Criminal Law - Judgment and punishment - Sentence - Other matters - Generally - Imposition of global sentence pursuant to statutory power - Compliance with sentencing principles.

Sentencing Act 1997 (Tas), s11(1).

Pearce (1998) 194 CLR 610; Johnson (2004) 78 ALJR 615, considered.

Criminal Law - Judgment and punishment - Sentence - Factors to be taken into account - Other matters - Manifestly inadequate sentence - Correct method of determination of sentence for multiple counts.

Sentencing Act 1997 (Tas), s11(1).

R v D [1997] SASC 6350; (1997) 69 SASR 413, referred to.

Judgment Number: [2005] TASSC 15

DIRECTOR OF PUBLIC PROSECUTIONS v SHANE RONALD FARMER

The sentence of 8 years' imprisonment is quashed and in lieu a sentence of 10 years' imprisonment to commence on 1 October 2004, with a non-parole period of 6½ years, is ordered.

DIRECTOR OF PUBLIC PROSECUTIONS v SHANE RONALD FARMER

1 The Director of Public Prosecutions has appealed against a sentence of imprisonment of eight years, with a non-parole period of five years, imposed upon the respondent's conviction on 14 counts of sexual misconduct committed over an 11 year period. During that time the respondent had sexually assaulted or raped seven young women who had been employees or patrons of night clubs operated by him. On 19 December 2003, the respondent had earlier been sentenced by the same judicial officer to a 15 month term of imprisonment with a nine month non-parole period for his part, as an accessory, in the rape of another young woman which had occurred at one of the night clubs in November 1995, a time encompassed by this appeal. Thus the total penalty imposed for a course of conduct occurring between 1990 and 2001 was that of nine years three months' imprisonment, with a combined non-parole period of five years nine months. The principles of totality, both in regard to the overall sentence to be served and as representing a response to a course of conduct, require this Court to take that sentence into account. The learned sentencing judge made reference to this conviction and took it into account in his determination of sentence. The sole ground of appeal advanced by the Director was that the learned sentencing judge:

"... erred in law in that he imposed a sentence which was manifestly inadequate in all the circumstances of the case."

2 The respondent, aged 49 years at the time of sentence, had been the operator of night clubs in Hobart and Launceston and used his status and premises as a means of preying on young women employees or patrons, spiking their drinks and committing sexual crimes on them. The general course of conduct, although the reasons for ruling encompassed additional allegations not the subject of these convictions, has been outlined in [2004] TASSC 104 and requires no detailed restatement. The pleas of guilty were to rape (6), aggravated indecent assault (1), abduction (2), indecent assault (1), administering a drug with intent to facilitate the commission of the crime of rape (3), and attempting to so do (1). The ages of the victims ranged between 16 and 21. The course of predation was prolonged and possessed similar characteristics. The learned sentencing judge referred to that course of conduct in the following terms:

"Your criminal conduct was predatory, persistent and committed with an arrogant and contemptuous disregard for the welfare and dignity of your victims. At the time you raped the 16 year-old in 1990, you were about 20 years older than her. You are 27 years older than your last victim. You were the person with ultimate control over the management of these nightclubs and thereby in a responsible position. The young and vulnerable patrons were entitled to expect you to exercise proper control over the premises. To use them yourself as a place where you could drug and sexually attack young females was an abrogation of your responsibility. I see nothing mitigatory in the circumstances surrounding the commission of these crimes."

3 The effect on the victims as evidenced through the presentation of victim impact statements and accompanying psychological and psychiatric assessments, has been deep and of long standing.

4 The learned sentencing judge, in his comments on passing sentence, addressed the following matters:

(1) The absence of prior convictions, although having referred to the 1995 matters, he observed that:

"... today any claim to previous good character must be considered in the light of the fact that for a decade between 1990 and 2001 you were engaged in criminal conduct."

(2) The entry of the plea of guilty. The learned sentencing judge accepted the effect of the pleas, but not that they had "saved the victims from having to give evidence" because of the cross-examination of the complainants at a preliminary hearing ([2004] TASSC 104). The sentence did not reflect an increased penalty but simply that the additional matter did not entitle the respondent to the benefit of a mitigating matter (Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186). His Honour also noted that the pleas were only confirmed shortly before trial.

(3) The desire on the part of the respondent to rehabilitate himself and the subjective circumstances of his young family. However, his Honour did not accept that the respondent had indicated "remorse in the sense of a deep regret and repentance for wrongs done to others".

(4) The learned sentencing judge gave little weight to the issue of delay in the commencement of prosecutions, dealing with the question in the following terms:

"Your counsel claimed that you were entitled to mitigation because of the delay in bringing the prosecution in the cases of the two young women who made reports shortly after the event, but the files were lost. These reports were made in 1995 and 1996. It is a curious circumstance that not one but two files were mislaid. In the case of one victim you were interviewed by police and admitted having sexual intercourse with her, but lied about the circumstances in which that occurred. Delay was a matter that your counsel relied upon in the Court of Criminal Appeal upon your appeal against sentence imposed for aiding and abetting rape. There it was accepted, as is the law, that anxiety and stress caused by delay in bringing a prosecution may be relevant upon the imposition of sentence. Delay per se is not mitigatory, but in a case where delay has not been contributed to by the conduct of an accused, the circumstances that flowed from that delay might work in favour of the accused. With respect to the two women who complained to the police in 1995 and 1996, there is no significant circumstance of mitigation that arises out of any delay in bringing the prosecution. Indeed, you committed a number of crimes on two victims after those complaints were made to police. I do not regard the period between the time you were charged and the time you entered these pleas as involving any delay on the part of the prosecuting authorities. Much of that time was taken up by litigation generated by you."

The learned sentencing judge was correct in adopting this approach.

(5) Little weight was afforded to the character evidence adduced at the sentencing hearing or the state of health of the respondent's parents.

5 The appellant contends that although there is no demonstrated error in principle, the result itself, rather than the approach taken, suggests either miscarriage or manifest inadequacy. The argument suggests that the appropriate methodology ought be consideration of the appropriate sentences for the individual crimes with an adjustment, through concurrence or overall assessment, to accommodate the principles of totality. With due respect to the argument, it would, in the circumstances here, be a non-productive exercise. The general approach suggested by the appellant has, in relation to a different sentencing issue, been rejected (R v D [1997] SASC 6350; (1997) 69 SASR 413). Totality is a reflection not of an artificial exercise, but of an attempt to evaluate overall criminal responsibility, achieve relativity and avoid the imposition of a "crushing sentence", leaving the offender bereft of future change (Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; Mill v R (1988) 166 CLR 59, Wise v R [1965] Tas SR 196).

6 The written submissions of the learned Director illustrate the difficulty associated with the suggested approach. The appropriate sentences suggested in the submissions are:

7 An identical four year sentence is suggested for each of the rapes, although their particular characteristics differ and some might warrant a greater sentence. A five year term for rape is, absent extenuating circumstances, not uncommon. A sentence of 35 years for the crimes of rape alone could, on the methodology suggested, be calculated. Equally the administration of drugs could be regarded as an aggravating matter to the commission of the primary crime. Counts 10 - 12 would result in a sentence of 5½ years, while counts 13 - 14 produce a lesser sentence although on one approach there is equal culpability. Two further problems arise. The first is public perception with associated loss of confidence in the sentencing process, and the second is that of difficulty in determining the assessment of reduction to accommodate totality. The former would wrongly create a false impression that an otherwise justified sentence of 28 - 35 years' imprisonment is to be reduced simply because of the subjective characteristics of the offender or disdain for the harm caused to the victims. The latter requires a process of "intuitive synthesis" which is incapable of precise calculation. Questions of quantification of reduction or factors determining variation to accommodate totality are not answered by the suggested methodology. For example, the suggested methodology does not answer how the commencing sentence ought be varied or which factors would operate in any recalculation. The sum of the parts, on the argument as advanced by the appellant ought be greater than the whole, but it would remain necessary to determine the whole. In relatively simple cases, especially where there is one episode of criminal conduct, it might be possible to achieve an acceptable sentence by use of concurrence, but such is not the case here. The problems raised by this appeal are consistency and relativity. Relativity might be ascertained by a comparison with other forms of criminal conduct. Thus some degree of relativity as between the crimes of murder, rape or attempted murder and rape might be achieved, but such comparison is made more difficult when dealing with multiple crimes committed over an extended period. That is not to suggest that the commission of multiple murders ought be treated as warranting less than a life sentence without parole where the number of deaths is less than those which were the subject of the sentence imposed on Bryant (22 November 1996). There it was appropriate to determine particular sentences for different crimes committed in the course of one episode.

8 The argument advanced by the appellant proceeds from an analysis of the reasoning employed by the High Court in Pearce (1998) 194 CLR 610 and Mill (supra) and developed in Johnson [2004] HCA 15; (2004) 78 ALJR 616. In Mill (supra), Wilson, Dean, Dawson and Toohey JJ adopted, at 62 - 63, as an accurate description of the principle of totality that stated in Thomas, Principles of Sentencing, 2nd ed (1979), 56 - 57 in the following terms:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."

9 Pearce involved problems associated with the practice of increasing a sentence for a single offence in order to take into account the totality of multiple offences and making the rest concurrent. There identical, but concurrent, sentences were imposed, raising the question whether the sentence "doubly punished" for conduct containing "common elements". There is no error in reducing a sentence attaching to a component of a series of criminal acts and making it cumulative. In Johnson, the High Court explained the relationship between Mill and Pearce in the joint judgment of Gummow, Callinan and Heydon JJ, when they stated, at par26:

"The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates (1998) 194 CLR 610 at 624 [45] per McHugh, Hayne and Callinan JJ. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. The trial judge here did not offend any of the principles stated in Mill or Pearce. His only error may have been to fail to state starting and ending dates, but this was neither to apply a uniquely Western Australian principle, nor otherwise to make an appealable error. What his Honour intended was obvious enough and did not fail in substance to give effect to the[Crimes] Act."

10 In a separate, but concurring, judgment, Gleeson CJ said, at par2:

"I also agree that the appellant failed to make good a number of arguments suggesting that the Supreme Court of Western Australia has systematically adopted an erroneous approach to the sentencing of federal offenders for multiple offences, or to the application of what is sometimes called the principle of totality. In particular, the submission that there is inconsistency between the principles stated in Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610, and that Pearce effectively eliminated one of the two alternative courses said in Mill to be available to sentencing judges (1988) 166 CLR 59 at 63, should be rejected. "

11 Complications raised by some legislative sentencing provision such as the Crimes Act 1914 (Cth) and the Crimes Act 1900 (NSW) statutes do not arise in this jurisdiction since the Sentencing Act 1997, s11, permits the imposition of a single sentence which would appear to reflect long-standing practice (Haines [1967] Tas SR (NC 10) at 265. See generally Sentencing in Tasmania, Warner, 2nd ed, 2.501 cf).

12 In this case, the approach suggested by the appellant as to an appropriate basis for testing inadequacy is not accepted.

13 The appeal ought be determined by the methods of "intuitive synthesis" (Williscroft [1975] VicRp 27; [1975] VR 292; AB v R [1999] HCA 46; (1999) 198 CLR 111; Ryan v R (2001) 206 CLR 267; Pavlic v R (supra)) with appellate error, even if undisclosed, to be manifest from the sentence itself (Lowndes v R [1999] HCA 29; (1999) 195 CLR 665), and the principle of consistency.

14 In Tasmania, sentences of 9 and 10 years' imprisonment have been imposed in cases where there have been acts of sexual abuse on a single victim over a prolonged period (Dare (Underwood J (as he then was) 28 June 1989); England 42/1989; Newall (Nettlefold J 11 November 1985). In Bell 35/1992 the Court of Criminal Appeal upheld a sentence of 12 years' imprisonment imposed on an offender with prior convictions who had raped and defiled a stepdaughter over some three years and sentences imposed on Brown (Wright J 4 April 1990) and Warren (Wright J 17 August 1995) were unassailed. Warner, 2nd ed, Table 13, sets out the range of global custodial sentences imposed for multiple counts of rape.

My research has not disclosed any comparable cases involving serial rapes of different complainants over an extended period as here. Sparkes (1997) 7 Tas R 227 involved the eventual imposition of an indeterminate sentence on a person who had raped or committed a crime with the intention of rape, on different victims over a long period of time. The sentence imposed on Watson and Curtis (2 December 1986 Cox J) involving a subsequent murder, is of little assistance, although it might represent the high end of the range of permitted penalties. There is no tariff for rape (Bowden 46/1968; Woore 30/1997; R v S (No 2) [1991] TASSC 22; [1991] Tas R 273), but consistency requires some recourse to comparison. In addition, here, regard ought be had to the sentence of 15 months previously imposed.

15 The sentence of 8 years' imprisonment itself manifests inadequacy. Had the respondent been sentenced at the one hearing on all of the acts pleaded to or found guilty of, a sentence of 12 years' imprisonment would have been appropriate. Allowing for the sentence of 15 months previously imposed and applying the principles associated with Crown appeals (Attorney-General (Tas) v McDonald [2002] TASSC 120; (2002) 11 Tas R 221), I would join with my colleague Evans J in upholding the appeal and determining the resentence at 10 years' imprisonment to commence as and from 1 October 2004, with a non-parole period of 6½ years.

DIRECTOR OF PUBLIC PROSECUTIONS v SHANE RONALD FARMER

16 The Director of Public Prosecutions appeals against a global sentence of eight years' imprisonment, with a non-parole period of five years, imposed upon the respondent upon his conviction on six counts of rape, one count of aggravated indecent assault, one count of indecent assault, two counts of abduction, three counts of administering a drug with intent to facilitate the commission of the crime of rape and one count of attempting to commit that crime.

17 The sole ground of appeal is that the sentence is manifestly inadequate.

18 The crimes were committed between 1990 and 2001. The respondent was 35 years of age at the time of the first crime and 46 years of age at the time of the last crime. Throughout the relevant period, the respondent controlled various nightclubs. His seven victims were young females who patronised or were employed in one or other of those clubs. The Director takes no issue with the way in which the learned sentencing judge summarised the circumstances of the crimes in relation to each victim in his comments on passing sentence. I set out the comments below under headings in which I have identified the victim involved in each incident with an initial and have listed the crimes committed in the course of the incident.

"You committed the first crime in 1990 when you took a 16-year-old patron to an office in the nightclub and told her that you were going to have sex with her. When she resisted you, you forced your penis into her mouth and committed the crime of rape."

S - Attempting to administer a drug with intent to facilitate the commission of the crime of rape. Indecent assault.

"Your next victim was a 19-year-old employee. She and other staff were having a drink after work one morning in 1993. You poured a white substance into her drink and when she protested, you said it would pep her up. She declined to drink the substance other than a sip or two and decided to leave. You offered her a ride to her home, but under a pretext, got her to stop off at the Grand Chancellor Hotel where, I infer, you were staying. In the room you put on a pornographic movie, got on top of her and tried to kiss her. Saying that she needed to go to the toilet, the young woman managed to get away and run off. You gave chase but she managed to jump into a taxi."

H - Administering a drug with intent to facilitate the commission of the crime of rape. Aggravated sexual assault. Rape.

"The next crimes were committed in Launceston about two years later. You gave a 20-year-old-female drinks that probably contained considerably more alcohol than she anticipated, for she immediately began to experience symptoms consistent with having been drugged. In this drugged state, you led her to an upstairs room and there attacked her by pushing her against a wall, and while holding her by the throat, you kissed her, pulled her head back and tried to pull her clothes up. You then put her on a mattress that was on the floor, inserted your fingers into her vagina and orally raped her"

Incident which is the subject of a prior conviction.

"About this time, you committed the crime of rape by aiding and abetting a business associate to rape a near unconscious 18-year-old female in the office of your Launceston nightclub. You were convicted of this crime and sentenced to 15 months imprisonment with a 9-month non-parole period. The rape occurred in a room full of leering males and was a particularly degrading experience for the victim."

Y - Administering a drug with intent to facilitate the commission of the crime of rape. Rape.

"Within a short time of committing that crime, you administered alcohol to a 20-year-old club patron with the intention of raping her... As you had done on previous occasions, you took her to an upstairs room and put the drugged female on a mattress. You removed her clothes and had vaginal intercourse with her. She was so drugged that she was unable to physically resist you. However, she did verbally protest but you overrode her protestations."

About 9 months later you committed the ninth crime on the indictment. The young woman was attending one of your nightclubs. She was 21-years-old. She was heavily intoxicated. You took advantage of her state, took her to an upstairs room and vaginally raped her. ..."

B - Administering a drug with intent to facilitate the commission of the crime of rape. Abduction. Rape.

"Four years passed before you attacked again. This time the venue was a nightclub in Hobart. Your victim was aged about 16 or 17. You plied her with alcohol in very large quantities intending to rape her. When she was badly affected and unable to help herself, you abducted her to your house and there forcibly raped her."

"This course of criminal conduct ended in 2001 when you abducted a 19-year-old female from one of your nightclubs. She felt drugged, although you are not charged with administering a drug to her. At all events, she was clearly unable to look after herself. You took her to your home and forcibly raped her."

19 As to the respondent's conduct, the learned sentencing judge said:

"Your criminal conduct was predatory, persistent and committed with an arrogant and contemptuous disregard for the welfare and dignity of your victims. At the time you raped the 16 year-old in 1990, you were about 20 years older than her. You are 27 years older than your last victim. You were the person with ultimate control over the management of these nightclubs and thereby in a responsible position. The young and vulnerable patrons were entitled to expect you to exercise proper control over the premises. To use them yourself as a place where you could drug and sexually attack young females was an abrogation of your responsibility. I see nothing mitigatory in the circumstances surrounding the commission of these crimes.

You are now 49 and, but for your pleas of guilty, probably would have been released on parole from the sentence for aiding and abetting rape. Apart from that conviction you are without prior conviction but today any claim to previous good character must be considered in the light of the fact that for a decade between 1990 and 2001 you were engaged in criminal conduct."

20 After canvassing the mitigatory matters advanced in the interests of the respondent, and in the main, rejecting them or substantially discounting them, the learned sentencing judge said:

"I take into account the sentence that was imposed for aiding and abetting rape and the fact that today you are to be sentenced for multiple crimes. This is known as the totality principle. You were eligible for parole a few weeks ago. Accordingly, I think that the sentence that I am about to impose should commence today and not at the expiration of the sentence you are presently serving.

I have carefully read the victim impact statements concerning the seven young women you attacked. Not surprisingly, there are common themes of shame and humiliation. To varying degrees, your criminal conduct has had a devastating effect on each of them."

21 In respect of all counts, the learned sentencing judge imposed a global sentence of eight years' imprisonment with a non-parole period of five years.

22 The imposition of a global sentence when dealing with multiple offences is the course that is ordinarily adopted in this State and is a course that is consistent with the Sentencing Act 1997, s11(1), which provides:

"11 (1) A court may impose on an offender who has been convicted of more than one offence specified in one or more complaints or indictments -

(b) a separate sentence for each of those offences; or

(c) one sentence for a group of those offences determined by the court and -

(i) one sentence for all of the remaining offences; or

(ii) a separate sentence for each of the remaining offences; or

(iii) a separate sentence for each other group of the offences remaining as the court determines and a separate sentence for each offence remaining, if any, as is not within any such group."

23 As can be seen, a sentencing option that was open to the learned sentencing judge was the imposition of separate sentences in relation to each count or for each group of counts. It has long been accepted in this State that whether a judge faced with the problem of determining the appropriate punishment in respect of multiple crimes chooses to impose one overall sentence or separate sentences, is a matter of discretion, but that there is a danger of a total excessive period of imprisonment resulting from the practice of imposing separate cumulative sentences in respect of a number of crimes, Bruce v R [1971] Tas SR 22, Burbury CJ at 35. Nevertheless, the Director of Public Prosecutions, in substance, contends that, consistent with High Court authorities applicable to jurisdictions where the local law does not permit global sentencing, the learned sentencing judge should have approached the sentencing of the respondent by first notionally determining the appropriate sentence for each of the respondent's crimes and then revising the total of these sentences in the light of the totality principle.

24 The totality principle is an important consideration when sentencing an offender on multiple counts or when sentencing an offender who is currently serving a sentence of imprisonment. When sentencing in these circumstances, the sentencer must have regard to the total effect of the sentence so as to avoid a crushing sentence in the context of the criminality involved in all of the offences. The totality principle applies regardless of whether the penalty ultimately imposed is arrived at by means of individual sentences or a global sentence. In the former case, it is ordinarily necessary to give effect to the principle by making individual sentences wholly or partially concurrent. In Wise v R [1965] Tas SR 197, the appellant appealed against the imposition of cumulative terms of imprisonment for three separate incidents. Neasey J, at 209 said:

"I do not accept the argument that the learned Chief Justice made an error in treating these offences separately. ... That is not to say that a judge imposing sentence in respect of multiple offences need pay no regard to the total sentence where the element of repetition in the sense referred to therein is absent. Generally I would think it would be his duty to do so, in order to see that the total of individual sentences does not become out of proportion to the totality of the offences, having regard to the many considerations a judicial officer imposing penalty for crime must take into account."

25 In Mill v R (1988) 166 CLR 59, the appellant had committed two armed robberies in Victoria and one in Queensland over a six week period. Having been sentenced for his Victorian crimes to ten years' imprisonment with a non-parole period of eight years, and having served that sentence, he was taken to Queensland where he was sentenced to a further eight years' imprisonment. The sentencing judge made a recommendation that the appellant be considered for parole after three years, a reduced period, in recognition of the fact that he had already served eight years for the Victorian crimes. The High Court held that the totality principle applied to both the head sentence and the parole eligibility period and in a joint decision, Wilson, Deane, Dawson, Toohey and Gaudron JJ said at 62 - 63:

"The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-57 as follows (omitting references):

'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong["]; "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences".'

See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

The totality principle has been recognized in Australia. In Reg v Knight (1981) 26 SASR 573, the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ) said, in a joint judgment, at p 576:

'it seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker LC J in Reg v Faulkner (1972) 56 Cr App R 594, at p 596, "at the end of the day, as one always must, one looks at the totality and asks whether it was too much".'

See also Reg v Smith (1983) 32 SASR 219; Ryan v The Queen [1982] HCA 30; (1982) 149 CLR 1, at pp 21, 22-23."

26 The totality principle serves to ensure that an offender is not subjected to a crushing sentence not in keeping with his record and prospects, Postiglione v R (1995 - [1997] HCA 26; 1996) 189 CLR 295, Dawson and Gaudron JJ, at 304, and Kirby J at 340. In the same case, McHugh J, at 308, said:

"The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged (R v Holder [1983] 3 NSWLR 245 at 260). Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences (Holder (supra) at 260).

Recent decisions in the Court of Criminal Appeal (R v Bakhas (1989) 39 A Crim R 174; R v Harrison (1990) 48 A Crim R 197; R v Gordon (1994) 71 A Crim R 459) have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."

27 Where, as in this case, the sentencer is considering the imposition of a cumulative sentence, there are mitigatory factors that may arise out of that circumstance alone. In Vlek v R [1999] WASCA 1038, Anderson J, agreed with by Pidgeon and Ipp JJ, said:

"When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately. Jarvis v The Queen (unreported; CCA SCt of WA; Library No 930341; 14 June 1993), especially per Ipp J. Furthermore, as was pointed out in Mill ((1988 166 CLR 59), the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude. See Cross: 'The English Sentencing System' (Butterworths 1971) at page 104. Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case. Therefore, the conventional sentencing objectives may be able to be achieved by a cumulative sentence which is shorter than the sentence that must properly be imposed when the sentence is not to be cumulative."

28 I return to the Director's submission that before resorting to the totality principle, the learned sentencing judge should have notionally determined the appropriate sentence for the respondent on each of his crimes. The learned sentencing judge's comments on passing sentence do not reveal whether he went through this notional process. The course that his Honour followed, that is the imposition of a global sentence without expressly going through the notional exercise for which the Director contends, accords with the long-standing practice of this Court. As to the history of the imposition of global sentences in this State, Professor Warner says in her text, Sentencing in Tasmania, 2nd ed, the Federation Press, 2002, par2.501:

"A general sentence or global sentence is 'a sentence intended by the judge to cover more than one count' (Edirimanasingham [1961] AC 454 at 460). It can consist of any kind of sentencing order or authorised combination of orders. General sentences were known at common law (see O'Connell [1844] EngR 880; (1844) 11 CL&F 155; 8 ER 1061). In Tasmania, court records show that they have been employed by the Supreme Court since at least 1856. For many crimes general sentences are more common than single count sentences. But in other Australian jurisdictions the general sentence seems to have been all but forgotten. In Ryan ((1982) [1982] HCA 30; 149 CLR 1, Stephen J at 4, Wilson J at 19, Brennan J at 25), the High Court doubted the continued existence of a common law power to impose a general sentence. In England, too, they fell into disuse (see K Warner, 'General Sentences' (1987) 11 Crim LJ 335). The general sentence was given statutory recognition by the Criminal Code, s 389(7), which provided that a separate sentence may be imposed on each count of the indictment, 'but if only one sentence is imposed upon him it shall be deemed to have been passed in respect of each of such counts'. 'One sentence' was interpreted in Haines ([1967] Tas SR (NC 10); Serial No 34/1967) as permitting a general sentence in respect of each count. Burbury CJ said (Serial No 34/1967 at 2):

That [the imposition of a general sentence] according to the recollection of the members of this Court has been the inveterate practice of the Court for a number of years, and we see no reason to suppose that it is in any way wrong."

29 The Tasmanian practice in relation to global sentences applies in the Northern Territory, the Sentencing Act 1995 (NT), s52, and has applied in South Australia since 1992, the Criminal Law (Sentencing) Act 1988 (SA), s18A. As to the introduction of that provision in South Australia, in Hermel v Police [2000] SASC 34; (2000) 76 SASR 336, Duggan J, at 337, explained:

"The power to impose one sentence for a number of offences (Criminal Law (Sentencing) Act 1988 (SA) s 18A) was introduced principally to overcome the often awkward and artificial process of constructing an appropriate punishment for a series of offences by means of concurrent or cumulative sentences."

30 The following passage from the decision of Wells J in The Attorney-General v Tichy (1982) 30 SASR 84 at 92 - 93 canvasses some of the difficulties to be confronted when sentencing an offender separately on each of multiple offences:

"It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration."

31 The local sentencing law in Queensland, New South Wales and Western Australia does not make any provision for the global sentencing of an offender convicted of a number of indictable offences. In Pearce v R (1998) 194 CLR 610, a case from New South Wales, the sentence under appeal involved two identical terms of imprisonment for two offences, which sentences were ordered to be served concurrently. At issue was whether, to the extent that the two offences of which the appellant was convicted contained common elements, he had been punished twice for the commission of those common elements. As to this issue, McHugh, Hayne and Callinan JJ said at 623 - 624:

"Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59).

Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision (cf House v the King [1936] HCA 40; (1936) 55 CLR 499). It is, then, all the more important that proper principle be applied throughout the process.

Questions of cumulation and concurrence may well be affected by particular statutory rules (see Crimes Act, s444(2) and (3); Sentencing Act 1989 (NSW), s 9; see also Sentencing Act 1991 (Vict), s 16). If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences (R v Lomax (1998) 1 VR 551 at 564, per Ormiston JA).

Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm."

32 In Johnson v R [2004] HCA 15; (2004) 78 ALJR 616, a Western Australian case, the appellant submitted that in structuring the sentence imposed on him for two offences, the sentencing judge had acted contrary to the principles stated in Pearce. With reference to that submission, Gummow, Callinan and Heydon JJ said, at par26:

"The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates (Pearce (1998) 194 CLR 610 at 624 [45]). The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected."

33 As recognised in the last sentence of the above passage, and as must be so, the principles enunciated by the High Court in Mill, Pearce and Johnson are subject to the local statutory requirements under which the sentence is effected. Accordingly, where, as in Tasmania, the Court has the power to impose a global sentence, there is no mandatory requirement for a sentencer to adopt the process favoured in Pearce and Johnson. There is plainly a significant difference between the sentencing approach that may be adopted in jurisdictions that allow for global sentences and those that do not. This difference underlies a contention advanced in Putland v R [2004] HCA 8; (2004) 204 ALR 455 that if the global sentencing of federal offenders was allowed in some jurisdictions but not others, then they would be treated unequally, dependent upon the jurisdiction in which they were sentenced. This potential inequality was recognised by members of the High Court. Gleeson CJ at 456 - 457, and Gummow and Hayden JJ at 471, in substance held that notwithstanding differences between the sentencing laws of differing States, pursuant to the Judiciary Act 1903 (Cth), s68, each State's sentencing law applied in relation to a federal offender dealt with in that State. Kirby J at 479, par93, described the differences between those States which allow for global sentences and those that did not as a "serious divergence".

34 As already mentioned, a provision allowing global sentences was introduced in South Australia in 1992. This change precipitated a number of decisions in that State on the circumstances in which, notwithstanding the power to impose a global sentence, a sentencer should impose individual sentences in relation to multiple offences. An analysis of those decisions and their outcome is contained in the following extract from the decision of Perry J (agreed with by Mullighan and Besanko JJ) in R v P [2003] SASC 428; (2003) 144 A Crim R 51, pars65 - 71:

"It will have been seen from the sentencing remarks of the sentencing judge that he adopted what might fairly be described as an arithmetical approach to sentencing, assigning an individual sentence to each count, which he then aggregated.

In my view, in approaching the matter in that way, he fell into error, and the final result of that approach, namely an accumulated head sentence of 10 years and 10 months reduced by reference to the principle of totality to 9 years, is disproportionate. While that approach might be thought to be supported by the decision in Major ((1998) [1998] SASC 7089; 70 SASR 488; 100 A Crim R 66) subsequent decisions have made it clear that the process of aggregation of individual sentences which was approved in that case is not a 'rigid formula' which must necessarily be followed in cases of multiple offending.

The question of the correct approach to sentencing for multiple offences, as a matter of general principle, was recently discussed in Nylander ([2003] SASC 191 (Prior, Bleby and Sulan JJ)).

In that case, the appellant was sentenced following his conviction on four counts of armed robbery and two counts of shooting at with intent to do grievous bodily harm. The approach taken by the sentencing judge in that case, and the court's view as to the appropriate approach which should have been taken, appear from the following passage in the judgment of Bleby J, with whom Prior and Sulan JJ agreed:

77 The trial Judge took as a starting point a sentence of 10 years imprisonment with respect to each of the armed robberies. He considered that those should be cumulative. He considered that a penalty of eight years imprisonment for each of the two shooting offences should be concurrent with each other but cumulative upon the armed robbery offences, making a notional starting point of 48 years by way of head sentence. By reference of the principle of totality the trial Judge reduced that to a head sentence of 32 years.

78 The notional starting point for each of the offences cannot be criticised. For offences taken in isolation each of the notional penalties was well within the range appropriate for the circumstances of the offence and the antecedents of the appellant. There could be no discount for a plea of guilty. There was no sense of repentance or remorse.

79 The trial Judge followed the process referred to by the majority of this Court in R v Major [1998] SASC 7089; (1998) 70 SASR 488 at 490; [1998] SASC 7089; 100 A Crim R 66 at 67, where Doyle CJ said at 490:

I agree with Olsson J that if a single sentence is imposed, using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act), the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative. I agree that in the present case the starting point is that each sentence would be cumulative.

If the judge does not do this, there is a real danger that a single sentence imposed under s 18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.

In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed.

80 However, that is not always the appropriate approach. In R v Symonds [1999] SASC 217 the Chief Justice, with whom Prior and Mullighan JJ agreed, said at [21] - [22]:

In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s 18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.

In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s 18A were not available. The power conferred by s 18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.

81 There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person.

83 In my opinion, this is one of those cases where it was inappropriate to embark on the approach outlined in R v Major. The adherence to that approach seems to have induced a sentencing error.

84 The total notional sentence arrived at by the Judge was, in the circumstances of the appellant, particularly of his age, an unreal starting point, and demonstrated the inappropriateness of this approach taken in R v Major. The use of that starting point with the application of a discount of a proportion of that total resulted in a head sentence which was manifestly excessive in all the circumstances.

85 In determining an appropriate penalty in a case like this one can only do the best one can to make some overall assessment of the seriousness of the total offending and to strike a balance with the relevant personal circumstances of the defendant.

Here, it seems to me that, consistently with the approach identified in Nylander, and with the approach which, even before the decision in Nylander, was routinely applied in cases involving multiple counts of sexual offending of this kind (see cases referred to by the Chief Justice in R v D [1997] SASC 6350; (1997) 69 SASR 413; 96 A Crim R 364), the most appropriate process is simply to commence with a global figure which seems appropriate to the overall offending, and then to reduce it by reference to mitigating circumstances, such as the plea of guilty, remorse, efforts at rehabilitation and the like. The new sentencing standard defined in R v D is predicated upon that approach.

Insofar as the sentencing judge in this case approached the assessment of the penalty by an arithmetical addition of discrete sentences assigned to each offence, this was an inappropriate method of calculating the sentence, and ran the risk of a disproportionately high result."

35 Implicit in the Director's contention is the proposition that, notwithstanding the power to impose a global sentence in this State, consistent with the High Court's decisions in Pearce and Johnson, a Tasmanian sentencer of an offender for multiple offences should adopt the process outlined in those decisions. The above passage from R v P shows that the Court of Criminal Appeal in South Australia takes the view that a sentencer in that State is not so confined. I take the same view in relation to the situation of a sentencer in this jurisdiction. This is not to say that if and when a sentencer chooses to impose a global sentence on a multiple offender, the sentencer would not have in mind the penalties the offender is likely to have received had he or she been sentenced separately for each offence. I reject any suggestion that the sentencer of a multiple offender must expressly or implicitly adopt the process outlined in Pearce and Johnson before sentencing.

36 The following are two Tasmanian examples that illustrate the unreality of working through a process of imposing separate sentences in respect of multiple counts before arriving at the final sentence. Dare, Underwood J, 28 June 1989, was sentenced on his plea of guilty to 90 counts of rape and 48 counts of indecent assault in relation to the same victim over a period of six years. It would have been patently absurd for his Honour to have gone through the notional exercise of imposing a sentence for each of those 138 counts before deciding on the sentence of ten years that was imposed. The exercise would have been similarly unreal in relation to Brown, Wright J, 4 April 1990, who was sentenced on his plea of guilty to 20 counts of rape in relation to the same victim over a period of 13 months. He was sentenced to ten years' imprisonment. It is obvious that totalling up the sentences that these offenders would have received if sentenced for each individual crime would have achieved a result that was way outside the range of sentences imposed in this State for criminal conduct such as theirs.

37 What is clear from the cases to which reference has been made is that in sentencing a person for multiple offences, or a person who is currently serving a term of imprisonment, the sentencer must make an overall assessment of the offender's criminal conduct and fix a sentence which reflects that conduct, bearing in mind the principle of totality. Considerable assistance can often be derived from a general comparison of the offender's criminal conduct with that of other multiple offenders. Professor Warner analyses the global sentences that have been imposed in this State for multiple counts, including at least one count of rape, in her text, Sentencing in Tasmania (supra), par11.409. Between 1978 and 2000, 31 offenders were sentenced in respect of five or more counts, the highest sentence being 20 years and the median sentence being about 7 years. At 11.413, Professor Warner says as to those sentences:

"... sentences of 7 years and more were common for counts of five and more (see Table 13), generally representing cases of a sustained course of child sexual abuse or a prolonged and brutal attack involving many separate offences. Long sentences have been imposed in cases of child sexual abuse where the exploitation continued over a significant period of time (Brown Wright J 4/4/1990; Warren Wright J 17/8/1995). In Bell (Serial No 35/1992), a sentence of 12 years was upheld by the Court of Criminal Appeal where an offender with prior convictions for sex offences including rape was convicted by a jury of rape and defilement of his stepdaughter over a period of three years. ... In the period 1990-2000, brutal attacks involving multiple offences in one prolonged incident continued to attract heavy sentences. Although not as long as the sentences of 20 years and 14 years imposed in one case in 1986 (Watson and Curtis Cox J 2/12/1986), sentences ranging from 7 to 10 years were imposed for such attacks (Phillips Underwood J 9/10/1998; Smart Underwood J 2/7/1993; Turner Zeeman J 18/8/1995; Blacklow Wright J 29/5/1997). In Farrell (Serial No A36/1996), a global sentence of 8 years was upheld by a majority of the Court of Criminal Appeal ..."

38 The Professor's analysis brings into focus the difficulty of identifying what might be said to be the tariff for criminal conduct that is broadly equatable with that of the respondent. My review of the Court's sentencing database which dates from February 1985, confirms this difficulty. Most of the relevant sentences relate to the sustained sexual abuse of a child or multiple offences in the course of one prolonged attack. The respondent's conduct does not fall within either of these categories. He falls to be sentenced in respect of seven separate and distinct incidents, during five of which more than one crime was committed. The incidents occurred over a period of 11 years, six of the incidents included a rape. Notwithstanding the difficulty of identifying the tariff for criminal conduct similar to that of the respondent, it is necessary to address whether the sentence imposed was manifestly inadequate. At the time of his crimes, the respondent was a mature man in a position of advantage over his victims. In most instances, his victims were inebriated and in some instances the respondent had overtly, or by stealth, encouraged the victim's inebriation. On four occasions he administered, or sought to administer, a drug with the intention of raping his victim. Against this background the respondent's lack of any relevant prior convictions was not a significant mitigatory factor. Had he not pleaded guilty, I consider that an appropriate global sentence for these seven separate criminal episodes was 13 years' imprisonment. When sentenced on 1 October 2004, the respondent had served 9½ months of a sentence of 15 months' imprisonment upon his conviction of rape by aiding and abetting a rape in the circumstances outlined in par3 above. The further sentence of eight years' imprisonment imposed on the respondent was dated from 1 October 2004. Accordingly, about 5½ months of the sentence was made concurrent with the sentence of 15 months' imprisonment he was serving. In my view, that benefit was a sufficient recognition of the application of the totality principle.

39 The respondent pleaded guilty. Whilst this is ordinarily a significant mitigatory matter in relation to a sexual offence, its force in this case was considerably reduced as the respondent only confirmed that he would plead guilty shortly prior to his trial. By that time, all of the victims had been required to give evidence and been cross-examined in the course of preliminary hearings. Nevertheless, the respondent's late pleas of guilty did avoid the need for his victims to again give evidence and it provided them with the satisfaction of knowing that he had publicly acknowledged his criminal conduct. This warranted a reduction in his sentence to the order of 20 per cent, that is, a sentence of about 10½ years' imprisonment. The difference between such a sentence and the sentence imposed is substantial and, in my view, this difference warrants allowing the appeal, notwithstanding the need for caution when considering a Crown appeal against a sentence, but accepting that it is the obligation of the Court of Criminal Appeal to intervene when error is clearly demonstrated, Dinsdale v R [2000] HCA 54; (1999) 202 CLR 321 [62].

40 This being a Crown appeal, it is necessary to pay regard to the considerations canvassed in Attorney-General (Tas) v McDonald [2002] TASSC 120; (2002) 11 Tas R 221 when re-sentencing the respondent and with those matters in mind, I would re-sentence him to 10 years' imprisonment to date from 1 October 2004 and specify a parole eligibility period of 6½ years.

DIRECTOR OF PUBLIC PROSECUTIONS v SHANE RONALD FARMER

41 I agree with Slicer and Evans JJ that the sentence imposed at first instance was manifestly inadequate, that the appeal should be allowed, and that this Court should impose a global sentence taking effect from 1 October 2004 in respect of the 14 counts on the indictment. In my view Slicer and Evans JJ have correctly identified all the factors relevant to re-sentencing by this Court. Unfortunately I am not able to agree that the sentence that should now be imposed is one of 10 years' imprisonment, with a non-parole period of 6½ years, as proposed by my brother judges. In my view a heavier sentence is appropriate.

42 Consistency in sentencing is highly desirable, for obvious reasons. However the facts of this case are so unlike any other case that this Court has dealt with, at least in recent years, that other sentences imposed in Tasmania are only of the most minimal assistance in determining an appropriate penalty for this offender. Apart from murder cases, cases warranting sentences of imprisonment of 10 years or longer are quite rare in Tasmania.

43 The range of sentences imposed in this State for murder since the abolition of mandatory life sentences is now reasonably well defined. However the range of sentences imposed for murder is of almost no assistance in determining an appropriate sentence in this case. Murder sentences usually relate to single acts, and many of them involve little or no planning. Many acts of murder are acts of reckless killing, rather than intentional killing. By contrast, the respondent's crimes were intentional ones spanning a long period. A murder, by definition, results in the ending of someone's life, whereas the respondent's crimes have resulted in the disruption, severely in many cases, of the lives of his victims. Minds are likely to differ as to whether his criminality, because of the number of victims and the time span over which his crimes were committed, was worse than that of a hypothetical murderer responsible only for a single killing.

44 By virtue of the Criminal Code, s389(3), the maximum period of imprisonment that may be imposed for any crime (other than murder or treason) is 21 years. By virtue of the Sentencing Act 1997, s11(1), a judge sentencing an offender for an indictment containing multiple counts may impose a single sentence in respect of all of the counts, but is not obliged to do so. Thus, if there were ever a case in which sentencing for more than 21 years was warranted, that could be achieved by imposing two or more separate sentences totalling more than 21 years, provided no individual sentence exceeded 21 years. Thus, 21 years should not be regarded as a sentence appropriate only for the worst sort of case if multiple crimes have been committed.

45 A series of rapes obviously warrants a very long sentence of imprisonment. However it takes only a moment's thought to imagine circumstances in which committing a series of rapes might involve a far greater degree of criminality than the criminality of this offender. There could have been a gang of rapists. There could have been more victims. The victims could have been younger. Greater violence could have been used. Greater physical harm could have been caused. Drugs more dangerous than alcohol could have been used.

46 Counsel in this case did not provide the Court with any information as to sentencing in other Australian jurisdictions in comparable cases. Of course it may be that research into sentencing for multiple rapes in other jurisdictions would not have produced any useful information. For all I know, such research might have been undertaken and produced no useful data. Sentencing information from other jurisdictions needs to be treated with caution because of different regimes relating to parole, remission and truth in sentencing, and because of differences in the definition of rape, amongst other things.

47 It is therefore necessary to determine an appropriate sentence for the respondent without the assistance of information as to sentencing in comparable cases in Tasmania or other jurisdictions. The Court is in uncharted waters. Slicer J has come to the conclusion that a sentence of 12 years' imprisonment would have been appropriate before allowing for the totality principle and the double jeopardy principle applicable to Crown appeals. Evans J has decided that a sentence of 13 years' imprisonment would have been appropriate before allowing for the respondent's pleas of guilty and the double jeopardy principle. With due respect to each of them, I take the view that a somewhat longer sentence of imprisonment would be the appropriate starting point, before allowing for those factors.

48 I find it helpful, in confronting the re-sentencing task, to consider what an appropriate sentence would have been for the most heinous group of crimes committed by the respondent in relation to a single victim. In my view the crimes committed in relation to the second last victim, who has been referred to as B, were the most serious. She was only 16 or 17 years old. She went to a nightclub managed by the respondent not as a customer or drinker, but as someone looking for work. The respondent got her very drunk, intending to rape her. He thereby committed the crime of administering a drug with intent to facilitate the commission of the crime of rape. He put her into his vehicle and drove her to his residence, thereby committing the crime of abduction. He placed her on his couch, removed her clothing, had forceful sexual intercourse with her, and thereafter gave her the employment that she had been seeking. He was about 28 years older than his victim. She has on-going psychological problems. In my view, if the respondent had been charged only with the crimes relating to that victim, pleaded not guilty, and been found guilty of them by a jury, an appropriate sentence would have been one in the vicinity of seven years' imprisonment.

49 The respondent was 49 years old when sentenced. I acknowledge that a "crushing sentence" not in keeping with an offender's record and prospects is to be avoided: Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 per Dawson and Gaudron JJ at 304. However, in my view, if the respondent had pleaded not guilty to these 14 crimes and been convicted of all of them, a head sentence of at least 16 years would have been appropriate.

50 By pleading guilty when he did, the respondent avoided the need for the seven complainants, all of whom had given evidence and been cross-examined on the voir dire, to give evidence again before a jury. He also saved the Crown and its other witnesses the cost and inconvenience of completing a long trial. It is in the interests of the administration of justice that a substantial sentencing discount be provided to any offender who pleads guilty, even at such a late stage. Otherwise offenders will have little incentive to plead guilty. Evans J has suggested that a sentencing discount of about 20 per cent would be appropriate in such circumstances. For my part, I would be a little less generous, but I acknowledge that a substantial discount is appropriate by reason of this factor in this case.

51 I turn to the "double jeopardy" factor. The Crown's notice of appeal was filed on the same day that the respondent was sentenced, 1 October last. He has had to live with the possibility that his sentence might be increased for about six months now. As I indicated in Attorney-General v McDonald [2002] TASSC 120; (2002) 11 Tas R 221 at 240, I think that the sentencing discount to allow for double jeopardy should not be out of all proportion to the consequences of that double jeopardy. In this case, the consequences of the double jeopardy are that some six months of the respondent's imprisonment have involved greater stress than they should have. If the discount to be allowed for the double jeopardy factor were separately quantified, I think a discount of only two or three months would be appropriate in this case.

52 When a Crown appeal against sentence succeeds, it is common for the appellate court to impose a substituted sentence towards the lower end of the available range: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 341; RHMcL v R [2000] HCA 46; (2000) 203 CLR 452 at 497. However I think that practice is one that is more significant in a case where the sentencing judge has set out to impose a lenient sentence, and gone too far in that direction, rather than in a case where the sentencing judge has not set out to be lenient, but has erred by imposing a penalty that was manifestly inadequate. I think it is clear from the remarks of the learned sentencing judge that, although he was taking certain mitigating factors into account, he was not setting out to impose a lenient sentence. I think it would be just for this Court to exercise moderation in the re-imposition of sentence, but I certainly do not think it should set out to impose a lenient sentence.

53 I do not wish to say anything as to the other relevant factors referred to in the judgments of Slicer and Evans JJ.

54 I would allow the appeal, set aside the sentence of imprisonment imposed on 1 October 2004, sentence the respondent to 13½ years' imprisonment with effect from that date, and order that he not be eligible for parole until he has served 9½ years of that sentence.