normally be based on
contrition or rescipiscence.  The point is that, however he pleads, the
Court's attention ultimately must focus on the factors personal to him in
determining whether to mitigate the objective sentence.  It should not focus
on whether he has or has not saved the community trouble or expense.
62.  No doubt it may be said that this is mere casuistry and does not meet the
objection that a person who has or believes he has a good defence may still
feel under pressure to plead guilty.  All that one can answer is that no
system yet devised can prevent that, and it is unrealistic and hypocritical to
deny that this sort of pressure occurs.  But at least the pressure is not
increased by suggesting possible rewards for contributing to administrative
efficiency.
63.  The question asked by the learned Solicitor-General as to what, if any,
discount should be given from an otherwise proper sentence for a plea of
guilty cannot therefore, and in my view should not, be answered other than in
general terms.  However, insofar as guidelines rather than formulae are
sought, (as to which see the remarks of Mason and Deane JJ. in Norbis v Norbis
(1986) 161 CLR 513 at 519), I see no difficulty in stating that, provided the
sort of factors already mentioned exist which may legitimately be taken into
account on a plea of guilty, there will usually be some and often a
substantial reduction from the objective sentence.  But because the
circumstances vary widely it would be wrong and unduly restrictive of a
sentencing judge's discretion to fix on any specific percentage reduction even
as an average; nor has any other State or Federal Court attempted such an
exercise.
Should there be a higher "Benchmark" for this offence?
64.  We have also been invited by the learned Solicitor-General to establish
"a higher benchmark for this serious and prevalent offence".  No-one doubts
the seriousness of the offence.  But no evidence has been placed before us as
to how prevalent it now is, compared to, say, 5, 10 or 20 years ago; or
whether, if an increase in reported rapes or sexual offences is shown, that
demonstrates a real increase in the incidence of such offences rather than an
increase in reporting of such offences brought about by the greater
encouragement of victims to come forward; or whether an "across the board"
imposition of higher penalties for all these types of offences will decrease
their incidence.  This court should not take such a drastic step as that
suggested, which might improperly bind the sentencing discretion of judges or
magistrates, without much more convincing proof of its desirability; and
certainly not on an unsupported generalised statement that a particular
offence is prevalent.  Indeed there is much to be said for the argument that
an overall increase in penalty for a particular type of offence is a matter
for the legislature rather than the courts.
65.  In fixing maximum rather than minimum penalties for various offences the
legislature properly recognise the vast range of criminality involved
extending from the most extenuating circumstances to the most callous and
reprehensible actions; and leaves it to the courts to find the punishment to
fit the crime. It is not for appeal courts, therefore, to indulge in
self-denying ordinances which overly inhibit the broad discretion given by the
legislature.  That is not to say that appeal courts will not adjust sentences
which are out of phase with sentences normally given in similar circumstances.
That is to prevent injustice either to the accused or the community caused by
a misapplication of the discretion invested in an individual judge or
magistrate.  Reference to "tariffs" is designed to allow some reasonable
continuity and predictability in the sentencing process.  But appeal courts
have always been careful to emphasise that the system should not be applied
too rigidly and should allow for the exceptional case.  No doubt, as precedent
builds on precedent, and new factors come to be recognised as having a bearing
on a particular offence or the circumstances in which it is committed, the
"tariff" for that offence or those circumstances will gradually change either
upwards or downwards; and an appeal court may be asked to recognise the change
and give appropriate rulings.  But this is a very different thing from asking
an appeal court in an individual case to disturb existing guidelines on a
dubiously ad hoc basis.
Is the Sentence in this case manifestly inadequate?
66.  Applying the principles discussed above to the present case it is clear
that there is no difficulty here in accepting the plea of guilty as being
properly based on contrition. The learned trial judge accepted that, and there
is evidence from both the psychiatrist and psychologist to support it.  Nor
does the Crown submit that His Honour should not have taken that into account.
Leaving aside the more general matters raised by the Crown and which I have
already discussed, the Crown submits that in the circumstances of this
particular case the head sentence of 4 years and 9 months was too low.  No
doubt it follows, if the head sentence is to be increased, that consideration
should be given to increasing the non-parole period.
67.  It is clear, from the passages I have earlier cited from his judgment,
that the learned trial Judge cannot be shown to have acted on a wrong
principle, given weight to extraneous or irrelevant matters, failed to give
weight or sufficient weight to relevant considerations or made a mistake as to
the facts.  Indeed, if I may say so, His Honour most carefully took all proper
matters into account. It follows that the Crown must rely on the last of the
tests propounded by Kitto J. in Australian Coal and Shale Employees Federation
v The Commonwealth (1953) 94 CLR 621 at 627 that while the nature of the error
may not be discoverable the result is so unreasonable or plainly unjust (or in
this case that the sentence is so manifestly inadequate) that the appellate
court may infer that there has been a failure properly to exercise the
discretion which the law reposes in the court of first instance.
68.  Although I would be disposed to think that the sentence is very much at
the lowest end of the scale of what would be adequate, I am unable to hold
that the Crown has established that it is manifestly inadequate. As I
understand it, the Crown attack on the sentence is basically on the "objective
sentence" of 7 years which His Honour mentions at the end of his sentencing
remarks.  The Crown's submission is that in the circumstances of this case
that was too low.  I would, myself, have thought that an objective sentence of
10 years was more appropriate; but that of course is not the test, and merely
illustrates that individual differences are not sufficient to override the
discretion of the trial judge. I am unable to say that the views of the
learned and experienced trial judge were so far a deviation from an
appropriate sentence that an error in his sentencing discretion has occurred.
Having fixed on the objective sentence His Honour then made appropriate
adjustments downward to give effect to the mitigating circumstances personal
to the respondent.  I do not think it can be seriously argued that some
reduction was not appropriate having regard to the real contrition displayed
by the respondent, his immediate confession, his deprived background and his
very limited intellectual capacity. Indeed it may well have been the case that
another judge may have fixed a somewhat higher objective sentence but with a
somewhat larger reduction and achieved much the same sentence as the learned
trial judge; thereby illustrating the importance of allowing a broad range of
discretion in the trial judge. Particularly in the light of the sentencing
examples carefully collected by Martin J. in his judgment, I cannot conclude
that in all the circumstances the sentence, including the non-parole period,
was so manifestly inadequate as to point to a failure properly to apply the
sentencing discretion.
69.  I would dismiss the appeal.

JUDGE2
  The Attorney-General appeals against the sentence imposed upon the
respondent, upon the grounds that both the head sentence and non-parole period
imposed were each, in all the circumstances, manifestly inadequate.  No
specific error is assigned to the learned sentencing Judge.
2.  The respondent was convicted on 17 February 1989, upon his plea of guilty,
for that on 16 January 1988 he unlawfully assaulted a woman with intent to
have carnal knowledge of her, and thereby had carnal knowledge of her,
contrary to section 192(1) and (4) of the Criminal Code. The maximum penalty
is imprisonment for life.  The respondent was sentenced to imprisonment for a
period of 4 years and 9 months, and a non-parole period of 2 years was fixed.
His Honour took into account the respondent's periods in custody in relation
to the offence, prior to his being bailed, and after execution of a warrant
for his arrest for failure to attend before the Court when required. In all,
that period amounted to 66 days, or a little over 2 months.
3.  On the day of the offence the respondent commenced drinking alcohol at a
camp near Alice Springs.  At about 4 pm on that day the prosecutrix, an
anthropologist, attended at the camp in the course of her employment, and he
requested her to convey him to another camp in the Charles Creek area.  The
prosecutrix agreed, but at his request she diverted from the Highway leading
to Charles Creek, into a more remote area.  The respondent prevailed upon her
to do that by telling her that his car had broken down in the area and that a
baby girl was in it.  Becoming apprehensive, the prosecutrix stopped with a
view to engaging the front hubs on the four-wheel drive vehicle because of
sandy conditions, and told him she was not prepared to drive him any further.
He then attacked her, dragging her some metres away from the vehicle; she
resisted, managed to break free, and ran towards a vehicle passing nearby.  He
pursued her, removed the keys from the ignition of her vehicle and threw them
away, then forced her to the ground, removed her briefs, raised her dress and
proceeded to have non-consensual vaginal intercourse with her.
4.  During the assault the prosecutrix was screaming and struggling and the
respondent punched her a number of times in the head and body.  Shortly after
the rape another vehicle came by, the prosecutrix ran immediately to it and
made a complaint to the occupants, who then took her to the Alice Springs
Police Station where she reported the matter.
5.  The police spoke to the respondent the following day when he made full and
frank admissions of his involvement.  His Honour remarked that whatever liquor
he may have consumed prior to committing the offence was not sufficient to
blur his comprehension or recollection of the events.
6.  In His Honour's words, the respondent simply assaulted and raped the
victim in response to her preparedness to do him a good turn by agreeing to
take him to his vehicle and "Your conduct was a combination of low cunning and
deliberation, and a total disregard for the person you assaulted and raped."
7.  It is plain that the respondent had no reason to think that he was being
encouraged in any way by the prosecutrix.  She drove into the remote area at
his request, no doubt thinking that she was doing him a good turn.
8.  As a result of the assault, she suffered a swollen and bruised upper lip,
swollen face, sore jaw and scratches and abrasions to her body.  His Honour
regarded the assault, by which I take him to mean the assault preceding the
act of sexual intercourse, as being in the "lower category, rather than the
higher".  In addition to the bodily harm she has suffered a range of
psychological trauma arising from the attack upon her, including chronic
insomnia, depression, nightmares and a considerable level of mental and
emotional distress.  Those symptoms had abated somewhat by the time of the
conviction and sentence.  Her career prospects were jeopardized to some extent
in that she no longer felt comfortable going on field trips in Central
Australia.  She had transferred to Darwin in the meantime and was engaging in
that type of work in that area.
9.  At the time of the offence the respondent was aged 23.  A psychiatrist
gave evidence on his behalf to the effect that although he was not suffering
from brain damage, he was intellectually impaired possibly arising from
"alcohol, petrol, multiple head injuries or syphilis".  The Doctor considered
him to be dull, though not retarded, and recognised him to be substantially
impaired in general literacy, numeracy and social abilities.  There was other
evidence to support the Doctor's opinion so far as it is based upon the
respondent having a history of heavy alcohol consumption, past petrol
sniffing, head injury and poor educational backgrounds.
10.  The respondent had been previously convicted for driving whilst having a
blood alcohol level in excess of the prescribed limit for which he had been
imprisoned, and for aggravated assault for which he was ordered to be
imprisoned for 6 months, but to be released after 2 months on entering into a
good behaviour bond under supervision for 12 months.
11.  A married man with two children, it appeared that the respondent had
given up alcohol after the offence and, when not in custody, was living with
them, not without some difficulty because of his shame for what he had done.
12.  His Honour also remarked "You pleaded guilty from the very outset so far
as the general conduct of the proceedings were concerned and I allow
substantial discount by adopting that course from committal to the present
entry of plea yesterday.  It demonstrates remorse in a practical legal sense.
I add to that of course the fact that was urged upon me by your counsel that
shame still persists in you and you have a recognition of the dreadful offence
- the crime you have committed."  His Honour also took into account the
respondent's co-operation with the police and his admissions to them.
Concluding his remarks the learned Judge said:
    "In any event the invasion of a
    woman's body by unsolicited actions on the part
    of any person must be prohibited by this Court.
    I would have been inclined but for your plea of
    guilty and matters personal to you to have
    imposed a penalty in the vicinity of 7 years.
    I mention that in order to give full weight to
    the discount of the factors which I have taken
    into account."
His Honour then proceeded to sentence the respondent.
13.  The principles to be applied in appeals by the Attorney-General against
sentence do not need to be repeated in detail again.  They are most usefully
summarised by Muirhead A.J. in R v Ireland 49 NTR 10 at p 27, and have been
consistently applied by this Court: "What must be established, before an
appeal based on inadequacy of sentence is allowed, is not that it is lower
than average, or merciful, but plainly wrong on established principles". His
Honour there also drew attention to the observations of Barwick C.J. in
Griffiths v R (1977) 137 CLR 293 at p 310, when he suggested they should be
rare and utilised only "to lay down principles for the governance and guidance
of courts having the duty of sentencing convicted persons".
14.  The primary submission by the Solicitor-General is that "the law is not
settled in Australia in general, and in the Northern Territory in particular
as to what, if any, discount should be given for an otherwise proper sentence
for a plea of guilty", intending thereby to convince this Court that it should
lay down a principle for the governance and guidance of the Supreme Court. He
also says that the learned trial Judge fell into demonstrated error in
considering that, but for the plea of guilty and matters personal to the
respondent, an appropriate penalty was in the vicinity of 7 years
imprisonment.  In other words, that the starting point for fixing penalty,
taking into account the circumstances of the offence and the maximum penalty
allowed, should be in excess of 7 years (he suggests 10 years), from which may
be made allowances by way of mitigation, including for the plea.
15.  It is more convenient to deal with the second argument first.  Obviously,
a sentence commences at a point which is not often disclosed (nor do I think
it need be), by arriving at a view, not necessarily precise, as to what Nader
J. called in Ireland at p 22 the "objective sentence", that is, what part of
the term, if any, of the term of imprisonment specified in the Code, as that
to which the offender is liable, ought to be imposed, having regard to the
circumstances of the offence. Here the offence carries a liability to
imprisonment for life, the same maximum penalty prescribed by the repealed
Criminal Law Consolidation Act and Ordinance for the like offence, there
described as "rape".
16.  The circumstances of the particular offence vary widely.  The offender
may be in a position of trust in relation to the victim, such as parent,
guardian or tutor; the victim's and the offender's age may be relevant
considerations; the offence may have been planned or opportunistic; the victim
may have given the offender some reason to think he was being encouraged into
pursuing his intent; the degree of violence offered, actual or apprehended,
varies greatly from threat to extreme physical brutality; there may or may not
be intimidation by the use of a weapon; the offence itself may be accompanied
by acts of indecency of varying degrees; the length of time during which the
assault was perpetrated may be long or short; the penetration may take place
in the vagina, anus or mouth.  I do not intend these examples to be
exhaustive, but simply to point to the circumstances and combinations of
circumstances which may make up the crime in individual cases.  They point to
the difficulties confronting the sentencer in classifying the offence in
objective terms (see R v Visconti (1982) 2 NSWLR 104).  These difficulties are
compounded when there is not available to the Court sufficiently comprehensive
and reliable information regarding the circumstances attendant upon the
sentences imposed on offenders for the same crime.
17.  The following are brief details of the circumstances of the offence in
some of the cases before this Court in the past three and one half years, and
of the sentence imposed after taking into account the circumstances of the
offender.
DATE OF  OFFENDER    CIRCUMSTANCES              SENTENCE SENTENCE
9.5.86  Biddell     Forcibly had sexual         3 years to be
                    intercourse with his         released after
                    flat mate.                   6 months on recog
                                                 of $1,000 to be
                                                 of good behaviour
                                                 for 3 years
31.10.86  Stanley    Defendant met the victim    For rape 3 years.
                     at a hotel.  She was
                     with her husband.  The      For causing grievous
                     husband left and the        bodily harm 5 years to
                     victim then went with the   be served concurrently.
                     offender. They kissed and   Non-parole period 2 and
                     were walking to a vacant    1/2 years
                     lot when the victim met a
                     man known to herself and
                     her husband and said she
                     was leaving.  The offender
                     became enraged, raped her
                     and stabbed her with the
                     knife.
28.11.86  Pope       Offender abducted and       Imprisonment
                     raped the victim once       for 5 years.
                     at knife-point.  She was    Non-parole
                     a prostitute                period 2 1/2 years
5.12.86   Gumbaduk   Pack rape.  No unusual      Each imprisoned
          and 3      violence. The amount        to 7 years with
          others     needed to effect the        3 year non-parole
                     rape was minimal.           period
8.12.88   Kitto      The victim had an           6 years
                     argument with her           imprisonment. Non-
                     boyfriend and went away     period 2 years
                     with some friends to get
                     from him.  Whilst in
                     their company she drank
                     a large quantity of wine
                     and became hopelessly
                     drunk.  She was
                     repeatedly raped by the
                     boy she was with and by
                     others.  She was under 16.
5.12.88   Anderson   The offender entered the    Deferred passing
                     victim's house and made     sentence on entering into
                     his way to a bedroom        recognizance in the
                     where the victim and her    sum of $500 to be of
                     defacto were asleep. He     good behaviour
                     lowered his pants,          for 12 months
                     rolled the victim onto her
                     back, lay on top of her
                     and penetrated her.
18.  The appellant supplied this Court with transcripts of sentencing remarks
in the following matters, better details are therefor available.
DATE      OFFENDER    CIRCUMSTANCES            SENTENCE
26.5.89   Bakewell    Offender entered the     10 years.
                      victim's flat,           Circumstances of
                      struggle with            pressure on
                      victim, squeezed         windpipe and
                      windpipe 3 or 4          ligature around
                      times, tied part of      neck
                      a sheet around           as victim died as
                      victim's throat,         a result and those
                      disregarded victim       matters taken into
                      struggling for           account on
                      breath, sexual           additional charge
                      intercourse.             of murder.
21.7.89   Cross       Victim gave offender a   For attempt 3 yrs.
                      lift in her car.  On     and for oral
                      lonely road offender     intercourse 7 yrs.
                      assaulted her by         to be served
                      striking around head     concurrently plus 6
                      and body, attempted      months cumulative
                      vaginal intercourse,     for stealing.  Non
                      followed by forcible     parole period 2
                      oral intercourse.        years 3 months.
                                               (The Attorney-General
                                               has lodged an appeal
                                               against the non-parole
                                               period fixed, only)
19.  The Court was also supplied with the decisions of this Court in two cases
on appeal against sentence brought by the Attorney-General.
20.  In Scanlon (unreported 20 November 1987) the offender was convicted of
unlawful entry of a dwelling with intent to commit a crime, robbery whilst
armed with an offensive weapon, indecent assault whilst so armed and assault
with intent to have carnal knowledge and thereby having carnal knowledge. The
same woman was the victim of all of the offences which were committed at the
one time. The assaults were committed whilst the offender threatened the
victim with a knife.  The sexual intercourse was oral. The sentence for rape
was for 5 years.  This Court held that, in applying the law guiding Crown
appeals against sentence, it had not been shown that the sentence was
manifestly inadequate.  Every member of the Court, however, considered the
penalty to be lenient.
21.  On the other hand in Lintern (unreported 2 March 1988), this Court upheld
a Crown appeal against sentence when the offender had twice in the course of
one night raped his 12 year old daughter under threat of violence, on the
first occasion by a knife. The sentences imposed at first instance of 6 years
on the first count, and 8 years on the second count, to be served
concurrently, and a non-parole period of 2 years were quashed.  The sentences
were not backdated to the time the offender was taken into custody, about 6
months prior to sentence being imposed.  This Court substituted sentences of 8
years and 10 years respectively, backdated by that period, and ordered them to
be served concurrently.  The sentences were effectively increased by
approximately 18 months.  A non-parole period of 5 years was fixed.
22.  A further appeal to this Court was in the case of Driver, where the
offender was the appellant.  He had been sentenced to 2 years for unlawful
entry into a dwelling house with intent to commit a crime and 5 years for
rape. The case was complicated by arguments arising out of the application of
s. 4A of the Parole of Prisoners Act which was the major issue on appeal.
Members of the Court regarded the sentence of 5 years as being lenient, but
possibly explicable by the complications referred to.  The Crown had not
appealed, and it was not thought appropriate that the sentence should be
increased by the Court's own motion.  Nader J. considered that a sentence of 7
years would have been in order, describing the circumstances of the offence as
being "most serious indeed".
23.  In this case, so far as His Honour's remarks on sentence disclose,
counsel for the Crown did not provide any guidance as to the range of
sentences imposed for this offence, nor address as to seriousness of the
circumstances of the offence.  Although this Court was provided with the whole
of the transcript of the proceedings on sentence, our attention was not
directed to any portion of it, and it might be safely assumed that those
matters were not put. This Court must always be alert to the double jeopardy
in which an offender is placed upon a Crown appeal against sentence,
especially "if the Crown has not done what was reasonably required to assist
the sentencing judge to avoid the error, or if the defendant was unduly
prejudiced in meeting for the first time on appeal the true case against him",
(R v Tait 24 ALR 473 at 477).  The Crown is in the best position to assist the
Court in regard to the range of sentences which have been imposed for like
offences. Afterall, it is a party to all prosecutions in the Court and
necessarily has all of the relevant information available to it.  Those
representing an individual accused are not so assisted.  If difficulties of
proof arise that may be another question, but such considerations should not
inhibit a genuine attempt to assist the Court by the proffering of such
information as is available.  The Crown does so on many occasions without
objection. Indeed, in some cases where defence counsel is well experienced in
the field, the Court is assisted by submissions based upon his knowledge of
sentencing patterns for the particular offence under consideration.  The
weight to be given to the material produced may vary depending upon its source
and relevance. This Court in R v Anzac (1987) 50 NTR 6 at 15 pointed out that
in the absence of a request from the Judge the Crown is not required to
provide such details, though it may choose to do so; "these comparisons are
helpful, and if given, would probably assist in reducing the number of
appeals."
24.  The submissions put on behalf of the Attorney-General also urged this
Court to set a higher "benchmark for this serious and prevalent offence".  I
take that to mean that the Attorney-General considers that an increase in the
sentence and non-parole period in this case would provide guidance for
sentencing for this offence.  I do not agree. Each case must be considered on
its own facts; the wide range of penalties previously imposed demonstrates the
difficulty in fixing a benchmark.  Perhaps it was in mind that the prevailing
standards of sentence for the offence being thought to be too low, that the
position should be corrected by an upward trend (rather than an abrupt
increase).  In Poyner v R (1986) 66 ALR 264, a majority of the High Court said
that such statements "provide useful guidance which should always be kept in
mind, but they do not state a binding principle".  It may be that what their
Honours there had in mind, inter alia, was the possibility of there being a
dramatic increase in the prevalence of a particular offence which called for
an abrupt increase in penalty rather than an upward trend. However,
notwithstanding the submission, there was no material put before His Honour,
or this Court, going to the prevalence of the offence of rape.  Looking at
such material as I have been able to discover, together with that which was
put before this Court, I can not derive anything which indicates that
convictions for this offence have been more frequent in the recent past as
opposed to the overall period reviewed.  Fox and Freiberg note at p 459 the
remarks of McGarvie J. in Bateman that whilst it was proper to increase a
sentence on the basis of its prevalence the "judicial response in such a
situation needs to be a controlled and measured one.  This is particularly so
at times when well organised and well orchestrated campaigns for heavy
sentences are being conducted in the community."  With that, I agree.
25.  For these reasons I do not accede to the appellant's submissions that
this matter should be treated in some way as being a test case.  It must be
considered on its own facts, in the light of such information as is available,
to determine whether or not the sentence imposed was so far lenient as to
justify the intervention of this Court on an appeal against inadequacy of
sentence brought by the Attorney-General.
26.  As was said by Street C.J. in R v Holder and Johnston (1983) 13 A Crim R
375 at 384, although the approach to detection of error where the ground
relied upon is manifest excess or manifest inadequacy is identical, it is
frequently more difficult to detect error in the form of the latter.  At p 383
His Honour said that an appeal court evaluates the permissible range of
sentence in the light of all of the admissible considerations, and drawing
upon its own accumulated knowledge and expertise.  A sentence lying outside
that range will (in the case of a convicted person's appeal), or may (in the
case of a Crown appeal) be corrected.
27.  Bearing all that in mind, particularly the legal constraints to be
applied in considering a Crown appeal against inadequacy of sentence, I return
to this matter. The facts have been sufficiently described above.  However, to
summarise, this was a case in which the offender prevailed upon the victim to
do him a favour by driving him to a remote area.  When she declined to go
further upon the journey he took the opportunity of her leaving the vehicle to
assault and rape her.  It is reasonable to infer that he induced the victim to
go into the remote spot and waited an opportunity to rape her, which he took,
when she got out of the vehicle.  He was not in any sense encouraged; he did
not use a weapon; his assault prior to rape was not anything near so serious
an assault as has occurred in other cases, though undoubtedly more than
sufficient to overcome the victim's will and efforts to resist his attack.
Nothing which she did, or failed to do, can be called in aid of the respondent
in regard to the circumstances of the offence. It was committed as a result of
planning and opportunity. Taking into account these factors, it seems to me
that the objective sentence of 7 years disclosed by His Honour was within the
appropriate range, though in my opinion at the lower end.
28.  It is not only the circumstances of the offence which is taken into
consideration, but also the circumstances of the offender.  That principle is
of long standing.  Reference is made to it in Blackstone's Commentaries on the
Law of England 7th Edition (1775) Book IV at p 380.   Matters such as the age,
sex, character, mental health, family and employment circumstances and general
social history are examples only of the facts which may bear upon this issue.
According to Fox and Freiberg Sentencing - State and Federal Law in Victoria
(from which that list is taken), the matters which may influence a court in
sentencing have been variously put by researchers at 229 and 292 (p 442/443).
At p 445 the authors quote from Williscroft (1975) VR 292:
    "Now, ultimately
    every sentence imposed represents the
    sentencing judge's instinctive synthesis of all
    the various aspects involved in the punitive
    process.  Moreover, in our view, it is
    profitless (as it was thought to be in
    Kane's Case) to attempt to allot to the various
    considerations their proper part in the
    assessment of the particular punishments
    presently under examination ...  We are aware
    that such a conclusion rests upon what is
    essentially a subjective judgment largely
    intuitively reached by an appellate judge as to
    what punishment is appropriate.  Indeed, in
    R v Geddes (1936), 36 SR (NSW) 554, Sir
    Frederick Jordan C.J., was sufficiently
    oppressed by the problems of seeking a rational
    principle for determining whether a sentence
    was inadequate, that he was able to find a
    solution only in the employment of an
    epigrammatic device.  After pointing out that
    it was easier to see when a wrong principle had
    been applied than to lay down rules for solving
    particular cases the learned Chief Justice
    observed that "... the only golden rule is that
    there is no golden rule"."
The authors go on:
    "The difficulty of
    analysis is even further compounded by the
    repeatedly expressed view that the omission by
    the courts to mention factors in sentencing
    does not indicate that there has been a failure
    to consider them."
29.  The remarks in Williscroft may be distilled into the quotation in Thomas
- Principles of Sentencing at p 37 that "the scales of justice are not
calibrated in scruples" (meaning I think the apothecaries weight unit of 20
grains, a very small amount), or the warning expressed by Street C.J.,
referred to by Nader J. in Ireland at p 19, about forcing sentencing into a
straitjacket of computerisation, a technology which could be as well utilised
to analyse the weight given to factors taken into account in the sentencing
process if disclosed, as to the final result reflected in statistics as to
various sentences upon conviction for the same offence.
30.  The circumstances in which a plea of guilty is entered are not fixed, nor
are the motivations for doing so. The effect on the sentence, when coupled
with other relevant factors, must be as variable.  In Victoria s. 4 of the
Penalties and Sentences Act provides that a court in passing sentence on a
person who pleads guilty to the offence may take that fact into account, and
if so shall say so. That State's Court of Criminal Appeal in Morton 23 A Crim
R 433 at p 438, observed that the statute does not require that the amount of
any reduction for a plea of guilty be stated "and although there is nothing to
prohibit a court stating the amount of the reduction, it will generally be
impossible or misleading to do so, unless a similar qualification is placed
upon all the other elements or considerations that have led to the calculation
of the sentence actually imposed.  Indeed it would generally be highly
undesirable to do so."
31.  What then of the submission that the learned judge placed too much weight
upon the respondent's plea of guilty? In reflecting upon the mitigating
circumstances, His Honour took that factor into account along with others
going to the personal circumstances of the offender, but he allowed "a
substantial discount" for the plea.  Given that His Honour was inclined to
impose a penalty in the vicinity of 7 years, but for the plea and matters
personal to the respondent, and imposed a sentence of 4 years 9 months, the
Crown informs this Court that the "discount is about 28%", after taking into
account the period the respondent had been in custody prior to sentence.  The
calculator was not able to go so far as to answer what proportion of the 28%
was referable to the plea.
32.  In R v Shannon (1979) 21 SASR 442 a court of five Judges was convened in
order to provide guidance to judges and magistrates in their daily task of
sentencing offenders in relation to a plea of guilty.
33.  Concluding his observations at p 452, King C.J. suggested that the Court
should lay down the following propositions:
    "In my opinion
    this Court should now lay down the following
    propositions:
      (1)    A plea of
    guilty may be taken into account in mitigation
    of sentence where -
    (a) it results from genuine remorse, repentance or
    contrition, or
    (b) it results from a willingness to co-operate in the
    administration of justice by saving the expense
    and inconvenience of a trial, or the necessity
    of witnesses giving evidence, or results from
    some other consideration which is in the public
    interest; notwithstanding that the motive, or
    one of the motives, for such co-operation may
    be a desire to earn leniency, and where
    to allow the plea a mitigatory effect would be
    conductive to the public purposes which the
    sentencing judge is seeking to achieve.
      (2)    A plea of
    guilty is not of itself a matter of mitigation
    where it does not result from any of the above
    motives, but only from a recognition of the
    inevitable, or is entered as the means of
    inducing the prosecution not to proceed with a
    more serious charge.
      (3)    In cases
    falling within (1), the judge is not bound to
    make a reduction, but should consider the plea
    with all the other relevant factors in arriving
    at a proper sentence.
      (4)    In
    assessing the weight to be attached to a plea
    of guilty as a factor making for leniency, it
    is proper for the judge to bear in mind that it
    is important to the administration of justice
    that guilty persons should not cause expense to
    the public and delay to other cases by putting
    forward false stories and on the basis of such
    false stories contesting the charges against
    them.
      (5)    The above
    propositions are not to be taken as weakening
    in any way the principle that there must be no
    increase in the sentence which is appropriate
    to the crime because the offender has contested
    the charge."
34.  Mohr J. concurred (p 459).
35.  Wells J., with whom Zelling J. agreed, said at p 453, after reinforcing
the sentencer's discretion:
    "Whatever
    consequences are to be attributed to a plea of
    guilty in a particular case, they must be
    related to the broad principles of sentencing
    by which courts guide themselves, and must not
    be allowed to be dictated by considerations of
    expediency that owe no allegiance to those
    principles"
Later at p 455, he said he supported the conclusions of the Chief Justice, but
emphasized in respect of sub-paragraph (b) of paragraph 1 of those conclusions
"that the willingness referred to in that sub-paragraph may be permitted to
have a mitigatory effect, not where it stands in isolation, but only where, in
all the circumstances in which it is found, to give it that effect would
advance the public purpose or purposes that the sentencing judge is seeking to
achieve."
36.  At p 456 Cox J. expressed the opinion that the notion that a defendant
should, or may, gain credit from a plea of guilty merely because he will
thereby be saving the authorities the trouble and expense of a trial, and
relieving some pressure on the Court's time, cannot stand with earlier
authority, and at p 457 "... the considerations relevant to the question of
the proper punishment of an offender do not include matters which have nothing
to do with the nature or effect of his offence, or the character or
antecedents or disposition of the offender, but relate solely to the machinery
by which is offence is tried."  (See also to the same effect at p 459).
37.  In the Court of Criminal Appeal in New South Wales, Moffit J. in R v
Lawrence (1980) 32 ALR 72 at p 108, completing a review of the relevance of a
plea of guilty:
    "In my view Cross
    J in R v Nicholls and Bushby (Court of Criminal
    Appeal of New South Wales, 21 September 1978,
    unreported) correctly stated the principle as
    follows: "... it is trite in law that an
    otherwise appropriate sentence may justifiably
    be reduced by a plea of guilty in so far as
    that plea demonstrates resipiscence, saves the
    State the cost of a lengthy trial or avoids
    subjecting the victim - particularly children
    and women who have been the subject of sexual
    assaults - from the embarrassment and
    humiliation of giving evidence in open court."
    I would regard the benefits to the State and the victims as
    certainly relevant where it indicates, and it will usually be
    inferred it does, something subjective concerning the prisoner, ie
    that he is repentent or motivated to cause no more harm, ie his
    criminality by the date of trial is less or his rehabilitation is
    already under way. A plea of guilty by reason only of counsel's
    advice in order to get a less sentence is not by reason of any
    change of attitude to the crime committed.  As pointed out in R v
    Gray, supra, (at 227) there may be other reasons for pleading
    guilty, eg plea bargains or because defence is considered useless,
    which ought not attract leniency.  In some cases, eg rape, a plea of
    guilty may be indicative of compassion for the victim of the crime
    by not subjecting her to the distress of a trial upon a plea of not
    guilty:  R v Nicholls and Bushby, supra, per Street C.J.  In some
    cases contrition may be seen from confessing as a desire to mitigate
    the crime and not subject the State to the expense of a trial and
    from making a full revelation of what has happened and doing what
    can be done to right the crime.  The significance of the plea of
    guilty must be determined in the light of all the circumstances.
    Where the crime has been committed without prior planning or in
    unexpected circumstances as in some cases of violence, it is
    somewhat easier to infer contrition in the conduct thereafter of a
    prisoner.  It is less easy when as in a case such as the present,
    the crime is of the organized crime variety in the sense it is
    deliberately planned as a calculated method of making money without
    being detected, and is then carried out relentlessly over a long
    period of time.  The reason for a plea of guilty in such cases is
    more likely to be due to reasons other than remorse and a desire to
    right a wrong."
38.  That the weight to be given to a guilty plea is not capable of being
precisely defined, absent the sentencer specifically assigning a value to it,
is amply demonstrated by the following passage from the reasons of Street C.J.
in Holder and Johnston at p 387:
    "It is well established that contrition is in itself a
    factor weighed in the matter of sentence in
    favour of accused persons.  This is
    particularly so where the contrition is
    manifested in a plea of guilty.  It is
    impossible, however, to lay down arbitrary
    rules regarding the weight to be attributed in
    any given case to the factor of contrition
    manifested by a plea of guilty.  In examining
    the extent to which a plea of guilty can take
    on the colour of contrition, much may depend
    upon the time and circumstances in which the
    plea was advanced.  To take a commonplace
    example, a man accused of a sexual offence may
    make a full and frank admission, coupled with
    expressions of contrition, to the arresting
    police at the very outset and, by maintaining
    that attitude throughout, spare the victim the
    ordeal both of appearing at committal
    proceedings and of keeping alive her
    recollection so that she may be able to give
    evidence at the trial.  Such a man's contrition
    will weigh more favourably than another,
    similarly placed so far as concerns the
    offence, who proffers a plea of guilty for the
    first time when the indictment is presented
    against him. Shades of genuineness, too, can
    affect the extent of the favourable weight
    attracted by protestations of contrition
    coupled with a plea of guilty.
    It has been said repeatedly in judgments of
    this Court that guilty persons are to be encouraged to
    plead guilty and courts will not be slow to
    identify elements of contrition as inhering in
    the proffering of a plea of guilty.  All
    accused persons can ordinarily expect to
    receive the benefit of some credit in the
    matter of sentence (and, for that matter, in
    the non-parole period also) when proffering a
    plea of guilty.  In order, however, that the
    criminal law may not present the appearance of
    dealing more harshly than would properly be the
    case with a person who, after pleading not
    guilty, is convicted by a jury, the relevance
    of a plea of guilty as a factor pointing
    towards leniency in the sentence is subsumed
    under the general category of contrition.
    It may be thought that these generalisations
    provide to sentencing judges little guidance
    upon the manner and extent to which they should
    take into account contrition manifested by a
    plea of guilty.  It would, however, in my view,
    be undesirable to attempt to go further either
    by way of indicating proportional reductions of
    the otherwise proper sentence or by any other
    precise indication.  In every case the
    genuineness of the contrition and the time and
    manner in which it is manifested in association
    with the plea of guilty will require evaluation
    by the sentencing judge in the light of the
    overall complex of the facts before the court."
39.  His Honour was not in that case called upon to consider the relevance of
a guilty plea other than as evidence of contrition.
40.  The Court of Criminal Appeal of South Australia, in Town (1987) 30 A Crim
R 220 at 228, said that even a belated plea of guilty did not deprive the
offender of the whole of a discount to which he would otherwise be entitled
because "his plea did aid in the administration of justice and it did save his
victim from the inconvenience and distress of giving evidence".  That was an
attempted murder case justifying the latter consideration, an important
consideration in cases such as the present, but their Honours also referred to
the "administration of justice", encompassing I think the saving of the
expense and inconvenience of a trial, and perhaps to the more rapid
disposition of criminal cases which may be achieved by timely pleas of guilty,
considerations upheld in Shannon as being appropriate.
41.  In Harman (1988) 35 A Crim R 447, the Court of Criminal Appeal of
Queensland applied Holder and Johnston, but Andrews C.J. raised a particular
concern.
42.  At p 453, His Honour referred to the argument as to the desirability of
inducing guilty persons to plead guilty and choose to save time and expense,
but acknowledging the material advantages said "we must never approach a stage
where people can be induced to plead guilty expecting some precise reduction
of what would otherwise be an appropriate sentence".
43.  It is not possible, I think, to exhaustively formulate all of the
circumstances in which a discretionary allowance should be made in favour of
an offender who pleads guilty.  However, the cases to which I have referred,
and the general principles of sentencing, lead me to the view that for the
benefit to be available, there must be found, or inferred from the plea,
something subjective to the offender going to his contrition or desire to
cause no more harm.  Inherent in such a finding or inference, based upon the
plea or such other evidence as is available, is the notion that by the time
the plea is entered or indicated the offender's rehabilitation has at least
commenced, he or she having accepted responsibility for the criminality
involved in the conduct making up the offence.
44.  There is one matter referred to in Shannon and some of the other cases
which I am most reluctant to follow. That is that a benefit may be extended to
an offender on the basis that the guilty plea saves time, expense and delay in
the criminal justice system.  Those factors are consequential upon the plea.
It seems to me that it is what motivates the offender to plead guilty in
relation to the offence which may count in his favour, not the benefits which
might flow to others unconnected with the offence.
45.  Apart from that matter, I would not quibble with what has been said on
the subject in those cases, acknowledging always that discretion must be
applied to the circumstances in each case.
46.  In this case His Honour gave "full weight" to the plea and other
circumstances personal to the respondent and it was open to him to do so.  The
carefully calculated discount of 28% for all those factors is not excessive in
the circumstances of this case, but it must be made clear that, so far as I am
concerned, it should not be regarded as constituting a precedent.
47.  The non-parole period is not manifestly inadequate. Even if I was
convinced that it should be increased by a matter of months, or even to say 3
years, which must be about the maximum which could be contemplated, it would
be unfair to the respondent to do so upon this appeal.
48.  All in all, the learned trial Judge extended every leniency to the
respondent.  Other offenders ought not to necessarily expect the same
treatment.
49.  I would dismiss the appeal.

JUDGE3
  This is a Crown appeal against sentence.
2.  The circumstances of the crime are recounted in the reasons for judgment
of the other members of the Court and I will not repeat them.  The offence was
serious and one for which there is a maximum penalty of imprisonment for life.
It was wanton and premeditated, accomplished by a combination of trickery and
violence and committed in an isolated area of the respondent's choice in
circumstances obviously very frightening to the victim.  The respondent
secured his opportunity by tricking the victim to take him to a remote spot
and then prevented her escape by throwing away the keys to her vehicle.  He
attempted to escape detection when discovered at the scene. I regard the
respondent's drinking as an aggravating factor, rather than a mitigating one.
It rendered the victim's plight the more seemingly hopeless and the commission
of the offence even more unsavoury.  In my opinion, in the absence of
mitigating circumstances, a longer sentence than seven years imprisonment is
necessary, even in the case of a first offender of good character, in order to
impress on the respondent and the community at large that such conduct will
not be tolerated.  The calculated and premeditated imposition of the
respondent's will on his victim by force in the face of the victim's protests,
requires no less to be consistent with a due regard for the public interest.
3.  As King C.J. said in Yardley v Betts (1979) 22 SASR 108 at 112:
    "It is necessary to keep
    firmly in mind the fundamental principle that
    the criminal law exists for the protection of
    the community.  This protection is achieved, in
    my view, primarily by making the punishment fit
    the offence and the offender thereby promoting
    respect in the community for the justice of the
    criminal law.  The aspect of deterrence of the
    particular offender and of others must not be
    overlooked.  The courts must assume, although
    evidence is wanting, that the sentences which
    they impose have the effect of deterring at
    least some people from committing crime.
    Deterrence possesses particular significance in
    cases of unprovoked violence. ...  The
    protection of the community is also contributed
    to by the successful rehabilitation of
    offenders.  This aspect of sentencing should
    never be lost sight of and it assumes
    particular importance in the case of first
    offenders and others who have not developed
    settled criminal habits.  If a sentence has the
    effect of turning an offender towards a
    criminal way of life, the protection of the
    community is to that extent impaired.  If the
    sentence induces or assists an offender to
    avoid offending in future, the protection of
    the community is to that extent enhanced.
    To say that the criminal law exists for the
    protection of the community
    is not to say that severity is to be regarded
    as the sentencing norm.  Times and conditions
    change, and the approach of judges to their
    task must be influenced by contemporary
    conditions and attitudes.  But public concern
    about crime, however understandable and soundly
    based, must never be allowed to bring about
    departure by the Courts from those fundamental
    concepts of justice and mercy which should
    animate the criminal tribunals of civilized
    nations. They are summed up, in the aspects
    relevant to the present discussion, by Napier
    C.J. in Webb v. O'Sullivan.
    "The courts should
    endeavour to make the punishment fit the crime
    and the circumstances of the offender, as
    nearly as may be.  Our first concern is the
    protection of the public, but, subject to that,
    the court should lean towards mercy.  We ought
    not to award the maximum which the offence will
    warrant, but rather the minimum which is
    consistent with a due regard for the public
    interest."
    The protection of the
    public must remain our first concern, but if,
    consistently with that, we can, in our
    compassion, assist another human being to avoid
    making ruin of his life, we ought surely to do
    so."
4.  In the present case the degree of culpability rather than the consequences
of the crime are to be stressed. The circumstances of the present case
indicate a high degree of culpability, well justifying an increase in
sentence. Consideration of compassion notwitstanding, there must be some
proportionality between the degree of culpability exhibited and the punishment
to be imposed.  I repeat, the maximum penalty for this offence is imprisonment
for life. In my opinion, the seven year "objective" sentence in the present
case (by which I mean the sentence that the learned Trial Judge would have
been minded to impose but for mitigating factors) lacked proportionality and
discloses error.
5.  The learned Solicitor-General invited this court to give a judicial
warning of an intention to increase penalties but I cannot agree with that.
The sentencing court has a wide discretion within the broad principles of
sentencing and the individual circumstances of each crime and the
circumstances of the offender are to be considered.  This being so, I am of
the view that this court cannot lay down any "policy" or give any "warning".
6.  It was argued that some sort of warning should be given about offences "of
this type", and that their prevalence is increasing.  There was no evidence
before us of the prevalence of breaches of section 192 of the Code.  Nor was
any previously observed standard of penalty established.  I do not find the
latter surprising.  As Lord Reid said in DPP v Ottewell (1970) AC 642 at 647:
      "It was rather tentatively
    suggested by the learned Attorney-General that
    there is a "tariff" for each kind of offence
    which is varied upwards or downwards according
    to the circumstances of the offence and the
    character of the accused.  But offences of a
    particular kind vary so vastly in gravity that
    there cannot and should not be any "normal"
    sentence and there is no workable standard by
    which to judge whether any particular sentence
    is extended beyond what is "normal"."
(cf. Cross, The English Sentencing System, Butterworths (UK), 1975, Chapter
IV:  "Fixing the Length of a Prison Sentence", esp. at pp 147-154 and R v
Ireland (1987) 49 NTR 10 at p 17 per Nader J.  The difficulty in ascertaining
a "tariff" for sexual offenders is particularly acute:  R v Visconti (1982) 2
NSWLR 104 at 107 per Street C.J.
7.  Whilst a degree of standardization of penalties for particular crimes in
similar circumstances may be desirable, in my respectful opinion, since each
case requires the application of established principles of sentencing to
particular facts, it is not for this court to lay down any predetermined
general practice.
8.  It was argued before us that, the Crown having dubbed this a "test case",
it would be unfair to the respondent to increase the penalty.  I do not accept
that submission. This case is to be approached on its own facts and I
respectfully and emphatically concur with King C.J. in Yardley v Betts supra
at pp 113, 114 when he said:
    "It was argued
    before us that an offender who was to suffer a
    penalty greater than the hitherto observed norm
    would be justified in entertaining a sense of
    injustice.  I cannot accept the argument so
    formulated.  When a person commits a crime he
    renders himself liable to the punishment
    prescribed by law.  He suffers no injustice if
    the punishment imposed is within the statutory
    maximum and is not excessive having regard to
    all the circumstances. The notion of a criminal
    complaining that he experiences a sense of
    injustice, because he committed his crime on
    the faith of the current practice of the courts
    and then got more than he bargained for,
    strikes me as ludicrous.  Is the same criminal
    justified in entertaining a sense of injustice,
    if the warning, although given, was not
    published by the media or not by the section of
    the media which he sees or hears?  He might
    perhaps have been out of the State when the
    warning was given.  I am firmly of the view
    that an offender has no cause for complaint, if
    he receives a sentence which is within the
    legal maximum and is fair and reasonable having
    regard to all the circumstances of the case,
    simply because courts have been in the habit
    hitherto of imposing somewhat lighter sentences."
9.  I am not unaware of the "double jeopardy" in which a Crown appeal places
the accused:
    "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." (R v Tait and Bartley
    (1979) 24 ALR 473 at 476).
Nonetheless, the Northern Territory legislature has seen fit to grant to the
Crown an appeal as of right against sentence (Criminal Code, section 414
(1)(c)) and in an appropriate case the inadequacy of the sentence originally
imposed will outweigh "...the vested interest that a man has to the freedom
which is his, subject to the sentence of the primary tribunal" (Whittaker v R
(1928) 41 CLR 230 at p 248 per Isaacs J.).  It is not without significance
that even on appeal against sentence by the prisoner the court may of its own
motion increase a sentence which it considers inadequate in law (Criminal
Code, section 411(4)).
10.  The principles to be applied by Appeal Courts in these circumstances are
well-established.  It is not necessary to outline them here.  Suffice it to
say that I consider the seven year "objective" sentence in this case to be
"...plainly wrong upon established principles" (R v Ireland, supra, at p 27
per Muirhead A.J.) and not merely lenient. I consider no less than a ten year
sentence to be an appropriate "objective" sentence.
11.  I turn to the question of the relevance of the plea of guilty and in so
doing I immediately record my recognition of the difficulties and dangers of
generalising and the hazards involved in isolating individual features of a
case in order to label and categorise them.
12.  As has so often been said, in any particular case the punishment must fit
the crime and the offender.  It is the duty of the sentencing court to
determine the punishment that is appropriate to an offender of a certain
character and to the particular offence committed.
13.  The sentencing court has regard to those circumstances of the offence and
those characteristics of the offender which are relevant to the
appropriateness of the particular punishment to be imposed, whether having
regard to the elements of prevention, deterrence, rehabilitation, retribution
or any combination of these.  Unless a factor relating to the circumstances of
the offence or the character of the offender is relevant to one or more
intended effect of the punishment, it simply cannot be a consideration either
in aggravation or in mitigation of penalty.
14.  It follows that a plea of guilty per se must somehow necessarily relate
to a purpose of punishment in order to be a mitigating factor.
15.  No doubt the reason or reasons for a plea of guilty are many and varied
and often not known or only partly known to the sentencing court.  It is only
if the particular motive or motives for a plea of guilty are proven and
demonstrated to be relevant to a particular purpose of the punishment, for
example it sheds light on a relevant characteristic of the offender, that a
sentencing court can have regard to it. As Wells J. said in R v Shannon,
(1979) 21 SASR 442 at 453, an inviolable precept in sentencing is that
      "...whatever consequences
    are to be attributed to a plea of guilty in a
    particular case they must be related to the
    broad principles of sentencing by which courts
    guide themselves, and must not be allowed to be
    dictated by considerations of expediency that
    owe no allegiance to those principles."
16.  It is well established that a plea of guilty may evidence contrition,
remorse or repentance, which are recognized mitigating factors.  The courts
regard a defendant who recognises the gravity of his offence and its
consequences and sincerely regrets them as requiring less deterrence than one
who does not.  Of course a defendant may feel remorse because of the
consequences to his victim or because of the consequences to himself, or both.
A guilty plea motivated by a desire to spare the complainant in a sexual
offence the ordeal of giving evidence may involve remorse.  On the other hand
there is no remorse evident by a guilty plea emanating from a "...reluctant
acknowledgement that no other course is open..." (R v Shannon supra at 455 per
Wells J.) or entered on advice from counsel that some mitigation in penalty
may be had.  In principle I am unable to see how a plea of guilty, without
more, can be a mitigating factor.
17.  I have carefully considered the reasons for judgment in R v Shannon
supra. The majority decision has been followed and expressly approved by other
courts, see for instance, Schumacher v R  (1981) 3 A Crim R 441.
Notwithstanding that, and with all due respect to those who differ, I remain
unpersuaded that "cooperation with the authorities" is necessarily in "the
public interest," nor that its encouragement is a proper purpose of the
sentencing process. If the legislature was so minded it could readily seek to
achieve that object by other means. King C.J. stated that:
      "...courts have generally
    been willing to recognize as meritorious a
    willingness on the part of the offender to
    co-operate in the administration of justice
    irrespective of the moral purity of his
    motives.  The reason, no doubt, is that the
    proper administration of criminal justice
    should be influenced, not only by logic and
    consistency, but also by the need to serve
    practical ends."  (R v Shannon, supra at 450).
But the administration of the courts is the responsibility of those who
administer the courts not those who are convicted and sentenced by the courts.
18.  In Harris v The Queen (1967) SASR 316 the court said that contrition,
repentance and remorse aside, the idea should be "energetically repudiated"
that any prisoner has anything to gain by saving the court trouble or crown
witnesses embarrassment. I would "energetically repudiate" the idea that the
length of loss of liberty can turn on factors such as administrative
convenience. Furthermore I am not satisfied that a proper object of sentencing
is the encouragement of pleas of guilty.  Should guilty pleas be encouraged?
In view of the right of the accused to put the Crown to proof beyond
reasonable doubt of the charges alleged against him, should not guilty pleas
be discouraged? Is it the business of the criminal law to motivate any
behaviour other than desistance from crime, however morally correct or
praiseworthy or publicly beneficial?  In my view it is for the legislature
rather than the courts to encourage pleas of guilty if the consequent saving
in court time is to be regarded as in the public interest.  Nor do I think the
argument is advanced by reference to credits given to offenders who disclose
the identity of their confederates.  See, for instance, R v Shannon, supra at
450 per King C.J.  The justification for a reduction of penalty in such cases
would seem to lie not in expediency or encouragement of the practice of
"informing" but rather in the law exacting less retribution from an offender
who is prepared to assist in the detection and bringing to justice of other
offenders.  It demonstrates (in however small a way) some acknowledgement of
and respect for the authority of the law and the needs of society in that
regard.  Some may see that as too lofty a justification for a reduction the
only reason for which they see as necessity. If that be so, the reduction is
nevertheless in my view consistent with principle, and remains no
justification for a reduction for a plea of guilty per se.
19.  What, then, is the effect of the plea entered by the respondent in this
case?  I turn to the remarks on sentencing of the learned Trial Judge:
    "I take into account that you co-operated with the police,
    that you gave a fairly lucid account of your
    involvement in this offence and made complete
    admissions when spoken to by them.  I also take
    into account your demonstration of remorse
    which is associated with your ...plea of guilty
    and the shame which you have demonstrated
    particularly in your ability to associate now
    properly in your family relationship...
    "You pleaded guilty from the very outset so far as the
    general conduct of proceedings were concerned
    and I allow substantial discount by adopting
    that course from committal to the present entry
    of plea yesterday.  It demonstrates remorse in
    a practical legal sense.
    "I add to that of course the fact that was urged upon me by your
    counsel that shame still persists in you and
    you have recognition of the dreadful offence -
    the crime you have committed."
20.  I agree that this is an appropriate case for mitigation on account of the
plea of guilty.  The medical assessment of the prisoner as being of below
average or even impaired mental ability was, too, quite properly taken into
account by the learned trial judge.  I respectfully agree that the learned
trial judge took proper account of all other matters in mitigation.  I only
disagree on his starting point i.e. his "objective" sentence of 7 years
imprisonment.  While the other members of the Court consider this appeal
should be dismissed, I would allow the appeal and, taking account of the
mitigating factors referred to by the learned trial judge, order that the
respondent be sentenced to 7 years gaol with a non-parole period of 3 years
and 3 months.