Patil (a pseudonym) v The Queen; DPP v Patil

CRIMINAL LAW - Appeal - Conviction - Inconsistent verdicts - Rape, assault, threat to kill (16 charges) - Jury returned 10 guilty verdicts, 4 acquittals - Unable to agree on 2 charges - Same complainant - Whether guilty verdicts reconcilable with acquittals - Acquittals explained by particular circumstances - No rejection of complainant's credit - Verdicts not inconsistent - Leave to appeal refused.

1 The applicant ('S') entered into an arranged marriage with a woman ('K') whom he had only met once, the day before their wedding. He was 33 years old, she was 28. The marriage lasted for only six months.

2 K subsequently reported to police that S had raped her repeatedly during those months, and had been violent to her in a variety of ways. S faced trial in the County Court on multiple charges of rape and assault, and one charge of threat to kill. He was found guilty on 10 charges of rape, two charges of assault, one charge of assault with intent to commit a sexual offence, and the charge of threat to kill. He was sentenced to 9 years and 7 months' imprisonment, with a non-parole period of 6 years and 7 months.

3 The jury acquitted S of three charges of rape and one of indecent assault. On two further charges of rape, the jury were unable to reach verdicts. He now seeks leave to appeal against conviction on the ground of inconsistent verdicts. He submits that there is no logical or rational explanation for the jury's having been satisfied beyond reasonable doubt on 14 charges but having failed to be so satisfied on the remaining six charges.

4 For reasons which follow, this ground must be rejected. The 14 guilty verdicts reflect the jury's acceptance of K as a credible and reliable witness. The four acquittals are readily explained by the particular circumstances relating to those charges: the first three concern alleged offending early in the marriage, at a time when K acknowledged she had been happy, and the fourth is explained by the evidence of an eye-witness, who cast doubt on one critical detail of K's account.

5 For her part, the Director of Public Prosecutions has appealed against the sentences imposed on S. The Director submits that both the individual rape sentences and the extent of cumulation are manifestly inadequate. For reasons which follow, we would uphold the Director's appeal. As will appear, this was extremely serious offending and substantially higher sentences were called for. S will be resentenced to a total effective sentence of 14 years' imprisonment, and we will fix a non-parole period of 10 and a half years.

6 After the wedding ceremony on 23 February 2015, K went to S's home, which he shared with two other men who were friends of his. That night, according to K, S asked her to have sex with him but she said she was not mentally prepared. She asked him to wait and give her some time so that they could get to know each other. He went ahead and penetrated her vagina with his penis but stopped when she told him it hurt. He then digitally penetrated her and she started bleeding (uncharged).

7 The following day, the couple were due to go to the home of S's parents. Before they left S's home, according to K, S began touching and kissing her. She told him that, because of the bleeding the previous night, she was feeling dizzy. She asked if they could talk. She said to S that, since she was in pain, he should control himself.

8 According to K, S responded that she was his wife and he had 'the right to do this'. Despite her pushing his hand away and asking him to stop, he removed her leggings and had sex with her. He touched her vagina with his tongue, telling her it would not be painful. She asked him to stop but he did not listen (charge 1 - rape - acquitted).

9 Later that day, in the master bedroom of the home of S's parents, S climbed on top of K and started touching her. According to K, she loudly told him to stop and tried to push his hands away. When S then placed his penis partially into K's vagina, K pushed him back (charge 2 - rape - acquitted).

10 Charge 3 occurred on 10 March 2015. Arrangements had been made for K to take her mother to the airport. She did this, returning home mid-morning, and went back to bed with S. Sometime later S asked her to get him some tea. She returned with the tea and put it on the bedside table. He asked her to come into the bed with him. She refused and turned to go out of the room.

11 S grabbed her by the wrist and painfully twisted her arm behind her back. He told her that when he asked her to do something, she should 'listen and obey' and not 'answer [him] back'. S forcefully took K's clothes off. S shook her head by the hair and held her by the throat against the bedroom wall. She started crying. S forced his penis into her vagina as K was saying 'No' and trying to resist him (rape - convicted).

12 A few days later, on 15 March, K attended the opening of a restaurant where S had a new job. On the way home, they had an argument. When he asked her to come to the bedroom, she said she was menstruating and wanted to go to sleep. According to K, he 'forcefully' put his penis into her mouth (uncharged) and then penetrated her vagina with his penis (charge 4 - rape - acquitted).

13 On 3 April 2015, K returned from India where she had attended her brother's wedding. Upon her return, S was angry because she had stayed abroad longer than the period for which he had given her permission. He penetrated her orally (charge 5 - rape - convicted) and vaginally (charge 6 - rape - convicted). He slapped her, threatened to file a false police case in India against her sister and threatened the life of her niece. He threatened to kill her (charge 7 - threat to kill - convicted). Later that day, he again introduced his penis into S's vagina against her will (charge 8 - rape - convicted).

14 On 12 May 2015, K had planned to go to a birthday party for a friend of her sister's. S would not take her. He got very angry with her and said, 'I'll show you what you are worth'. He threw her on the bed, placed a pillow over her mouth and began pulling her clothes off. Despite her physical resistance, he penetrated her vagina with his penis. While he did so, he was grabbing her by the neck very tightly (charge 11 - rape - convicted).

15 On 17 May 2015, S asked K to leave the house. She stayed overnight with her sister's friend. When she came back the following day, S had forcible vaginal sex with her, despite her attempts to free herself and despite her saying to him, 'Stop. Please don't do [this]. I am in pain' (charge 12 - rape - convicted).

16 On 2 June 2015, K initially told S that she would have sex with him, provided that it was not painful for her. S then said that they would try a new sexual position. K refused, saying that whenever he tried a new position it gave her 'a lot of pain'. When S persisted, K refused 'two or three times'. S then forced her mouth open and pushed his penis into her mouth (charge 13 - rape - convicted). He then penetrated her vagina digitally (uncharged) and, finally, with his penis (charge 14 - rape - convicted).

17 In June 2015, K's cousin ('P') came to stay. K and P went shopping and bought some jackets for S. He was unhappy because they had been bought at a sale. According to K, he told her that she did not respect him. He pulled her clothes off and, as she was trying to free herself, they both fell to the floor. S was on top of her and had 'started being forceful' when P opened the door. S then left the room (charge 15 - indecent assault - acquitted).

18 Charge 16 occurred between 8 and 12 June 2015. S was pressuring K for sex. She refused, saying, 'I cannot tolerate any more of what you are doing to me'. He then said, 'I will show you your actual worth'. He pulled his penis out and urinated on K (assault - convicted).

19 Between 20 June and 1 July 2015, following a meal with S's family, he accused K of not showing his family sufficient respect. He said to her, 'I think I need to show you your worth again'. He took her into the bathroom, put her mouth on the toilet seat and urinated on her (uncharged). He then pulled her by the hair into the bedroom where, ignoring her requests to stop, he penetrated her vagina with his penis (charge 17 - rape - convicted). Afterwards, he made her sleep on the floor.

20 On 8 August 2015, S pushed K onto the bed and forcibly removed her leggings (charge 18 - assault with intent to commit sexual offence - convicted) and bit her neck (charge 19 - assault - convicted).

21 On 11 August 2015, S - incensed that K had told others of how he had been treating her - beat her, bit her on the breasts and raped her (charge 20 - rape - convicted). He then put her out of the apartment without her clothes. She was outside, naked, for 45 minutes.

22 On 1 September 2015, K fled interstate to where her sister lived. She has since divorced S.

23 The single proposed ground of appeal contends that:

The verdicts of the jury on counts 3, 5, 6, 7, 8-14 inclusive, and 16-20 inclusive are inconsistent with the verdicts of acquittal on counts 1, 2, 4 and 15, and/or reflect a compromise within the jury.

24 According to the written case filed on S's behalf:

All of the incidents constituting the 20 counts against [S] relied upon the credibility and reliability of [K's] account. Her evidence was of being forced to have intercourse by [S] on multiple occasions without her consent. This was not a case in which the quality of her evidence varied between incidents; it was consistent. It was not a case where the complainant was more specific in relation to some incidents than others, and the jury might have chosen to accept parts of her evidence and reject others.

For charges 1, 2 and 4, the jury must have had reasonable doubt about whether consent was not forthcoming from [K], and possibly about whether the events happened at all. In this overarching context, it is not rational for the jury to have had no reasonable doubt about the 16 counts for which findings of guilt were made,[2] but to have reasonable doubt about counts 1, 2, 4 and 15.

25 In oral argument, senior counsel for S (who did not appear at the trial) submitted that the real issue in the trial was whether any of the alleged rapes (and assaults) had actually occurred. So far as the alleged rapes were concerned, counsel submitted, the question for the jury was whether there had been any penetration at all. According to the submission, there was no real issue as to the other elements - whether there was an absence of consent and whether S had been proved to have lacked a reasonable belief in K's consent.

26 As defence counsel made clear to the jury from the outset, the defence case was that there had been no rapes and no violence. But that did not have the consequence of removing issues of consent, or S's belief in consent, from the jury's consideration. On the contrary, as the prosecutor made clear, the issue for the jury was whether the alleged acts of sexual penetration occurred 'in the circumstances as described by [K]'. The prosecutor said to the jury in final address that they should approach each allegation in the following way:

And if you are satisfied that [the alleged event] took place in the circumstances she described, then it will follow quite naturally that you will be satisfied on the rest of the elements, for example about her not agreeing, not fully agreeing or consenting to the sexual acts the accused took part in.

27 The issue in the trial, in short, was whether S had on any of the alleged occasions forced K to have sex with him against her will. It was common ground in the trial that there had been regular sexual intercourse between them. At one point in the cross-examination, defence counsel put to K that during the marriage 'there were days where there was no sex at all'. K accepted that 'there were a few days when we never had sex'. She also agreed with counsel's proposition that there were times when she would agree to sex and times where she would not agree. Her estimate was that, on perhaps 30 per cent of the occasions when sex was proposed by S, she had agreed.

28 The 14 guilty verdicts related to conduct alleged to have occurred on 10 different occasions between March and August 2015. The jury were obviously satisfied beyond reasonable doubt that the account which K had given of S's conduct on those occasions was true. The four acquittals related to conduct alleged to have occurred on three occasions early in the marriage - on 24 February and 15 March - and on one occasion in June.

29 In our view, there is no difficulty in reconciling that small number of acquittals with the 14 guilty verdicts. First, as senior counsel for the Director submitted, the evidence on which the guilty verdicts were founded had strong unifying features. K's evidence of what occurred on those occasions included clear descriptions of her having told S that she did not want to have sex, or having asked him to stop, and of him forcing himself on her with sometimes quite extreme violence and despite a physical struggle between them.

30 By contrast, the evidence supporting the charges on which S was acquitted lacked those features and, moreover, had particular features which account for the jury's apparent doubt. Thus, charges 1 and 2 concerned alleged conduct on the day following the wedding (24 February 2015). Early in the cross-examination, defence counsel put to K that, when S would get home from work, she was happy to see him. She replied:

For first few days, yes, I was happy. ... first few days were good.

31 At the end of the cross-examination, counsel put to K that, when interviewed by police, she had said, 'The first 15 days were good'. In response, K said:

I was referring to that he didn't beat me up in those first 15 days. He didn't urinate or he didn't put any pillow on my mouth, and he never dragged me from the throat or he never slapped me.

32 Unsurprisingly, defence counsel drew attention to these statements in his final address to the jury. Referring to her statement that 'the first 15 days were good', counsel submitted:

How can that be true if what she says to you [now], and said later, that she was forced to have sex on the 24th, on two occasions? ... [c]onsider what she describes on the 24th, which is being forced to have intercourse without her wishes, without her consent. How can that naturally fit within, 'the first 15 days were good'? It just doesn't work.

33 In relation to charge 4, K's evidence was much less clear than in relation to other charges. She said that, on this occasion, she told S that:

My periods are on and we cannot do this and we can go to sleep.

He would normally do whatever he would, he would like to do and whenever the periods were on, he would spread a towel on ...

At this point, the judge intervened to ask (through the interpreter) that K concentrate on the night in question. K then said:

He pulled my clothes, he has beaten me up and he started doing, ah, the private parts.

Asked to explain what she meant by 'beaten me up', she said:

Ah he would, ah, he ah, twisted my arms, then he would um, put his legs on my legs and twisted them. And he would put all the weight on my legs.

The judge intervened again, to remind K to describe what had happened on this particular night. K then replied:

I mentioned everything in my statement that on which day what happened. But my memory's not that sharp now and ... it has been a long time.

34 The final acquittal was on charge 15, a charge of indecent assault. Proving the element of indecency depended upon the jury accepting K's account that, on this particular occasion, S had pulled her clothes off in the course of their argument. The obvious difficulty on this charge came from the evidence of K's cousin ('P'), who said that she went to the bedroom after hearing K screaming. When she entered the room, P said, she found K fully clothed. In all other respects, P's account corroborated what K had said. P discovered them on the floor, with S on top of K and wearing only his underpants.

35 In the circumstances, it is understandable that the jury had a doubt about whether the clothes had been removed. That K herself might have been mistaken was unsurprising, given the number of separate occasions on which S had engaged in similar conduct. The doubt about the removal of the clothes on this occasion did not, of course, entail any doubt about K's credibility in general.

36 Although the ground of appeal made no reference to charges 9 and 10 - on which the jury were unable to reach verdicts - counsel for S submitted orally that the jury's failure to agree on those charges further demonstrated the inconsistency in their conclusions. We do not agree. There were, again, features of K's evidence which make the failure to agree understandable, without implying that the jury had any doubt about K's credibility.

37 For example, on charge 9, after describing S taking photos of her while she was naked, K said: 'After that he had sex with me forcefully'. When asked to explain how that had occurred, she said:

I was standing in the corner and he took me from there and threw me onto the bed I think ... I cannot exactly remember whether he pushed me onto the bed or he took me forcefully to the bed ... And then he had sex with me ... I tried to stop him and I said the stop word a few times.

38 K was then asked to describe how she had tried to stop him. She responded as follows:

Normally I would do that with my hands and legs. I would move around my hands and legs and I would ...

39 As on other occasions, the judge asked the interpreter to inform K that the Court did not want to know 'normally what she would do'. She was being asked to describe what happened on that occasion. When this was conveyed to K through the interpreter, she said:

40 As we have already said, given the number of incidents of alleged sexual violence, the jury were entitled to regard it as unsurprising - and not damaging of K's credit - that she did not have a clear recollection of exactly what occurred on each occasion. Again, on charge 10, there was obvious ambiguity about the question of consent. K described how she had felt very happy after S gave her a surprise birthday party. She had agreed to have sex with him provided that he did not 'do it in a bad way and a forceful way'. She went on:

[H]e was doing it forcefully and it was hurting, and I told him to stop, I said 'You just told me that you will not be forceful with me'.

41 When asked what happened next, K said she could not remember whether S had stopped or not. Given that the sexual intercourse had commenced consensually, the jury may well have been left in doubt as to whether S in fact stopped once K asked him to.

42 In our view, there was nothing irrational or inexplicable about the different conclusions arrived at by the jury: 14 guilty verdicts, four acquittals and two charges on which they could not agree. On the contrary, the differential verdicts would seem to reflect the outcome of a very careful process of deliberation, with the jury paying close attention to the evidence relied on in support of each of the charges.

43 It is clear, in our view, that the jury accepted K as a credible and reliable witness. At the same time, paying proper regard to the high standard of proof required, the jury viewed the specific areas of uncertainty in the evidence as raising a doubt. In those circumstances, the jury properly gave S the benefit of the doubt.

44 For these reasons, leave to appeal against conviction must be refused.

Assault with intent to commit sexual offence[6]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991****:

Other relevant orders: Pursuant to s 6F Sentencing Act 1991 the respondent was sentenced as a serious sexual offender in respect of charges 6, 8, 11, 12, 13, 14, 20, 7 and 18.

46 Self-evidently, this was extremely serious offending. Surprisingly, however, the sentencing judge's reasons did not include any assessment of the seriousness of the offending, nor did his Honour express any view about S's moral culpability. After referring to the 'strong support' provided to S by the nine character references relied on, his Honour commented that it was 'impossible' to reconcile the picture of S conveyed by those references with 'the harsh and brutal husband evidenced by the facts before this court'.[7]

47 His Honour then stated - without comment - that he had been referred by counsel to the following passage from Johns v The Queen,[8] a case of rape in marriage:

In each instance, the [offender] treated the complainant as his property, not as an equal, nor as a person worthy of his respect. ... [T]hat is abhorrent and cannot be tolerated.[9]

48 Again without expressing any view about the gravity of S's offending, his Honour proceeded to set out the matters relied on in mitigation, as follows:

(a) this was S's first time in jail which, it was said, was having 'an understandable impact upon him', particularly because he could not be visited by his family;

(b) because of the seriousness of the offending, S would certainly be deported to India when he became eligible for parole, thus putting paid to '11 years of hard work';

(c) S had no prior convictions;

(d) S had strong personal support;

(e) there had been a delay of four years between the offending and sentence, which was not explained; and

(f) while S had been on remand, both his parents had died, and he had been unable to attend their funeral services.[10]

On the basis of the jury findings, clearly the prisoner has an issue as to how he acted within his marriage, and how he treated his wife, compared to how he acted in public. Whether there were cultural factors at the back of such, I am unsure. Of course such are, irrelevant. No culture condones rape or violence against women. Although my enquiries as to current Indian law is that a conviction of rape within marriage, is still not possible, pursuant to s 375 of the Indian Penal Code. There are two exceptions, if a rape takes place during a judicial separation or the wife is under the age of 11 years.

This Court is bound by the laws of Victoria, in this instance, s 38(1) of the Crimes Act. Legal responsibility for rape in a marital relationship in this State dates from provisions inserted in the Crimes Act by Parliament in 1985, to abrogate what Parliament then described as, 'obsolete rules of law'.

Doing as best I can to be merciful to Mr Patil and taking into account all factors and cases that have been referred to me by counsel, I sentence Mr Patil as follows.[11]

50 With respect, it is not clear why his Honour thought it necessary to make enquiries into the state of Indian law or to record in his reasons that rape in marriage was not a crime in that country. Those matters were wholly irrelevant to the sentencing task. Nor did his Honour identify what features of the case he viewed as calling for a 'merciful' sentence, no such submission having been advanced on the plea.

51 In relation to delay, his Honour noted the difficulty of assembling witnesses, and of finding time within the court calendar for a trial which lasted 13 days. His Honour said:

I accept that as a result of such delay, these allegations have hung over him and despite that, he has continued to work, earned the high plaudits that I have referred to, and has not further offended.

52 The submission for the Director was that the individual rape sentences - of 6 years' imprisonment for nine of the charges, and 7 years for the other charge - did not reflect the objective gravity of the offending. The submission relied on the decision in Jurj v The Queen,[12] in which the Court listed features typically taken into account by sentencing courts (and by this Court on appeal) in assessing the gravity of a particular offence of rape.[13]

53 From that list, the Director identified the following as aggravating features of the present case:

(a) the offending was premeditated;

(b) it occurred over a period of time;

(c) on at least some of the occasions, K was raped more than once;

(d) the offending involved both violence and threats of violence;

(e) K was humiliated and degraded; and

(f) S ignored her pleas for him to stop and her requests that he not insist on having sex.

54 A further feature relied on was K's particular vulnerability. The Director pointed out that the marriage permitted K to remain in Australia and she believed that S could effectively have her deported. In her evidence, she said he made that threat repeatedly: 'He has said that to me many times whenever he would beat me up'. According to the submission, K was

for all intents and purposes, quite vulnerable to [S]. It was in this condition of vulnerability and relative isolation that [K] was offended against. [S], it appears, exploited [her] powerlessness and vulnerability.

55 The Director relied on an additional feature, not mentioned in Jurj, namely that this offending was committed in breach of trust. It may be accepted, as senior counsel for S submitted, that the relationship of trust between husband and wife is of a different character from that which exists between, for example, parent and child or teacher and pupil. But it is undoubtedly a relationship of trust, at a most fundamental level. Each spouse depends on the other for respect and care and protection. As K repeatedly said to S, that trust obliged him to respect her wishes in relation to sexual activity between them and, in particular, to refrain from causing her pain or discomfort or distress.

56 By repeatedly forcing K to have sex with him, over her verbal protests and despite her vigorous physical resistance, S was committing the gravest possible breaches of that fundamental trust. He was, as he told her, asserting what he regarded as his 'right' as her husband to have sex with her whenever he chose. It was her duty, he told her, to comply. His only concern was with his own sexual gratification and he was, as the guilty verdicts establish, prepared to inflict serious violence on K to achieve that purpose.

57 When all of these aggravating features are taken into account, this can only be regarded as very grave offending. To force K to have sex when he knew that she did not want to was bad enough. For him to overpower her using physical violence made it considerably worse. And the acts of humiliation and degradation had also to be taken into account. The action of urinating on K was simply despicable.

58 Unsurprisingly, the offending has had a deep and lasting impact on K. The judge summarised her victim impact statement in these terms:

Clearly due to the totality of the criminality committed upon her by her husband, she has suffered from emotional impairment, she suffers anxiety, shame and lack of trust. As to the charge of assault by urinating on her, and the additional uncharged occasion of urination, she still has additional upset because she continues to relive those acts. As a result of the totality of this criminality she needs counselling, she is isolated and has panic attacks. Worst of all, unfortunately it would appear that due to these crimes which were committed upon her by the prisoner, she has become estranged from her own family. She says she is particularly lonely.[14]

59 The principal matter relied on in mitigation in this Court was the delay in the charges coming on for trial. The last of the offences was committed in August 2015; the police did not interview S until June 2016; and he was not sentenced until October 2019. Invoking well-established principles, the defence submission on the plea, and again in this Court, was that this was a powerful mitigating factor.[15]

60 The sentencing judge accepted that delay was 'a powerful factor' and that S was able to rely on both of the key considerations to which delay of this kind can give rise: the unfairness of having the uncertainty of prosecution hanging over his head - in this case, with the accompanying anxiety about the prospect of deportation; and his efforts at rehabilitation since these offences were committed, through sustained employment and avoiding any further offending.

61 We are nevertheless persuaded that the individual rape sentences are manifestly inadequate. They simply do not reflect the seriousness of the offending, as described earlier in these reasons. Substantially higher sentences were called for. S was not, of course, entitled to a discount for pleading guilty. Nor could he call in aid any expression of remorse.

62 In our view, the appropriate sentences on the individual rape charges should be 8 and a half years' imprisonment on charges 11-14 and 9 and a half years' imprisonment on charges 3, 5, 6, 8, 17 and 20. The higher sentences for the latter group of charges reflect the gravity of the associated violence.

63 In arriving at these sentences, we have had regard to the decisions of this Court in GC v The Queen,[16] Johns,[17] Samuels v The Queen[18] and, most recently, Director of Public Prosecutions v Mokhtari.[19] We accept the submission of senior counsel for the Director that, although the factual settings are different, there are relevant similarities between the present case and Mokhtari, as illustrated by the following passage from that decision:

The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.

In a case like the present, however, both the objective gravity of the offence and the offender's moral culpability are greatly increased. Here, the offender cruelly exploited an innocent and vulnerable victim and, against her protests, raped her repeatedly. Adapting what was said in Jurj, the ignoring of [the victim's] obvious distress, and her pleas to him to stop, underlines the torment which [the offender] inflicted on [the victim]. He treated her

not as a person deserving of respect but as a chattel, a thing to be used for [his] sexual gratification in whatever way it suited [him].

Here, as in that case, the prolongation and repetition make the offending especially serious. For the reasons given in DDJ, [the offender's] culpability in relation to the later rapes should be seen as greater than in relation to the earlier rapes, given his clear awareness of [the victim's] ongoing desperation and her horror at the prospect of further sexual abuse.[20]

64 We turn finally to the question of cumulation. The Director's notice of appeal included a separate ground, contending that the judge had applied the principle of totality:

in a matter that undermined the legislative policy inherent in s 6E of the Sentencing Act 1991.

The particular complaint was that the judge had ordered:

excessive concurrency as between all individual sentences in respect of which the respondent was to be sentenced as a 'serious offender'.

65 In the present case, S fell to be sentenced as a serious sexual offender on charges 6, 7, 8, 11-14, 17,[21] 18 and 20. In accordance with s 6E, a presumption of cumulation applied to the sentences imposed on those charges. As can be seen from the sentencing table set out above, however, the orders for cumulation were very modest indeed, resulting in a high degree of concurrency. In this context, reference should be made to what was said by Redlich JA in Gordon v The Queen[22] regarding the relationship between s 6E and the totality principle:

A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.[23]

66 For these reasons, the Director's appeal against sentence will be allowed and S resentenced as follows:

Assault with intent to commit sexual offence[27]

Other relevant orders: Pursuant to s 6F Sentencing Act 1991 the respondent was sentenced as a serious sexual offender in respect of charges 6, 7, 8, 11, 12, 13, 14, 17, 18 and 20.

1. [1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant's name.

[2] This figure is incorrect, as only 14 findings of guilt were made.