Carroll v The Queen [2011] NTCCA 6

 

 

PARTIES:                                         JASON CARROLL

 

                                                         v

 

                                                            THE QUEEN

 

TITLE OF COURT:                           COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                               CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          CA 21 of 2010 (20817105)

 

DELIVERED:                                   26 May 2011

 

HEARING DATE:                             4 April 2011

 

JUDGMENT OF:                              MILDREN, SOUTHWOOD and BLOKLAND JJ

 

APPEALED FROM:                          RILEY J

 

CATCHWORDS:

 

APPEAL AGAINST SENTENCE – multiple sexual offences – accumulation of sentences – total sentence manifestly excessive – appeal allowed

 

Sentencing Act (NT) s 52(2)

 

Attorney-General v Tichy (1982) 30 SASR 84; Dinsdale v The Queen (200) 202 CLR 321; Hampton v The Queen [2008] NTCCA 5; Miles v The Queen [2001] NTCA 9; Murphy v The Queen [2005] NTCCA 15; OAA v R [2010] VSCA 155; R v O’Rourke [1997] 1 VR 246; R v Richardson (unreported, VCCA, 30 April 1992); R v SBL [1999] 1 VR 706

 

D Ross, Crime par [19.2155]

REPRESENTATION:

 

Counsel:

    Appellant:                                    S Cox QC

    Respondent:                                 M McColm

 

Solicitors:

    Appellant:                                    Northern Territory Legal Aid Commission

    Respondent:                                 Office of the Director of Public Prosecutions

 

Judgment category classification:   B

Judgment ID Number:                      Sou1104

Number of pages:                            27


IN THE COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Carroll v The Queen [2011] NTCCA 6

No CA 21 of 2010 (20817105)

 

 

                                                     BETWEEN:

 

                                                     JASON CARROLL

                                                         Appellant

 

                                                     AND:

 

                                                     THE QUEEN

                                                         Respondent

 

CORAM:    MILDREN, SOUTHWOOD and BLOKLAND JJ

 

REASONS FOR JUDGMENT

 

(Delivered 26 May 2011)

 

The Court:

Introduction

[1]       On 30 April 2009 the appellant pleaded guilty to 10 counts on an indictment dated 7 November 2008.  He was convicted of all counts and sentenced to a total sentence of 21 years imprisonment with a non-parole period of 16 years.

[2]       This is an appeal against the appellant’s total sentence of imprisonment.  The grounds of appeal are:

1.        The sentencing Judge erred in directing that the aggregate sentence of imprisonment he imposed for counts 1 to 9 on the indictment was to be served wholly cumulatively on the sentence of imprisonment he imposed for count 10.

2.        The total sentence of imprisonment is manifestly excessive.

[3]       The appellant has not appealed against any of the individual sentences of imprisonment that were imposed on him for each count on the indictment.  However, the sentencing Judge erred by failing to discount each individual sentence for the appellant’s pleas of guilty, and by imposing an aggregate sentence covering all counts.  In so doing he failed to comply with s 52(2) of the Sentencing Act (NT).

The counts on the indictment

[4]       The 10 counts on the indictment dated 7 November 2008 were as follows.

Count 1

Contrary to s 196(1) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant deprived CR of her personal liberty.  The maximum penalty for this offence is imprisonment for seven years. 

Count 2

Contrary to s 211(1) and (2) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant stole CR’s motor vehicle and used violence upon her in order to obtain the motor vehicle.  The appellant was armed with a metal jack handle.  The maximum penalty for this offence is imprisonment for life.

Count 3

Contrary to s 188(1) & (2)(a), (b) & (m) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant unlawfully assaulted CR with a metal jack handle.  The maximum penalty for this offence is imprisonment for five years.

Count 4

Contrary to s 188(1) & (2)(b) & (k) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant indecently assaulted CR by placing his mouth on her face and breasts.  The maximum penalty for this offence is imprisonment for five years. 

Count 5

Contrary to s 192(3) & (7) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant attempted to have penile/anal sexual intercourse with CR without her consent.  The maximum penalty for this offence is imprisonment for fourteen years. 

Count 6

Contrary to s 192(3) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant inserted his fingers into CR’s vagina without her consent.  The maximum penalty for this offence is imprisonment for life.  This count was a representative count.

Count 7

Contrary to s 192(3) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant inserted his fingers into CR’s anus without her consent.  The maximum penalty for this offence is imprisonment for life.  This count was a representative count.

Count 8

Contrary to s 192(3) and (7) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant attempted to make CR perform fellatio on him without her consent.  The maximum penalty for this offence is imprisonment for fourteen years.  This count was a representative count.

Count 9

Contrary to s 192(3) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant performed cunnilungus on CR without her consent.  The maximum penalty for this offence is imprisonment for life.

 

 

Count 10

Contrary to s 192(3) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant had penile/vaginal sexual intercourse with CR without her consent.  The maximum penalty for this offence is imprisonment for life.  This count was a representative count.

The sentences imposed for each count on the indictment

[5]       The sentencing Judge stated that before allowing for a reduction in the appellant’s sentence to reflect his pleas of guilty his Honour would have imposed the following sentences for each count on the indictment.

Count 1, imprisonment for four years.

Count 2, imprisonment for six years.

Count 3, imprisonment for three years.

Count 4, imprisonment for one year.

Count 5, imprisonment for four years.

Count 6, imprisonment for six years.

Count 7, imprisonment for eight years.

Count 8, imprisonment for three years.

Count 9, imprisonment for seven years.

Count 10, imprisonment for fourteen years.

[6]       The sentencing Judge directed that the sentences in relation to Counts 1 and 2 be served wholly concurrently with each other giving an aggregate sentence of six years imprisonment for those counts.  Counts 3 to 9 inclusive were also directed to be served wholly concurrently, giving an aggregate sentence of eight years imprisonment for those counts.  His Honour directed that the aggregate sentence of six years imprisonment for Counts 1 and 2 be served cumulatively upon the aggregate sentence of eight years imprisonment for counts 3 to 9 inclusive, giving an aggregate sentence of 14 years imprisonment for Counts 1 to 9.  His Honour then directed that the aggregate sentence of fourteen years imprisonment for Counts 1 to 9 be served cumulatively upon the sentence of 14 years imprisonment for Count 10 on the indictment.  This gave a total sentence of imprisonment of 28 years before the total sentence of imprisonment was discounted for the appellant’s pleas of guilty.

[7]       In light of the appellant’s pleas of guilty the sentencing Judge reduced the head sentence from 28 years to 21 years imprisonment, being a discount of 25 per cent.  His Honour then fixed a non-parole period of 16 years.  Both the total sentence of imprisonment and the non-parole period were backdated to 23 June 2008 being the date when the appellant was taken into custody.  As we have stated in par [3] above, the sentencing Judge erred in doing so because he effectively imposed one aggregate term of imprisonment for all of the 10 counts on the indictment.  Section 52(2) of the Sentencing Act precludes one term of imprisonment being imposed for multiple counts on an indictment where one of those counts is an offence contrary to s 192(3) of the Criminal Code.  Nevertheless, the error is only a technical one.  If the sentence for each count is discounted by 25 per cent and then ordered to be served concurrently or cumulatively in accordance with the sentencing Judge’s orders, the result is an effective total sentence of 21 years which is the same period of imprisonment that his Honour imposed.

Representative counts

[8]       Counts 6, 7, 8 and 10 on the indictment were charged as representative counts.  Each of these counts was a representative sample of uncharged criminal acts which formed part of the Crown facts which were admitted by the appellant.  While this aspect of these counts does not directly bear on either of the two grounds of appeal, it is necessary to note the following principles as part of the context in which the appellant was sentenced. 

[9]       Where only some of a number of like offences committed by an offender are charged on an indictment those counts are said to be representative or sample counts.[1]  When uncharged offences of the same kind as the charged offences are admitted for the purposes of a plea, the sentencing Judge is entitled to have regard to the whole of the appellant’s conduct in determining the sentences to be passed upon the counts on the indictment to which the appellant pleads guilty.  This practice does not contravene the rule against taking into account the commission of other offences as constituting a circumstance of aggravation.[2]

[10]    Not only does the fact that a count is agreed to be a representative count preclude it being said, in mitigation, that the offence was isolated, it affirmatively enables the charged offence to be seen in its full circumstantial context.  The appellant is not, by a loading of the sentence, to be punished for the uncharged offences, but the sentence for the representative offence may reflect the fact that it occurred in a wider context.  Consistently with this view regard may be had to the adverse effect upon CR of the whole of the appellant’s conduct, which effect might not have been produced to the same extent by the representative offences counted alone.[3]

The facts

[11]    The facts of the offending are as follows.  We have set out the facts at length because only by doing so can the full extent of the appellant’s conduct and its attendant criminality be appreciated.

[12]    At 7.00pm on 21 June 2008, CR attended the post office on Hartley Street in Alice Springs.  She parked her motor vehicle near the telephone boxes and she went to use one of the telephones.  Her purse and her keys were in her hand.  She tried to use two of the telephones but they did not work and she moved to a third.  She was about to get some money from her purse so she could use the telephone when she realised she no longer had her purse.

[13]    CR turned back to look for her purse and saw the appellant standing about two metres from her.  He was holding her purse and keys and CR asked for them to be returned.  The appellant said, “I got them from a young boy.”  CR asked where the young boy was and the appellant motioned in the direction of her motor vehicle.  She noticed that the front passenger door was open and she walked towards her motor vehicle to see if anyone was inside.  After she did so, the appellant pushed her in the back and she ended up sitting in the front passenger seat.  The appellant then got into the motor vehicle and drove off with CR. 

[14]    The appellant drove down Gap Road.  He was silent for a time and then he grabbed CR’s hair.  He said, “I’m taking you to see my family.”  CR was stunned and terrified.  She tried to resolve the situation by suggesting that the appellant drop her off or take her home and leave her behind.  He responded by pulling her hair with his left hand and saying, “I take you to my family.  I want a white woman.  I want a wife.”

[15]    CR asked the appellant if he wanted to go and buy some grog.  He replied, “No.  I want a white woman wife.”  He told CR he was taking her to his grandmother and mother.  He said, “Come on, come on, I have no woman, if you don’t come I kill you.  I kill white woman.”  CR started screaming and crying.  Every time she screamed the appellant hit her across the face.

[16]    They drove past Old Timers and the appellant turned right down Ilparpa Road.  He told CR that he had family out here.  CR asked him to drop her off.  He said, “No.  You are my woman.  I need a woman.  You know how it is.”  He said he had not had a woman in a long time and he was going to take her to Nyirripi.  The appellant then turned and struck CR four times across her head and face with his left hand. 

[17]    Eventually the appellant drove down a dirt road.  CR became hysterical.  The appellant hit her again and again and grabbed her by the hair.  The appellant stopped the motor vehicle when they reached a clearing.  It looked like a place that people went to drink alcohol.  There were empty cans everywhere.  The appellant stopped the motor vehicle in front of a wreck of a motor vehicle. 

[18]    The appellant got out of the motor vehicle and urinated.  CR tried to open her door and escape but the door was locked.  CR then scrambled over the front seats to find a metal jack handle in the back of the motor vehicle.  She also tried, unsuccessfully, to open the sliding door of the motor vehicle.  However, she managed to find the metal jack handle.  The appellant opened the sliding door and CR swung the metal jack handle at him.  She missed.  Her attempt enraged the appellant.  He grabbed the metal jack handle and hit CR with it over her arms and legs. He yelled, “I will kill you, you white bitch.” 

[19]    CR was trapped in the motor vehicle.  She tried to get out but the appellant grabbed her hair, pushed her back and hit her with the metal jack handle.  She managed to open the back door and make a run for it.  However, she only managed to go a few steps before the appellant caught her. 

[20]    The appellant dragged CR by the hair to the passenger side of the motor vehicle.  He leaned CR against the sliding door and tried to kiss her.  He slobbered over her face and ‘dry humped’ her. The appellant then put one hand on the back of CR’s neck and tried to bend her head forward which hurt her neck.  He was using one knee to press her back.  He said, “Come on, come on.”

[21]    CR managed to push the appellant off her.  She ran towards some trees in an attempt to escape.  However, the appellant caught her and dragged her back by the hair.  He hit her with the metal jack handle again. 

[22]    CR then told the appellant that she needed to urinate.  She ran for the bush and told him, “Don’t look at me, it is women’s business.”  The appellant caught her and pulled her to the ground by her hair.  He then hit her with the metal jack handle.  CR put her arms up to try to protect her face.  She begged him not to kill her.  The appellant then grabbed CR and shoved her through the sliding door of the motor vehicle.  She ended up on her back.  She was partly in and partly out of the motor vehicle. 

[23]    The appellant tried to pull CR’s jeans down.  She held onto them and tried to keep them up.  CR managed to get her feet up towards her chest and she kicked the appellant hard in the groin.  In response the appellant hit her.  The punch was so hard it left her totally dazed.

[24]    The appellant took his shirt off and managed to take off CR’s jeans and underpants.  He pushed her shirt and bra up and put his hands all over her chest.  He put his mouth all over her face and her breasts.  He pulled his own jeans down.  He opened CR’s legs wide and tried to put his penis into her anus but was unable to do so. 

[25]    The appellant held CR’s legs so far apart she felt like he was tearing her apart.  She felt the appellant insert his fingers into her vagina which hurt her.  She also felt him insert his fingers into her anus.  He took hold of her neck and pushed her head towards his groin.  CR said, “No.”  She was unable to bear the thought of her mouth on his penis.  The appellant then inserted his tongue into her vagina and he continued to insert his fingers into her anus.  This caused CR pain. 

[26]    CR tried to get her leg free to kick the appellant but he kept her legs apart.  He then inserted his penis inside her vagina and moved it in and out.  CR thought she was bleeding. 

[27]    The appellant then spat on his fingers and inserted his fingers into her anus and vagina.  At one stage CR was able to get out of the motor vehicle and run but the appellant caught her. Eventually she stopped trying to escape.  Instead she unsuccessfully tried to urinate to deter the appellant.  The appellant grabbed her hair in clumps and again inserted his penis in and out of her vagina. 

[28]    Eventually the appellant stopped attacking CR.  He told her he was taking her to Nyirripi in her motor vehicle.  He had the metal jack handle when he said this and he waved it at her, so CR obeyed him.  The appellant pulled his jeans back up and threw CR’s jeans at her.  She put them on without any underpants.  She did not know where her underpants were. 

[29]    The appellant opened the passenger door of the motor vehicle and shoved CR inside.  He then got in the driver’s side, drove back to the highway and started driving towards Hermannsburg.  He was driving at 120 km per hour.  They passed two motor vehicles and CR told him to slow down.  He told her to shut up.  She cried and he hit her across her face with the back of his hand.

[30]    As they were driving along CR noticed a motor vehicle behind them.  She told the appellant to slow down and watch out for cattle and kangaroos and he slowed down a bit.  When he did so CR pulled on the handbrake and jumped out of the motor vehicle.  She landed on her knees and fell over on her legs and bottom.  She suffered a fractured coccyx as a result. 

[31]    CR then ran towards the motor vehicle that was following them.  The occupants of the motor vehicle let CR into their motor vehicle and drove her to the police station.  As a result of the appellant’s attack on her CR was distressed and dishevelled and had multiple red circular bruises all over her torso and arms and she had injuries in the region of her vagina and anus. 

[32]    In her victim impact statement CR stated:

When I was assaulted, I experienced indescribable pain, humiliation and terror.  My body was beaten and violated in so many ways.  I felt like my insides were being pulled out.  I would rather die than ever go through those hours of torture.  At the time I really thought I was going to be killed.  I was petrified and have lived in fear since.  I do not feel safe in this world any more.

After the assault I was visibly shaking for days and am still very jumpy.  Any loud noise startles me.  I find it difficult to go out and do not like going anywhere on my own.  Sometimes I just stay at home in bed all day because I am too frightened to go anywhere and I feel imprisoned.  When I go out, I carry a big stick in my car.  When I am out doing the things I have to do, like pay bills or attend appointments there are times when I have panic attacks.  My heart races.  I shake uncontrollably and I get overwhelmed by a horrible feeling that I am going to die.  Everything becomes a sea of confusion and I cannot think straight.  It is very frightening.  In this state I can lose control to the extent of vomiting or losing control of my bladder.  It is really embarrassing.  I find it particularly frightening seeing Aboriginal men, which is inevitable if I go out in Alice Springs.  Even the sound or smell of an Aboriginal man makes me feel sick and scared.  I think I will have to leave this town.  I jump if someone comes up behind me.  I do not like being close to men.  I feel a bit like I am being chased all the time and I cannot get away.

[33]    In other parts of her Victim Impact Statement, CR stated that she continues to have nightmares.  She has trouble sleeping and she continually feels distressed.  She sometimes thinks of suicide.  CR is a 46 year old woman whose life has been devastated as a consequence the appellant’s crimes against her.


The appellant’s subjective circumstances

[34]    The appellant is an Aboriginal man who was born on 1 March 1982 at Amata in the Anangu Pitjantjatjara Yankunytjatjara Lands in the North of South Australia.  He was 26 years of age when he committed the crimes which are the subject of this appeal.  His parents separated when he was about three years old.  He had a strained relationship with his father who moved away and formed a new family.  The appellant was raised by his grandparents.

[35]    The appellant had a troubled adolescence.  He misused substances, including sniffing petrol, for a long time.

[36]    The appellant attended primary school in Amata and then High School in Adelaide for about two years.  He was not a good student.  After that he returned to his community to undergo ceremonial obligations. The appellant has been in meaningful employment.  After he left school he gained employment as a cattle musterer.  He has also worked as a caretaker for the local school in Fregon.  He cared for the school grounds and undertook general maintenance.

[37]    The appellant was married in 2000.  The relationship ended five years later.  The offender separated from his wife because he believed that she had been unfaithful to him.  He has one daughter from the marriage.  His daughter and ex wife live in South Australia.  He has not had contact with either of them for some time.

Remarks of the sentencing Judge

[38]    The remarks of the sentencing Judge included the following statements.

Later you came to believe your wife was unfaithful to you.  It is unclear when the relationship with your wife broke down; however, I accept that it was in the context of the breakdown that you came to Alice Springs at the time of this offending.  At that time you were feeling isolated and angry and you were looking for a female.

….

The offending occurred in circumstances where you came to Alice Springs in search of female companionship.  You did not plan to abduct and attack CR, but when the opportunity presented itself, you quickly devised a plan and you then carried it out.  Although the commencement of the offending was opportunistic, it was carried on over a significant period of time and you had plenty of opportunity to reconsider your position and cease your actions.  You were invited to do so on many occasions by your distressed victim.  Regrettably you continued on.

….

It is of significance for the purpose of determining a sentence in this matter that as at the date of your offending you were on bail for serious offences alleged against you in South Australia.  Those charges were later dropped but nevertheless you were on bail when you offended on this occasion.

….

I have received a psychiatric report, which was prepared following an interview with you.  In the report you are described as being of above average intelligence.  You also exhibit some insight into your offending.  It is noted that you understand that you inflicted significant psychological harm on your victim, and you appreciate that she would want you to be sent to prison for a long time.

It is recorded that your offending appears to have arisen out of a troubled relationship with your wife.  Of course your relationship with your wife is now at an end.

….

The psychiatrist expressed the view that you do not have a mental disorder and that you are not a suitable candidate for a sexual offenders’ program. 

The pre-sentence report notes that you were said to have been full drunk at the time of the offending.  However, you continued to have a memory for much of what took place.  You acknowledge that at the time of the offending you were aware of the harm you were causing but you elected to proceed.  You are reported to have demonstrated a minimum level of remorse for your actions.  You have also tended to downplay the seriousness of what you did, saying ‘it was just sex’ and ‘I am not a murderer’.

….

In determining an appropriate sentence, it is necessary to bear in mind that the offending occurred on the one occasion, albeit over a significant period of time.  Much of the offending occurred in a flurry of activity in the one location.  In all of the circumstances there is a need for a degree of concurrency between the sentences and, in particular, those occurring at the area where you parked the motor vehicle. 

In addition, it is necessary to bear in mind the totality principle and I have reviewed the total sentence I am about to impose to ensure that it reflects the level of your culpability and it is proportionate to your offending.

….

Any penalty I impose must reflect the need for general deterrence.  It must also emphasise the abhorrence with which such offending is regarded in the community.  Offending of this kind gives rise to feelings of indignation and moral outrage within the community.  You showed your victim no pity.  You subjected her to depraved and degrading conduct.  Your conduct was both callous and outrageous and it calls for condign punishment. 

In addition, the sentence must also provide specific deterrence in relation to you as the offender.  In all the circumstances I regard your prospects of rehabilitation as being poor. 

I regard the offending in this matter as being in the most serious category of cases of its kind.

….

As indicated earlier, I consider there is a need for concurrency for many of the offences to reflect the fact that this was one very serious course of offending, with a degree of overlap between the offences.  Further I need to have regard to the totality principal.

Ground 1

[39]    As to ground one of the appeal, the appellant submitted that the sentencing Judge erred in directing that the aggregate sentence of 14 years imprisonment which was imposed for counts 1 to 9 on the indictment be served wholly cumulatively on the sentence of imprisonment that was imposed for count 10.  In support of this ground of appeal Senior Counsel for the appellant argued that there should have been some concurrency between the aggregate sentence imposed for counts 1 to 9 on the indictment and the sentence of 14 years imprisonment imposed for count 10 because all of the offending which is the subject of counts 1 to 10 inclusive on the indictment was part of the one episode of offending.  The sentencing Judge’s failure to allow for some concurrency between the aggregate sentence imposed for counts 1 to 9 on the indictment and the sentence of imprisonment imposed for count 10 resulted in a total sentence that was manifestly disproportionate to the whole of the appellant’s criminal conduct.

[40]    In our opinion this ground of appeal must succeed.  The sentencing Judge erred in directing that the aggregate sentence of 14 years imprisonment he imposed for counts 1 to 9 on the indictment should be served wholly cumulatively on the sentence imposed for count 10.  Although the sentencing Judge acknowledged that there was “one very serious course of offending” and he made the sentences he imposed for counts 3 to 9 wholly concurrent, his Honour failed to accord adequate weight to the severity of the sentence of imprisonment of 14 years he imposed for count 10 on the indictment.  He did so in circumstances where the severity of that sentence must have been based in part on all of the circumstances of the offending which were highly interdependent.  The accumulation of the aggregate sentence imposed for counts 1 to 9 upon the sentence imposed for count 10 resulted in a total sentence of imprisonment that was manifestly disproportionate to the whole of the appellant’s criminal conduct.

[41]    In determining which sentences of imprisonment should be served concurrently and which sentences should be cumulated the sentencing Judge took into account the facts that this was one very serious course of offending, the offending occurred on the one occasion over an extended period of time from 7.30 pm to 10.30 pm and it involved two locations.  His Honour acknowledged that there was a degree of overlap between the offences.  However, the precise basis of his Honour’s accumulation of the sentences he imposed for counts 1 and 2, counts 3 to 9, and count 10 is difficult to discern. His Honour’s overriding concern appears to have been to ensure that the total sentence he imposed on the appellant was sufficiently severe to reflect the serious criminality of the appellant’s course of conduct and to protect the community from the appellant.  In so doing he has failed to give sufficient weight to the extent to which the whole of the offender’s conduct was interrelated and interdependent.

[42]    The following principles are well established.  First, s 50 of the Sentencing Act creates a prima facie rule that terms of imprisonment are to be served concurrently unless the court “otherwise orders”.[4]  There is no fetter on the discretion exercised by the Court and the prima facie rule can be displaced by a positive decision.[5]  Secondly, it is both impractical and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether the sentences should be ordered to be served concurrently or consecutively.[6]  The assessment is always a matter of fact and degree. Reasonable minds might differ as to the need for cumulation.  Often there will be no clearly correct answer.[7]  Thirdly, an offender should not be sentenced simply and indiscriminately for each crime he is convicted of but for what can be characterised as his criminal conduct.[8]  The sentences for the individual offences and the total sentence imposed must be proportionate to the criminality in each case.[9] 

[43]    The application of these principles to cases of sexual offending is often difficult because the essence of a lot of sexual offending is to be found in the commission of numerous sequential acts of a violent, degrading or humiliating kind, each of which constitutes a further invasion of the rights and wellbeing of the victim.[10]  Each offence may involve an additional violation of the victim and supply a significant individual contribution to the aggregate trauma and debasement of the victim.[11]  This is particularly so where there is a sustained attack on the victim over a number of hours and the offender is well aware of the victim’s continued resistance and ongoing distress.  Such factors tend to be appropriately weighed in the exercise of the sentencing discretion in favour of cumulation where the most serious count is but one component of an aggregation of discrete and distinct acts of sufficient criminality which together contributed to the debasement and humiliation of the victim.  Indeed, it is often necessary for there to be a degree of cumulation for multiple sexual or violent offences of such gravity that total concurrency would fail to do justice.[12]

[44]    However, the overriding concern is that the sentences for the individual offences and the total sentence imposed be proportionate to the criminality of each case.[13]  Concurrency may be appropriate because the crimes which gave rise to the offender’s convictions are so closely related and interdependent.  What is necessarily required in every case is a sound discretionary judgment as to whether there should be cumulation or concurrency.[14]

[45]    The sentence which the sentencing Judge imposed for count 10 on the indictment, deservedly was a severe sentence of imprisonment.  It was a severe sentence of imprisonment because of the context in which the crime was committed.  That context included the deprivation of CR’s liberty, robbing her of her motor vehicle, taking her to a remote location and assaulting her with a metal jack handle and numerous other violent and sexual assaults over a period of three hours.  The appellant also received significant sentences of imprisonment for these other crimes.  He did so in part because the appellant’s motive for committing these other crimes was that he wanted to have sexual intercourse with the victim and a number of the crimes were committed in preparation for the most serious crime of penile vaginal sexual intercourse without consent.  All of these crimes were closely related in time and location and were highly interdependent.  In the circumstances it was inappropriate for the sentencing Judge to direct that the sentence of 14 years imprisonment which he imposed for count 10 be served wholly cumulatively on the sentences of imprisonment he imposed for counts 1 to 9 on the indictment.

Ground 2 – The total sentence was manifestly excessive

[46]    The second ground of appeal must also succeed.  We find that the total sentence or 21 years imprisonment was clearly and obviously, and not just arguably, excessive.[15]

[47]    Although we agree the sentencing judge was correct in categorising the appellant’s conduct as being in the most serious category of cases of this kind, the offending in our view does not represent the worst category of cases of this kind when compared to other cases in this category.  The objective seriousness of the appellant’s conduct is demonstrated by the following.  The appellant was motivated by anger.  He engaged in criminal conduct because of its functional value to him.  He committed these crimes to soothe his rage and to display his physical power.  Although the appellant’s crimes were opportunistic his conduct nonetheless involved some planning and forethought.  He quickly devised a plan to abduct CR.  He abducted her off a public street.  He tricked her into going to her motor vehicle and he used violence to force CR into her motor vehicle.  He robbed her of her motor vehicle.  He used an offensive weapon to assault the victim.  He prevented CR from escaping on a number of occasions.  His attack upon her was sustained over a period of three hours and involved multiple sexual offending of different kinds and ongoing violent assaults.  Each sexual offence committed by the appellant against CR contributed to her trauma.  She was in a state of terror throughout the attack on her.  She had to jump out of a moving motor vehicle in order to escape from the appellant.  But for CR’s escape it is likely that the appellant would have committed further sexual offences against her.  She suffered severe and ongoing emotional trauma.  The appellant showed little remorse and he has very little insight into his offending.  The appellant’s offending was predatory and horrific.  CR was subjected to very degrading conduct.

[48]    However, the present case falls within a less serious level or range of offending than cases such as Hampton v The Queen[16] where a total sentence of 21 years imprisonment was imposed on the offender for his multifaceted attack on one of the victims in that case.  This case is distinguishable from Hampton v The Queen for the following reasons.  The plan the appellant devised was developed on the spur of the moment and was unsophisticated.  The appellant did not abduct the victim after a failed attempt to abduct another person.  He did not insert an object into the victim’s vagina. The victim herself was not forced to engage in any degrading conduct upon the appellant.  She was not tied up while she was naked and kept in such a manner so she could be sexually assaulted again at a later time.  She was not attacked on two discrete occasions.  While the appellant’s offending was brutally violent, it was not sadistic.  He was not gratified by the trauma and humiliation suffered by the victim.

[49]    In the circumstances the appeal against the total sentence imposed on the appellant is allowed.

Re-sentence

[50]    The appellant is re-sentenced as follows.

[51]    All of the individual sentences imposed by the sentencing Judge for each count on the indictment are set aside.  The appellant is re-sentenced as follows.

Count 1, imprisonment for three years.

Count 2, imprisonment for four years six months.

Count 3, imprisonment for two years three months.

Count 4, imprisonment for nine months.

Count 5, imprisonment for three years.

Count 6, imprisonment for four years six months.

Count 7, imprisonment for six years.

Count 8, imprisonment for two years three months.

Count 9, imprisonment for five years three months.

Count 10, imprisonment for 10 years six months.

[52]    We have determined the above sentences by allowing a discount of 25 per cent on each of the sentences set out in par [5] above for the appellant’s pleas of guilty.

[53]    The sentences for counts 1 and 2 are to be served concurrently giving a total effective sentence of four years and six months imprisonment for those counts.  The sentences for counts 3 to 9 inclusive shall be served concurrently giving a total effective sentence of six years imprisonment for those counts. 

[54]    Four years of the total sentence of imprisonment of six years imposed for counts 3 to 9 inclusive shall be served cumulatively on the sentence of 10 years and six months imprisonment for count 10 on the indictment, giving a total effective sentence of 14 years and six months imprisonment.  Three years and six months of the total sentence of imprisonment imposed for counts 1 and 2 shall be served cumulatively upon the total sentence of 14 years and six months imprisonment which has been imposed for counts 3 to 10 on the indictment.  This gives a total effective sentence of 18 years imprisonment for counts 1 to 10 on the indictment.

[55]    We fix a non-parole period of 13 years.  Both the total effective sentence of imprisonment of 18 years and the non-parole period are back dated to commence on 23 June 2008 to reflect the time that the appellant has already been in prison for his crimes.

[56]    In passing a total sentence of 18 years imprisonment with a non-parole period of 13 years we have had regard to the fact that the offending was in the most serious category of cases of this kind.  We have also taken into account the appellant’s subjective circumstances.  We have given considerable weight to punishment and specific and general deterrence.  Women in the community must be protected from such crimes and the offender and others must be discouraged from committing such crimes in the future.

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[1] D Ross, Crime par [19.2155].

[2] R v SBL [1999] 1 VR 706.

[3] R v SBL [1999] 1 VR 706 per Batt JA at 726; OAA v R [2010] VSCA 155 per Maxwell P and Weinberg JA at par 45.

[4] Hampton v The Queen [2008] NTCCA 5 at par [35].

[5] Miles v The Queen [2001] NTCA 9.

[6] Attorney – General v Tichy (1982) 30 SASR 84 per Wells J at 92 – 93.

[7] Murphy v The Queen [2005] NTCCA 15 at par [26].

[8] Attorney – General v Tichy (1982) 30 SASR 84 per Wells J at 92 – 93.

[9] Murphy v The Queen [2005] NTCCA 15 at par [26].

[10] R v O’Rourke [1997] 1 VR 246 at 252.

[11] R v Richardson (unreported, VCCA, 30 April 1992) at 11.

[12] R v O’Rourke [1997] 1 VR 246 at 253.

[13] Murphy v The Queen [2005] NTCCA 15 at par [26].

[14] R v O’Rourke [1997] 1 VR 246 at 253.

[15] Dinsdale v The Queen (2000) 202 CLR 321 at [6]; Hampton v The Queen [2008] NTCCA 5 at [51].

[16] Hampton v The Queen [2008] NTCCA 5.