Crimes Act 1900 (ACT) ss.92A-92D, 451

Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447

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

Mallinder (1986) 23 A Crim R 179

The Queen v Mills (1977) 16 SASR 581

The Queen v Shannon (1979) 21 SASR 442

Schumacher v The Queen (1981) 3 A Crim R 441

The Queen v Hudson [1985] FCA 442; (1985) 8 FCR 228

The Queen v Smith and Smith (1988) 39 A Crim R 48

The Queen v Holder and Johnston (1983) 13 A Crim R 375

The Queen v Tichy (1982) 6 A Crim R 117

Omar Rushden and Thomason [1991] FCA 421; (1991) 55 A Crim R 373

Solicitor for the respondent : The Director of Public

Prosecutions (ACT)

The Court orders that:

1. The sentence imposed by the Supreme Court of the Australian

Capital Territory be varied so as to order that there be a

non-parole period of 11 years 2 months and 18 days commencing

on 3 November 1989 in lieu of the non-parole period set by

the sentencing Judge.

2. Subject to paragraph 1 hereof, the appeal be dismissed.

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

DAVIES, VON DOUSSA AND HIGGINS JJ This is an appeal against sentence. The sole ground of appeal is that the sentence was manifestly excessive.

2. The appellant was convicted in the Supreme Court of the Australian Capital Territory upon pleas of guilty entered by him in the Magistrates Court, and adhered to before the sentencing Judge, on two charges of engaging in sexual intercourse without the consent of the victim, knowing she was not consenting, contrary to s.92D(1) of the Crimes Act 1900 and on one charge of having in his possession a prohibited weapon, namely a 22 calibre pen pistol.

3. The two counts of rape arose out of events which occurred in the early hours of 10 January 1993. The first count alleged an act of penile penetration of the victim's vagina. On this count he was sentenced to 12 years imprisonment, that being the maximum penalty provided by s.92D(1). A non-parole period of 8 years was fixed. The appeal is against that sentence. The facts upon which the second count of rape were based were that in the course of the rape the subject of count 1 the appellant inserted his finger into the victim's anus. On that count the sentencing Judge deemed it inexpedient to impose a separate penalty. The single penalty on the first count was intended to encompass the totality of the criminality involved in both sexual offences. On the charge of possessing a prohibited weapon a sentence of 6 months imprisonment to be served concurrently with the sentence of 12 years was imposed.

4. It is contended on the appellant's behalf that the offence of rape for which he was sentenced, whilst a serious case of rape, was not such that the maximum prescribed penalty should have been imposed. Where a penal statute prescribes a maximum penalty, it is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-452. However as Mason CJ, Brennan, Dawson and Toohey JJ observed in Veen v The Queen (No.2) [1988] HCA 14; (1987-1988) 164 CLR 465 at 478:

"That does not mean that a lesser penalty must be imposed if it is

possible to envisage a worse case; ingenuity can always conjure

up a case of greater heinousness. A sentence which imposes the

maximum penalty offends this principle only if the case is

recognisably outside the worst category."

In Mallinder (1986) 23 A Crim R 179 at 180 Murray J considered that the maximum sentence is justified only for the worst example of an offence likely to be encountered in practice. See also The Queen v Mills (1977) 16 SASR 581 at 588 per Jacobs J.

5. Before considering the facts it is appropriate to refer to the provisions of the Crimes Act 1900 under which the appellant was charged. Part IIIA creates a range of statutory sexual offences. The maximum penalties vary according to the circumstances of aggravation which accompany the commission of the offence. Section 92A enacts offences of sexual assault in the first degree. A person who inflicts grievous bodily harm upon another person with intent to engage in sexual intercourse with that other person, or with a third person who is present or nearby, is guilty of an offence punishable on conviction by imprisonment for 17 years. If the offence is committed by a person acting in company with another, it is punishable by imprisonment for 20 years.

6. Section 92B enacts offences of sexual assault in the second degree. A person who inflicts actual bodily harm upon another person with intent to engage in sexual intercourse with that other person, or third person who is present or nearby, is guilty of an offence punishable on conviction by imprisonment for 14 years. If the offence is committed in company with another person, the maximum punishment is imprisonment for 17 years. Section 92C enacts offences of sexual assault in the third degree. A person who unlawfully assaults, or threatens to inflict grievous or actual bodily harm upon, another person with intent to engage in sexual intercourse with that other person, or with a third person who is present or nearby, is guilty of an offence punishable, on conviction by imprisonment for 12 years. If the offence is committed in company with another person, the maximum penalty is increased to imprisonment for 14 years. Section 92D enacts offences of sexual intercourse without consent. Relevantly, s.92D(1) provides:

"A person who engages in sexual intercourse with another person

without the consent of that other person and who knows that that

other person does not consent, or who is reckless as to whether

that other person consents, to the sexual intercourse is guilty of

an offence punishable, on conviction, by imprisonment for 12

years."

If the conduct proscribed by s.92D is committed in company with another person, the maximum penalty is imprisonment for 14 years.

7. It will be noted that in the structure of these offences, if a person engages in sexual intercourse with another without the consent of that person in circumstances which are accompanied by infliction of injury on the victim, or in company with another person, the appropriate charge would lie not under s.92D(1) but under one of the other provisions which carries with it a greater maximum period of imprisonment than 12 years.

8. In the present case the circumstances of the rapes were very serious, even apart from the antecedent criminal history of the appellant to which reference will later be made. The victim was aged 20. On the evening of 9 January 1993 she had been with friends in Civic, Canberra. She met with other people and visited a number of night spots in the Civic area. She became separated from her friends. Unable to find anyone to convey her to her home she began to hitchhike to the suburb of Theodore. At about 4.00a.m. on 10 January 1993 she was picked up by the appellant near Capital Hill. The appellant was driving a two door Datsun sedan. He was alone. The victim got into the front passenger seat. The appellant began driving in the appropriate direction towards the southern suburbs. Whilst travelling along the Tuggeranong Parkway he pulled off to the side of the road and stopped the car. He leant towards the back seat and produced a knife which he held to the victim's neck. She started to cry. He told her that if she did as she was told she would be alright. From her demeanour the appellant realised she was terrified. The victim offered $10 which was in her purse but he did not take it. In addition to the knife, the appellant had at hand a thin rope which he then used to tie each of the victim's hands to the seat in which she was sitting. He ordered her to push the back of the seat down to a horizontal position which she did. In this position she was unable to see the route taken by the appellant as he then drove off.

9. The appellant drove to a dirt track off the Monaro Highway. In the course of the journey the victim endeavoured to free her wrists but was unable to do so. When the appellant stopped the car he put his hand through her clothing and touched her breast. He then cut the rope from around her wrists and told her to undress. She initially refused. He pointed to the knife which was visible on the dashboard of the car and said words to the effect "I know how to use it. Don't make me use it." The victim removed her clothes. The appellant commenced to remove his clothing in the car, but then got out of the vehicle to complete that process, again pointing to the knife telling the victim not to try anything because the knife was there. He told her initially to lie on her stomach which she did, then to roll over. Again she complied. He then lay on top of her and inserted his penis in her vagina. She was crying. He licked her breasts. When she resisted his attempts to kiss her, he again threatened her with the knife. When she allowed him to kiss her he forced his tongue into her mouth and at about this stage he also inserted his finger into her anus. In the appellant's words when he did this "she started freaking out". She cried out in pain and started fighting him. He removed his finger. He then asked her to give him a love bite. She refused. He threatened to reinsert his finger in her anus. She then gave him a bite on the neck, and then two more at his request. Through these events he was continuing the act of vaginal intercourse, and was also asking her intimate questions about her previous sexual experience. Finally he ejaculated inside her.

10. The appellant told the victim to get dressed, which she did, and he dressed. He then drove back towards Tuggeranong. As he did so he said that he had been in gaol before, and suggested that he drive the victim to the police station to save her the trouble of calling up the police. The victim however requested to be let free. The appellant stopped his car and she alighted. He drove off a short distance and stopped. The victim ran to a nearby house and summoned the police.

11. The appellant was arrested 11 days later. He was charged and remanded in custody. He had been in custody since 21 January 1993. He was sentenced on 9 August 1993, and the sentence of 12 years imprisonment was ordered to run from 21 January 1993.

12. After he was apprehended by the police the appellant was fully cooperative. In a lengthy interview before his formal arrest he made frank admissions. He pleaded guilty to the 2 counts of rape at the first opportunity in the Magistrates Court. Although the appellant pleaded guilty, in the Supreme Court the victim briefly gave evidence on certain aspects of the crime. On instructions from the appellant the victim was not cross-examined.

13. The third charge relating to the pen pistol was laid in consequence of the police finding such a weapon in the appellant's car when it was searched before his arrest. Bullets were also found. The appellant said that he had acquired the gun after the rape for the purpose of committing suicide.

14. The appellant's statement to the victim that he had been to gaol before was a reference to his antecedent criminal history. The appellant was born on 11 September 1964. On 8 July 1989 when he was then aged 24, he committed a rape on a young woman in circumstances which bear close similarity to many of the features of the offences now under consideration. The following summary of the facts of that rape appears in the sentencing remarks of the learned Judge in the Supreme Court of the Australian Capital Territory who sentenced the appellant on 3 November 1989 to 6 years imprisonment with a non-parole period of 2 1/2 years. His Honour said:

"The facts of the offence are very serious indeed. The victim of

the offence was only 18 years of age at the relevant time, and she

was picked up by the accused late at night with an offer of a lift

in his car, but instead of merely giving her a lift, the accused

drove off to an unknown location in the Lyneham area or

Ginninderra area and made threats immediately to the victim to the

effect that she must do what she was told and she would not get

hurt...He stopped the car in a remote spot, put her in the back

seat, made her put her hands behind her head and told her to leave

them there. He removed the girl's jeans and underwear...and

proceeded then to engage in intercourse with her...without her

consent. And all the time his acts were accompanied by a threat

that she was not to make it war or hard for him or he would slit

her throat and kill her like the rest. Intercourse was forced

upon the girl...I should have added that he also gagged the girl

with a gag that he happened to have in the car. After the offence

had been committed, he threatened to kill her if she told anyone

about what had happened, but it must be said that he drove her

home, got her phone number and showed some concern to get her

forgiveness, and showed some concern about the serious thing that

he had done."

In the course of committing that offence the appellant did not produce a knife or other weapon, but at one point he punched the victim in the stomach. The present offences were rendered the more serious by the use of the knife and rope to restrain the victim whilst he conveyed her to a remote spot.

15. The appellant had been released from custody on parole on 2 May 1992. His parole was not due to expire until 2 November 1995. The present offences were committed whilst he was on parole for an offence of an almost identical nature.

16. In sentencing the appellant, after referring to circumstances both of the offences before the Court, and of the rape committed in 1989, the learned sentencing Judge said:

"The question is, looking at the totality of the criminality

involved so far as the sexual offences are concerned, where does

the criminality fall in the range of sentences open to this court?

The maximum available is 12 years imprisonment. I take such a

serious view and indeed any right-minded person would take the

view that these acts by this accused come very close to being in

the worst class of sexual offences of their type. I take account

of the submissions that have been put on behalf of the accused,

particularly that he pleaded guilty at all material times and it

was no fault of his that she was forced to give evidence anyway,

but as I say, specifically on instructions his counsel did not

cross-examine.

It is not a place for this court to preach any more about the

revulsion that the community feels about this sort of behaviour.

I propose to impose the maximum penalty and reflect that it is not

the worst class of case that one can imagine but it comes close to

it. In relation to the first offence of sexual intercourse

without consent, being the vaginal penetration of the victim, I

sentence the prisoner to 12 years imprisonment. In relation to

the second offence of digital penetration, I deem it inexpedient

to impose an additional penalty. As I say, I have taken account

of the gravity of that behaviour in the sentence which I have

imposed in respect of the first offence to which the accused

pleaded guilty."

17. We do not think his Honour was in error in describing the circumstances of the appellant's offending as coming very close to being in the worst class of sexual offence under s.92D(1), that is in the class of rape offences which do not involve circumstances of aggravation of the kind that would attract a maximum penalty above 12 years.

18. The offence was committed in circumstances that must have placed the victim in extreme terror. The terrifying conduct extended over a lengthy period. The evidence suggests that it was close to an hour between the time when the knife was first produced until the abduction came to an end. It takes little imagination to understand that the horror of the experience, and fear and anxiety, will remain with the victim and greatly interfere with her enjoyment of life.

19. It is not correct to say, as one of the submissions made on the appellant's behalf suggested, that the act of rape was not accompanied by any degrading acts beyond those which are inevitably involved in an offence against s.92D(1). Such a suggestion completely overlooks the gravity of the second count of rape, the requirement under threat that the victim shed her clothing, the kissing activity, and the appellant's questioning of the victim about her prior sexual experience.

20. Once the sentencing Judge reached the conclusion that the offence was very close to the worst class of offence under s.92D(1), the gravity of the offence warranted a penalty in the top bracket of the prescribed range. In determining what that sentence would be it was proper for the sentencing Judge to have regard to the antecedent criminal history. The commission of the acts of rape so soon after the appellant was released from gaol and whilst he was still on parole, for an almost identical offence, demonstrated a need for a heavy penalty to protect the community by way of personal and general deterrence and by way of preventive detention. Mere preventive detention is impermissible; the penalty must be proportionate to the seriousness of the crime: Veen v The Queen (No.2). But, within the range of penalty appropriate to the seriousness of the offence, the protection of the public is a matter to which the sentencing Judge is entitled to attach great weight. In Veen v The Queen (No.2) at 477-478 Mason CJ, Brennan, Dawson and Toohey JJ said:

"...the antecedent criminal history of an offender is a factor

which may be taken into account in determining the sentence to be

imposed, but it cannot be given such weight as to lead to the

imposition of a penalty which is disproportionate to the gravity

of the instant offence. To do so would be to impose a fresh

penalty for past offences: Director of Public Prosecutions v.

Ottewell (1970) AC 642 at 650. The antecedent criminal history is

relevant, however, to show whether the instant offence is an

uncharacteristic aberration or whether the offender has manifested

in his commission of the instant offence a continuing attitude of

disobedience of the law. In the latter case, retribution,

deterrence and protection of society may all indicate that a more

severe penalty is warranted. It is legitimate to take account of

the antecedent criminal history when it illuminates the moral

culpability of the offender in the instant case, or shows his

dangerous propensity or shows a need to impose condign punishment

to deter the offender and other offenders from committing further

offences of a like kind. Counsel for the applicant submitted that

antecedent criminal history was relevant only to a prisoner's

claim for leniency. That is not and has never been the approach

of the courts in this country and it would be at odds with the

community's understanding of what is relevant to the assessment of

criminal penalties."

21. Evidence was placed before the sentencing Judge from two psychiatrists. One of them, Dr Veness, had seen the appellant in connection with the sentencing process in 1989, and the appellant had consulted him on two occasions between his release from prison and his reoffending. Both psychiatrists were of the opinion that a very real possibility existed that the appellant would reoffend if he did not receive appropriate treatment, and even with treatment the possibility would still exist. Dr Veness in evidence said that he had no confidence that if the appellant did reoffend that the gravity of his conduct would not escalate.

22. Dr Veness obtained from the appellant a history that shortly after completing his schooling he began to hear voices. Dr Veness considered the appellant had a schizoid personality disorder. He displayed abnormal withdrawal from the society of other people, paranoid fears and suspicions about the intentions of other people, and a burning resentment that society snubs and rejects him. Notwithstanding the history of auditory hallucinations, Dr Veness considered that there were not sufficient symptoms and signs at the present time to come to a diagnosis of schizophrenia or other psychotic disorder but he considered the possibility was such that the appellant should have 6 monthly checks as a frank psychosis could emerge.

23. The very serious nature of the rapes for which the appellant was to be imprisoned, and these medical opinions, justified the sentencing Judge in fixing a sentence in the order of 12 years, and a long non-parole period.

24. On the appellant's behalf it is contended that a penalty of 12 years imprisonment, being the maximum sentence prescribed for an offence under s.92D(1), allows no credit to the appellant for the fact that he showed remorse immediately following the commission of the offence (by offering to drive the victim to the police station), for cooperating with the police and for pleading guilty at the first available opportunity.

25. In The Queen v Shannon (1979) 21 SASR 442 at 452-453 King CJ articulated 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."

These propositions have been accepted as correctly stating the approach which should be followed by a sentencing Judge in the Australian Capital Territory: Schumacher v The Queen (1981) 3 A Crim R 441, The Queen v Hudson [1985] FCA 442; (1985) 8 FCR 228, and The Queen v Smith and Smith (1988) 39 A Crim R 48. The propositions do not establish that a plea of guilty inevitably, or of itself, requires a reduction in the severity of the sentence. The weight which is to be given to a plea of guilty in favour of the convicted person will depend on all the circumstances of the case. As Street CJ said in The Queen v Holder and Johnston (1983) 13 A Crim R 375 at 387, it is impossible to lay down arbitrary rules regarding the weight to be attributed to a plea of guilty.

26. Where a plea of guilty results from remorse, or repentance, that state of mind about the offending may justify a conclusion that the convicted person is already "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": R v Jabaltjari (1989) 64 NTR 1 at 14-15 per Asche CJ. However that is not a conclusion which arises in the present case. Immediately following the first rape in 1989 the appellant showed remorse and concern for his victim. The fact that he did so after the 1993 rapes cannot be accepted as an indication that the recognition of his wrongdoing will deter him from reoffending again.

27. Independent of the consideration just mentioned a plea of guilty may attract leniency particularly in cases of sexual offences like rape or where young children are involved where the plea of guilty may be indicative of compassion for the victim, and of a desire to mitigate the suffering of the victim by avoiding the anguish and distress involved in giving evidence at a trial. Where cooperation with the investigating authorities, and a plea at an early stage, is motivated by considerations of this kind it is in the public interest that a plea of guilty be given significant weight.

28. In the present case certain answers by the appellant in the course of his interrogation by the police, and his conduct once he was charged indicated that his plea was so motivated. At first sight, there appears to be force in the submission that a sentence which equates to the prescribed maximum for an offence under s.92D(1) does not give due recognition to the plea of guilty. However the force of the argument is weakened considerably when it is recognised that the sentencing Judge said that he did take into account the plea of guilty, and that in imposing the "maximum sentence" on the first count he found it inexpedient to impose an additional penalty on the second count. Further, the sentence imposed for the possession of a prohibited weapon, an offence which can barely be said to be an offence which arose out of the same course of conduct as the sexual offences (cf The Queen v Tichy (1982) 6 A Crim R 117), was ordered to be served concurrently with the sentence of 12 years. Nevertheless, if these were the only considerations, it would be borderline whether the sentence evidences sufficient recognition of the benefits in the public interest that flow to the victim of crimes of this kind from frank cooperation with the police and from a plea of guilty.

29. There is however a further consideration which in our view makes it impossible to conclude that the sentence was manifestly excessive. This consideration arises from the fact that the rapes were committed whilst the appellant was on parole. Until 2 November 1995, by virtue of s.24(2)(a) of the Parole Act 1976, the appellant remained under sentence of imprisonment. Section 24(2) provides:

"24(2) Where a person has been released from prison on parole,

whether under this Act or under the repealed Ordinance-

(a) he shall be deemed to be still under sentence of

imprisonment, and not to have served any period of

imprisonment that remained to be served at the commencement

of the parole period, until the parole period expires

without the parole order being revoked or until he is

otherwise discharged from that imprisonment; and

(b) if the parole period expires without the parole order being

revoked, he shall be deemed to have served the period of

imprisonment that remained to be served at the commencement

of the parole period and to have been discharged from that

imprisonment."

Upon his release on parole on 2 May 1992 the appellant had 3 1/2 years of the 1989 sentence still to be served in the event that the parole order under which he gained his release was revoked. The imposition of a further sentence of imprisonment for an offence committed during the parole period automatically revoked the parole order: see ss.8(3) and 22(2) of the Parole Act.

30. As events happened, the appellant was in custody for the period from 21 January 1993 until he was sentenced on 9 August 1993, a period of 200 days. The commission of the offences on 10 January 1993 was a breach of the conditions of the order. Action could have been taken to have the parole order revoked by the Parole Board under s.25 before sentence was imposed for those rapes, but that did not happen. Perhaps that step was thought unnecessary as the appellant was in any event in custody. Had the parole been revoked, the appellant would have been in gaol serving the sentence for the first rape. As it was he was in gaol in relation to proceedings for the 1993 offences, and on being sentenced for those offences on 9 August 1993, under s.451 of the Crimes Act 1900, that time in custody is to be reckoned as a period of imprisonment served under the 12 year sentence then imposed. It may be assumed that it was for this reason that it was ordered that the sentence of 12 years imprisonment commenced to run from 21 January 1993.

31. The practical effect of ordering that the further sentence of imprisonment run from 21 January 1993 was to make the period of 3 1/2 years still to be served under the sentence for the 1989 rape concurrent with the punishment for the 1993 rapes. When this factor is brought to account it cannot be said that the sentence imposed on the rapes in 1993 was excessive.

32. It appears that the requirements of s.8(4) of the Parole Act 1976 were not brought to the attention of the sentencing Judge at the time of sentence. That section requires that where a further sentence is imposed whilst a person is serving a sentence of imprisonment under a previous sentence, a non-parole period fixed at the time of the imposition of the further sentence shall be taken to have commenced on the date on which the previous sentence was imposed. It has been implicitly acknowledged by this Court in Omar Rushden and Thomason [1991] FCA 421; (1991) 55 A Crim R 373 that for the purposes of s.8(4) a person is relevantly "serving" a sentence of imprisonment under a previous sentence where the offence which attracts the further sentence is committed whilst the offender is on parole under the previous sentence. Accordingly, s.8(4) required that the non-parole period fixed at the time of the imposition of the sentence on 9 August 1993 was required to commence on 3 November 1989. The order of the Court however directed that the non-parole period of 8 years to run from 21 January 1993. To bring about a non-parole period ending on 21 January 2001 as the sentencing Judge intended, s.8(4) required that there be a non-parole period of 11 years 2 months and 18 days commencing on 3 November 1989. That a non-parole period so fixed would approximate the head sentence of 12 years imposed under the further sentence is an anomaly required by the terms of s.8(4). It will be noted that in Omar Rushden and Thomason the non-parole period there fixed in accordance with s.8(4) exceeded the head sentence: see p.381. The order of the Court disposing of this appeal should rectify that irregularity in exercise of the general power arising under s.28 of the Federal Court of Australia Act 1976.

33. It is not contended on the appellant's behalf that the non-parole period was inappropriate if the head sentence is upheld.

34. The sentence under appeal should be varied to provide that there be a non-parole period of 11 years 2 months and 18 days commencing on 3 November 1989. In all other respects the appeal should be dismissed.