Criminal law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Plea of guilty to one count of persistent family violence - Nineteen occasions of violence including nine involving rapes - Sentence of 17 years' imprisonment with a non-parole period of 10 years - Appellant without substantial prior convictions - Disputed facts hearing required - Some evidence of reform after offending - Lengthy period between charge and resolution not attributable to appellant but no undue delay given complexity of facts and procedure - Little to mitigate the criminal conduct - Greater than minimum non-parole period a proper exercise of discretion given the gravity and duration of offending - Sentence imposed not manifestly excessive - Appeal dismissed.

Palmer v State of Tasmania [2024] TASCCA 6

JWM v Tasmania [2017] TASCCA 22

Davidson v Tasmania [2019] TASCCA 9

Groenewege v Tasmania [2013] TASCCA 7

Connelly v Tasmania [2015] TASCCA 15 considered

Judgment Number: [2025] TASCCA 6

1. I have read the reasons for judgment of Jago J with which I agree. They represent the reasons why I joined in the making of the order on 11 October 2024.

1. This is an appeal against sentence. Following the hearing of oral submissions on behalf of the appellant (the respondent was not called upon), the Court dismissed the appeal. These are my reasons for joining in that order.
2. The appellant pleaded guilty to the crime of persistent family violence. The crimes related to the appellant's then wife. After a disputed facts hearing, Blow CJ made findings that the appellant had committed crimes that constituted unlawful family violence acts on a total of 19 occasions. On four of those occasions, Blow CJ found the appellant committed two such crimes and therefore sentenced him in respect to 23 crimes. Blow CJ found there were nine occasions when the appellant raped his wife, one occasion when he assaulted her and attempted to rape her, three occasions when he assaulted her and unlawfully injured property of hers, three further occasions where he assaulted her and three occasions when he unlawfully injured property belonging to her. On 26 April 2023, the appellant was convicted and sentenced on the indictment to 17 years' imprisonment, backdated to 16 March 2023 to take into account the time the appellant has spent in custody. A non-parole period of ten years was imposed.
3. The appellant contends that both the head sentence, and the non-parole period, is manifestly excessive.
4. The sentencing judge also ordered that the appellant's name be placed on the Community Protection (Offender Reporting) Act 2005 register for a period of 15 years and made a family violence order to operate until revocation. No challenge is made as to the appropriateness of either of those orders.

1. The sentencing judge made findings of fact following a disputed facts hearing and published his reasons on 5 April 2023. See Tasmania v Lockwood [2023] TASSC 5.
2. The following summary was outlined by the sentencing judge in his Comments on Passing Sentence. There is no suggestion his summary is not a fair and accurate reflection of his findings. It is convenient and desirable that the summary be set out in its entirety:

"The couple lived together from 2004 until March 2017. There were some temporary separations during that period. They were married in 2006. The crimes in question were committed from about October 2004 onwards.

The rapes involved a variety of aggravating circumstances. Brief details of them are as follows:

When the complainant was about seven months pregnant with her first child, she was vomiting into a bucket beside the couple's bed one night. Whilst she was trying to vomit Mr Lockwood raped her vaginally from behind.

On another occasion, the couple were on holiday at a hotel. The complainant was menstruating. Mr Lockwood raped her vaginally on their bed at the hotel, even though she was crying the whole time.

On another occasion one night at the couple's home, the complainant resisted Mr Lockwood advances, but he ripped her clothes off and raped her vaginally.

On an occasion shortly after the complainant had given birth, he raped her on a mattress on their lounge room floor, even though the complainant made it clear that she was not consenting, telling him that she had just had a baby, that she had stitches, and that she was bleeding.

There was another occasion when Mr Lockwood raped his wife anally with the result that she was in a lot of pain and could not sit down for a week or two.

During a temporary separation in 2013 the complainant returned to the matrimonial home to get some things. On that occasion Mr Lockwood held her over the side of a bed with her back bent and her head near the floor and raped her vaginally.

On another occasion, the complainant had been to visit a sick friend who had died in front of her. When she returned home, Mr Lockwood pulled down her pants and raped her on their bed.

In April 2017, a few weeks after the couple's final separation, Mr Lockwood drove to the complainant's workplace, waited for her in the car park there, and raped her in his vehicle after she finished her shift.

Several months later, when the couple's children were spending a weekend with Mr Lockwood, he went to the complainant's home, barged in, and raped her.

As I have said, there was an occasion when Mr Lockwood assaulted his wife and attempted to rape her. That was shortly before their final separation. The complainant was planning to sleep in their lounge room, but Mr Lockwood picked her up, dropped her onto the floor from a height, and then dragged her to his bedroom where he tried to rape her. She resisted, struggling with him for about half an hour. He was so drunk that he eventually passed out. On this occasion one of the couple's children saw her father manhandling her mother, and then heard her mother in the bedroom calling out to her father to stop.

The crimes committed by Mr Lockwood on the remaining occasions can be summarised as follows:

In about 2005 he smashed a window at the couple's home.

In 2007 when the complainant was pregnant, he assaulted her by throwing paint at her, pushing her up against a wall, throwing her onto a bed, sitting on her, and holding her hands down.

On an occasion in 2008 Mr Lockwood committed the crime of unlawfully injuring property by throwing a beer bottle through a window at the couple's home, smashing the window. The throwing of the bottle also constituted an assault since he threw it towards his wife in a threatening gesture.

There was another occasion when Mr Lockwood unlawfully injured property jointly owned by him and the complainant by throwing a beer bottle against a wall.

There was another occasion when Mr Lockwood assaulted his wife by means of a threatening gesture by throwing her mobile phone towards her. That act also constituted the crime of unlawfully injuring property as the phone smashed when it landed on some concrete.

There was another occasion when Mr Lockwood assaulted the complainant by grabbing another mobile phone from her hand and unlawfully injuring property by throwing the phone at a television set and punching the set a number of times.

There was another occasion when Mr Lockwood unlawfully injured a mobile phone belonging to his wife by throwing it against a wall in the presence of at least one of their children.

There was another occasion when Mr Lockwood assaulted his wife by punching the driver's side window of her vehicle when she was sitting in the driver's seat, in the presence of at least three of their children.

There was another occasion, apparently late in the couple's relationship, when Mr Lockwood assaulted his wife by grabbing her by the hair and dragging her out of a doorway by her hair. The complainant's mother was within earshot and heard a commotion on this occasion, but did not see what happened.

The complainant gave evidence, which I accept, to the effect that these were not isolated crimes. I am satisfied that Mr Lockwood was in the habit of raping his wife from late 2004 until the end of their relationship, that he raped her anally on several occasions, and that he smashed things and manhandled her on other occasions. His uncharged unlawful acts do not weigh in favour of a heavier sentence. Uncharged criminal acts weigh against the imposition of a lenient sentence, but there is not much scope for lenient treatment when a man is to be sentenced for nine rapes."

1. The appellant was aged 21 to 34 at the time of the offending. He was 40 years of age at the time of sentencing. He had no substantial prior convictions. There were some dated driving offences and breaches of the Road Safety (Alcohol and Drugs) Act 1970, and a matter of burglary and stealing from 2001. As the learned sentencing judge correctly noted, however, "the significance of his lack of serious prior convictions is substantially negated as a result of his persistent criminal conduct towards the complainant over many years". The appellant's criminal conduct commenced when he was aged 21 and continued until he was approximately 34. The duration of the conduct which continued persistently and largely unabated during this time, extinguished any entitlement to leniency that might otherwise be given to an offender who commits isolated crime for the first time. The length over which the criminal conduct endured, deprived the appellant of the opportunity to say the offending was an aberration. A similar comment can be made in respect to the appellant's age. Whilst he may have been only 21 when the offending commenced, he was 32 by the time the offending ceased. At no point within that time frame, did the appellant mature sufficiently or develop sufficient insight or understanding into the wrongfulness of his conduct, to cease offending. The sentencing judge noted: "Remorse is not a mitigating factor in this case. Mr Lockwood's counsel told me that he acknowledges that there were significant problems relating to communication in the course of the relationship. However, he does not accept that anything he did amounted to rape". Moreover, the vast majority of the appellant's offending did not occur when he was a younger person. It is well recognised that in cases of serious criminal conduct, as this was, any mitigation that arises from youth gives way to the need for general and specific deterrence.
2. It was appropriate that the absence of relevant prior convictions, and the appellant's age when the offending commenced, be given minimal weight in the sentencing exercise, given the persistent, extremely serious and escalating conduct towards the complainant over a period of some 14 years.

1. The Court was also told the following in mitigation:
   • The appellant had a dysfunctional upbringing. His father maintained a relationship with two different women, resulting in the appellant having 11 siblings.
   • The appellant had significant trauma in his life with three of his siblings having committed suicide. His father died when he was eight years of age.
   • There was excessive alcohol consumption attributed to difficulties in managing and processing grief.
   • There were good supports in his life from his mother, his new partner (against whom there was no allegation of any acts of violence), his sister and his employer.
   • At the time of sentence, the appellant's sister had an inoperable brain tumour, and his mother was suffering from breast cancer. Imprisonment was, therefore, going to be onerous for the appellant because he would be unable to provide support for his family as they underwent treatment.
   • The relationship with the complainant had been terminated and the appellant had consented to the making of an indefinite family violence order, thereby giving the complainant long-term protection and comfort.
   • The appellant had embarked upon a rehabilitative course. In particular, he had recognised that previously he had experienced "issues in communication" and was actively addressing this in his new relationship. The new relationship was loving and supportive. He had addressed his alcohol consumption, which had been a difficulty in his relationship with the complainant, and was now only consuming alcohol occasionally and moderately. He had good employment. He was seen as hard working and well regarded by his employer, as evidenced by a letter of support written by the employer. There had been no further offending since the commission of the last act of violence relevant to the persistent family violence charge.

Sentencing principles relevant to family violence

1. Family violence has long been recognised as a grave, insidious and all too prevalent problem within the community. In sentencing any such crime, general deterrence, denunciation and the protection of the community are prominent sentencing considerations. It is also important that the sentence "vindicate the dignity of each victim of violence, express the community's disapproval of the offending and afford such protection as can be afforded by the State to the vulnerable against repetition of violence" (Munda v Western Australia (2013) 249 CLR 600).
2. In Palmer v State of Tasmania [2024] TASCCA 6, Porter AJ said at [39]-[40]:

"39 This Court and other courts in Australia have made clear statements about the general approach to physical violence in the domestic context. In Director of Public Prosecutions v Karklins [2018] TASCCA 6, 29 Tas R 373 at 92, Geason J (with whom Blow CJ and I agreed) said:

'Domestic violence is properly regarded as a most serious form of offending, frequently hidden from view, and thus difficult to detect. The court has a symbolic function. Censure for domestic violence should be communicated through the sentences which are imposed. Community attitudes to it are changing...Strong denunciation is called for, and general deterrence is a primary consideration. For crimes which are difficult to detect, the consequences of discovery must be severe enough to counter the perception that their commission is a risk worth taking.'

1. A short time later, in Gregson v Tasmania [2018] TASCCA 14 at [30] and [37], Martin AJ (Blow CJ and Geason J agreeing) said:

'Men like the appellant who are minded to use physical violence against their female partners must understand that the community is greatly disturbed by this type of unacceptable conduct. Such violence is prevalent and will be met with significant terms of imprisonment. General deterrence was also an important factor in sentencing."

... Women in domestic circumstances are particularly vulnerable to the abuse of power and breach of trust by violent male partners ... Women who become victims in these circumstances, and other potential victims throughout the community, are entitled to such protection as the law is able to provide through the imposition of sentences that will act as both a personal and a general deterrent.'"

1. Similar sentiments were expressed in Gregson v Tasmania [2018] TASCCA 14 at par 30 and par 37 when Martin AJ noted:

"30 Men like the appellant who are minded to use physical violence against their female partners must understand that the community is greatly disturbed by this type of unacceptable conduct. Such violence is prevalent and will be met with significant terms of imprisonment. General deterrence was also an important factor in sentencing.

1. The appellant is not to be punished again for his prior criminal conduct, but he is not entitled to any leniency. He has a history of violence towards women and, as I have said, the community is greatly disturbed by the prevalence of this type of conduct. Women in domestic circumstances are particularly vulnerable to the abuse of power and breach of trust by violent male partners: Director of Public Prosecutions v Karklins [2018] TASCCA 6 per Geason J, at [54]-[60]. Women who become victims in these circumstances, and other potential victims throughout the community, are entitled to such protection as the law is able to provide through the imposition of sentences that will act as both a personal and a general deterrent."
2. Such remarks are consistent with the approach being taken to sentencing family violence matters across the country. Nationwide, courts are recognising the very strong need to condemn family violence and to sentence in a manner that ensures violence within domestic settings is adequately punished, and that the sentences which are delivered have a strong element of both personal and general deterrence. Community expectation is that the Court will do what it can in sentencing, to provide protection to vulnerable complainants. It is necessary for the sentences imposed to make it very clear that courts, and the community at large, are exasperated by the continuing endemic of family violence, and those who perpetrate it will be met with a strong sentencing response.
3. In determining a sentence for the crime of persistent family violence, it is, of course, necessary to consider, amongst other relevant matters, the number and nature of each unlawful family violence act, the duration of the course of unlawful conduct and the nature of the relationship generally, including the extent to which there was coercive control, the extent to which there was humiliating and degrading behaviour, and the extent to which there was exposure of children of the relationship to the violence or a real risk that such exposure might occur. It is well recognised that the exposure of children to family violence can have significant, often life-long, deleterious effects.
4. Bearing these factors in mind, I note the sentencing judge was satisfied as to the following after the disputed facts hearing:

"80 The police interview and the evidence presented at the trial included a lot of evidence about the relationship between the complainant and the accused. That evidence is relevant and important because it places the evidence as to disputed allegations in context. There is a substantial body of evidence from the complainant to the effect that the accused routinely and repeatedly raped her from 2004 until the end of their relationship, sometimes every day or every second day, and sometimes more than once in a day. The complainant gave accounts of manipulative and controlling behaviour on the part of the accused. She described him requiring her to wear sexy clothes, inappropriately touching her in public and in front of their children, ignoring her complaints about sexual demands or sexual violence, criticising her clothing, hiding underwear, and taking naked photos of her without her permission. She said she would lock herself in the bathroom, but that he would unlock the bathroom door with a knife. She said that he would become violent and angry if she refused his sexual advances.

1. There was nothing about the complainant's demeanour or the way she answered questions during the police interview or the disputed facts hearing to suggest that any of her assertions were dishonest, inaccurate or unreliable. I am satisfied that for some 14 years the complainant was in a relationship with the accused that was characterised by intimidation, controlling behaviour, and persistent unwanted sexual advances. Having regard to the length of the relationship and the delay before reporting matters to the police, I do not think that the complainant's accounts of specific incidents were lacking in detail to such an extent as to suggest unreliability. Indeed, her accounts in relation to the rape when she was seven months pregnant and vomiting, and the rape when she had just come home from hospital after giving birth to her second child, for example, were very detailed. Having regard to the evidence of intimidation and controlling behaviour, I do not accept that the complainant's delays in reporting matters are indicative of unreliability."
2. The appellant's conduct then extended to humiliating, degrading and manipulative acts. It was persistent and extended over many years. The behaviour had a grave impact on the complainant. The sentencing judge noted: "...she still suffers continually from disturbing psychological symptoms, including nightmares, panic attacks, intrusive recollections, social withdrawal, feelings of vulnerability, hypervigilance and anxiety". The appellant's criminality involved a significant breach of trust. That, by itself, was a matter which called for significant weight to be placed upon general deterrence. There was little to mitigate such a protracted and damaging course of criminal conduct.
3. It is also noteworthy that during the disputed facts hearing, the statutory declarations of three of the appellant and complainant's children were tendered by consent. Those statutory declarations established that the children witnessed the appellant being violent, controlling and degrading towards the complainant on several occasions.
4. The considerations observed when sentencing for the crime of persistent sexual abuse of a child, contrary to s 125A of the Criminal Code 1924, are apposite when sentencing for a crime contrary to s 170A of the Criminal Code. In JWM v Tasmania [2017] TASCCA 22, Pearce J said at [5]-[6]:

"5 It is not necessary that the prosecution proves the dates on which any of the unlawful sexual acts were committed, or the exact circumstances in which any of the unlawful sexual acts were committed: s 125A(4). It is often the case that, for this crime, it is difficult to give particulars of each and every sexual act during a period of prolonged offending. The Crown refers to the specific sexual acts it is able to identify, but an offender may be sentenced on the basis that each specific act is part of a course of conduct involving other, sometimes many other, unspecified acts.

1. When an offender is sentenced for the crime, he or she should suffer the same penalty as would have been imposed if the individual sexual acts constituting the crime had been charged as separate crimes: DPP v M [2005] TASSC 14, 154 A Crim R 475 per Evans J at [38]; Director of Public Prosecutions v B [2009] TASSC 42, 19 Tas R 14 per Crawford CJ at [23]-[24]; DPP v T [2012] TASCCA 15, 21 Tas R 442 at [19]; Director of Public Prosecutions v STU [2012] TASCCA 7, 21 Tas R 322. When sentencing for multiple crimes, totality requires that a single or aggregate sentence be a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307-308; Director of Public Prosecutions v Farmer [2005] TASSC 15, 13 Tas R 418; Rae v State of Tasmania [2010] TASCCA 8; Hall v Tasmania [2015] TASCCA 6."
2. Here, the appellant was being sentenced for 23 unlawful family violence acts, including nine rapes, one attempted rape, seven assaults and six occasions of injuring property. Moreover, the learned sentencing judge accepted that these were not isolated crimes. He commented: "I am satisfied that Mr Lockwood was in the habit of raping his wife from late 2004 until the end of their relationship. That he raped her anally on several occasions and that he smashed things and manhandled her on other occasions. His uncharged unlawful acts do not weigh in favour of a heavier sentence. Uncharged criminal acts weigh against the imposition of a lenient sentence, but there is not much scope for lenient treatment when a man is to be sentenced for nine rapes."
3. It is trite to say that rape is an inherently serious crime. It involves not only the infliction of physical violence but necessitates the emotional and psychological degradation of victims.
4. The appellant's commission of the rapes alone, without consideration of the additional acts of family violence, necessitated a substantial period of imprisonment. When placed into the context of the other unlawful family violence acts, and the persistent nature of the sexual, physical and emotional abuse generally, it is patently clear that a weighty sentence was required.

1. The primary submissions made on the appellant's behalf was that the Court failed to give adequate weight to delay and failed to give adequate weight to the appellant's reform in the time between the offending ceasing and sentencing. In an appeal against sentence asserting manifest excess, it cannot be said that a sentencing court failed to give sufficient weight to any relevant factor or factors unless the sentence is manifestly excessive taking into account all matters relevant to sentence: Mulholland v Tasmania [2017] TASCCA 2 at [17]. The appellant's grounds of appeal contended that the sentence was manifestly excessive, both as to the head sentence and the non-parole period, but during oral submissions, counsel for the appellant largely confined her submissions to the length of the non-parole period, and all but conceded an argument that the head sentence was manifestly excessive was not sustainable. The following exchange occurred:

"PORTER, AJ Well, if you start to do the simple mathematics on the identified occasions, take into account background of offending which extends beyond the type of conduct particularised in the occasions and extends to emotional intimidation which is also a family violence matter...the arithmetic ends up being quite large, even taking into account proportionality, totality, crushing sentence, and just do the simple maths, it puts the 17 years into perspective, doesn't it?

MS BAUMELER: Well, it does, and that's why I'm saying that in terms of the actual head sentence, it is difficult to argue that that is manifestly excessive, but in terms of the other factors that need to be considered, the non-parole period, in my submission, half non-parole period in unusual circumstances where there's been rehabilitation isn't unrealistic." (emphasis added)

1. In my view, in terms of both the head sentence and the non-parole period, the factors identified in the appellant's submissions were not of a nature that they ought to have attracted any significant weight in the sentencing exercise.

1. Delay between the commission of an offence and final disposition of a case is not mitigating, per se, but it may work in favour of an accused if certain factors are at play. Delay as a mitigating factor focuses on two significant contentions. The first relates to the anxiety and stress of the offender who waits for a considerable period of time before the determination of the charges, and the second relates to circumstances where the offender has demonstrated rehabilitation during the period of delay, or at least what has occurred during that period suggests favourable prospects of rehabilitation.
2. It is important to remember, however, that the delay must be unnecessary. That is to say unnecessary in the sense that the resolution of the matter has taken more time than would usually be the situation given the nature of the matter. In Davidson v Tasmania [2019] TASCCA 9, Wood J at par 4 noted:

"4 It is clear that it may be appropriate, depending on the circumstances, for undue or lengthy delay to be taken into account as a mitigating factor: Prehn v R [2003] TASSC 55 at [21]; R v Todd [1982] 2 NSWLR 517 at 519-520; R v Schwabegger [1998] 4 VR 649 at 659-660; Williams v Tasmania [2014] TASCCA 2 at [17]; Director of Public Prosecutions v Allen [2017] TASCCA 24, 27 Tas R 260 at [19]. However, a delay of three years and three months is not unusual for this type of case. The time taken is explicable given the nature of the crimes and the investigation, voluminous material, and listing considerations such as the expected duration of the trial and priority given to the appellant's other case. In comparing the appellant's experience with the experience of other people who have had their cases heard in the Supreme Court, there may be various differentiating factors influencing the listing of trials. For example, priority is generally given to the trials of accused who are not on bail but held in custody on remand."

1. The appellant complains that it is the period from being charged to being sentenced that constitutes the unreasonable delay which was relevant to sentencing. The starting point is a consideration of whether there was, in fact, a delay in this matter. In my view, there was not. The persistent family violence was committed between 2004 and 2018. The appellant and complainant separated on 11 March 2017. The complainant spoke to police about the appellant's conduct in March 2014 and made a statutory declaration, but did not, at that point, raise any allegations of sexual violence. She spoke to police again some three years after the final separation. Throughout 2020, an investigation occurred which involved speaking to a number of witnesses, including the appellant and complainant's children. The appellant was charged on complaint on 26 June 2020. He pleaded not guilty to the complaint and was committed to the Supreme Court on 3 September 2020. An indictment was filed on 6 December 2021. The appellant entered a plea of guilty to the crime of persistent family violence on 27 April 2022, but indicated there was a dispute as to the facts. The disputed facts hearing commenced on 15 December 2022 and continued on 27 and 28 February 2023. The sentencing judge published findings on 5 April 2023. The appellant was sentenced on 26 April 2023. Given the nature of this matter, which necessitated complex facts being drafted, including the particularisation of the specific unlawful family violence acts relied upon and the fact it required a disputed facts hearing which took three days to hear, and involved a considerable body of evidence to be analysed, in my assessment, it could not be said that there was undue delay associated with the prosecution of the matter, or the matter proceeding through Court.
2. In any event, the appellant was, quite generously in my assessment, given the sentencing judge's findings as to the extent of the appellant's intimidation and violence, and his absence of insight and lack of remorse, given the benefit of the asserted rehabilitation that occurred between the cessation of the offending and the date of sentencing. The learned sentencing judge commented:

"There are some positive things that can be said about Mr Lockwood. He is now 40 years old. He does not have any serious prior convictions...

His counsel told me that he no longer drinks to excess, and now drinks only socially and occasionally.

He has good employment record. Until I remanded him in custody, he was employed as a machinery operator. He had held that job for over two years and was highly regarded by his employer.

He has a new partner. They have been together for four and a half years. It is very clear that he does not treat her in the way that he treated the complainant. His new partner has a child who is part of their household."

1. The sentencing judge took into account, in the appellant's favour, the positive changes he had made in the preceding four years, including curbing his alcohol consumption, which had been a difficulty in his relationship with the complainant, improving his communication skills which meant his new relationship was not characterised by violence, and his employment. There was no other aspect of the issue of delay that had any relevance to the sentencing exercise.
2. Overall, there was very little that mitigated the appellant's criminal conduct. Some benefit could be given for the plea of guilty, although any discount for the plea of guilty was substantially ameliorated by the need for the disputed facts hearing. The learned sentencing judge took this into account when he said:

"It was necessary for the complainant to give evidence because Mr Lockwood disputed most of the allegations against him, including all the allegations of rape and attempted rape. That is not a factor that weighs in favour of a heavier sentence, but it reduces the weight to be given to his plea of guilty. However, it does count in his favour that his plea of guilty avoided the cost and inconvenience of a jury trial. It also counts in his favour that the admitted several allegations relating to conduct witnessed by some of his children, thereby making it unnecessary for any of them to give evidence. But for his concessions, three of them probably would have had to give evidence."

1. I detect no error in the approach the sentencing judge took to either the issue of delay or the rehabilitative endeavours the appellant had undertaken since the offending ceased.

1. The principles applicable to sentencing appeals, where the sole ground is an allegation that the sentence was manifestly excessive in all the circumstances, are well settled. In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J, with whom Blow CJ and Porter AJ agreed, summarised the principles relevant to appeals such as this at [8]-[9] as follows:

"[8] As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54, (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] JCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10 Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539.

[9] It is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1998] HCA 14; (1988) 164 CLR 465 at 476:

'However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what an appropriate sentence is in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.'"

1. For the appellant to succeed it has to be shown that the sentencing discretion miscarried. It must be remembered that the sentencing judge's discretion is to be exercised within wide parameters taking into account the gravity of the criminal conduct, the circumstances of the offending and the circumstances of the individual offender (see Brennan v Tasmania [2022] TASCCA 7).
2. As has been noted in sentencing a crime of this nature, it is apparent that the appellant should be subject to the same penalty as would have been imposed if the individual acts of family violence constituting the crime had been charged as separate crimes, with the sentence appropriately moderated to accommodate principles of totality and proportionality. If one was to embark upon a simple mathematical exercise, it is trite to say that each individual occasion of rape would have attracted a significant term of imprisonment, as and by itself. When one "adds in" the additional unlawful family violence acts, and places all the unlawful acts into the context of them not being isolated, but rather part of a continuing course of conduct, which extended to not only many acts of physical violence, but also emotional intimidation and manipulation, it is blatantly obvious, in my view, that the sentence imposed was not manifestly excessive. The sentencing judge was correct to describe the matter as:

"This case is an extremely bad example of family violence. Although the physical injuries were minimal, the impact on the complainant has been devastating. The impact on the couples' children must not be overlooked. Their father was a terrible role model for them, and now they will have to come to terms with his imprisonment. There is every indication that Mr Lockwood is not the person that he was when he sexually and emotionally abused his wife over many years, but I need to impose a sentence that should deter others from the sort of conduct that he engaged in, and one that reflects the extreme seriousness of his crimes".

1. In my assessment, the head sentence was a just and proportionate response to the seriousness of the conduct and the level of criminality involved.

1. The appellant also submits that the non-parole period of ten years is excessive and renders the sentence manifestly excessive. In a case where the head sentence is not manifestly excessive, and the non-parole period is under scrutiny, the correct approach is as set out in Groenewege v Tasmania [2013] TASCCA 7 at [56] and [57]:

"56 I turn to the order in relation to parole eligibility. The question is whether the period for which an appellant is not eligible for parole makes the sentence manifestly excessive; "sentence" in this context, being used in a broader sense. Under the Sentencing Act 1997 s17, there is no parole eligibility unless it ordered that the offender is not eligible for parole before the expiration of a specified period. That period must be not less than one half of the head sentence. A non-parole period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances. The fixing of a parole eligibility period gives a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom once the prisoner has served the minimum period the judge determines: Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629; Carr v R [2002] TASSC 60; (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47].

1. Obviously, whether a non-parole period is appropriate has to be assessed not only on the basis of the whole of the circumstances of the case, but in the light of the length of the head sentence. There are several recent instances in which this Court has taken the view that although the particular head sentence was not shown to be manifestly excessive, the non-parole period made the sentence a manifestly excessive one. In Johnstone v Tasmania [2011] TASCCA 9, the non-parole period was set at 2½ years (a little over 70%) of a 3½ year term. The court concluded that having regard to mitigating circumstances, particularly the appellant's age, his general good character and lack of prior convictions, and attitude to offending after it was detected, the minimum period required to be served was out of proportion to moral culpability. The sentence was varied by a reduction of the non-parole period to 21 months."
2. Therefore, to demonstrate undefinable error of this kind, the appellant must show that the sentence, as a whole, was unreasonable or plainly unjust by reference to all matters that were relevant to fixing the sentence and fixing the non-parole period. Whether the non-parole period is appropriate, must be assessed not only on the basis of the whole of the circumstances of the case, but in the light of the head sentence.
3. It must be remembered that in setting the non-parole period, the sentencing judge's discretion is not fettered. In Connelly v Tasmania [2015] TASCCA 15, Wood J at [14] said:

"14 It can be seen that the court's discretion is not fettered. The factors set out in the sub-paragraphs may be taken into account, but the section allows the court to have regard to other 'such matters as it considers necessary or appropriate'. The section is also non-prescriptive in allowing the sentencing court to allocate its own weighting to the matters in (a), (b) or (c), or indeed, any other matters. In any particular case there may be factors that weigh for or against parole, and the court is entrusted with a wide discretion in balancing these considerations and determining the appropriate outcome. The role of sentencing aims such as rehabilitation and deterrence also bear on the exercise of discretion. Again, such matters are left to the court's discretion. The provision allows for cases where the court may, because of the particular circumstances, not allow any opportunity to apply for parole."

1. Whilst a consideration relevant to the setting of a non-parole period is the offender's prospects of rehabilitation, circumstances of significant gravity justify the imposition of lengthier non-parole periods. This is particularly so when the crime justifies the giving of prominence to denunciation and retribution, in that it re-asserts societal values and gives proper weight to the harm done to victims (Director of Public Prosecutions v NOP [2011] TASCCA 15 per Evans J at [41], cited in Connelly v Tasmania (above), Wood J at [23]-[24]).
2. In sentencing this crime and setting the non-parole period, the sentencing judge was entitled to, and given the gravity of the criminal conduct, was required to, in my view, give prominence to the need for general deterrence and denunciation, and acknowledgment of the grave harm caused from the appalling acts of family violence.
3. The overarching guiding principle in exercising the discretion to fix a non-parole period, is that the non-parole period should be "the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence" (Power v The Queen (1974) HCA 26, 131 CLR 623). The non-parole period ought to reflect the minimum period required to achieve the sentencing goals of prevention, punishment and deterrence.
4. In setting the non-parole period in this matter, the sentencing judge was clearly minded to those considerations. He said:

"Because Mr Lockwood has not been to prison before, and because of the positive factors that I have mentioned, I will make provision for parole, but I will fix a non-parole period that is longer than the shortest possible period. It will be the period that, because of the seriousness of his crimes, I consider to be the minimum period that he should spend in custody."

1. It is evident from those comments that it was the gravity of the crimes which, in the view of the sentencing judge, warranted the outcome that the appellant should serve a period of no less than ten years in prison. It was within the proper exercise of the sentencing discretion to set a non-parole period in excess of the minimum, given the gravity and duration of the offending. In my view, the learned sentencing judge did not err in fixing the non-parole period at ten years. The non-parole period did not render the sentence manifestly excessive having regard to the whole of the circumstances.
2. For these reasons, I was not satisfied that the sentence of imprisonment imposed was manifestly excessive, and I therefore joined in on the order, dismissing the appeal.

1. I agree with the reasons for judgment of Jago J. They embody the reasons why I joined in making the order dismissing the appeal.