(i) the Pearce principles
26 The first matter, the complaint about the application of the principles stated in Pearce, was in reality a complaint about the total accumulation of the sentences imposed in respect of the rape offences on the sentence imposed in respect of the detention offence. That was, in turn, in reality a complaint about totality.
27 The reference to Pearce was a reference to paragraph 40, in which the majority (McHugh, Hayne and Callinan JJ) said:
"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means the defences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."
28 In its written submissions the Crown had argued that there were no common elements between the rape offences and the detention offence. That was challenged by senior counsel for the applicant. I would reject the Crown's contention. There was a good deal in common between the detention offence and the rape offences. The specific purpose of the detention was to enable the applicant and Pate to commit the rapes; s90A of the Crimes Act, under which (now repealed) section the charge was brought, contains as an element of the offence that the victim is detained "for ransom or for any other advantage to any person". The "advantage" was the sexual activity in which the applicant and Pate engaged. There were common elements as to the timing of the offences, and the place where they were committed. They were committed by the same two co-offenders and on the same victim. It is, in my view, quite wrong to say that there were no common elements.
29 But that does not mean that either of the sentences had to be reduced by reason of the common elements. It does not mean that the applicant was punished twice for the commission of the elements that were common. The applicant was punished for having detained the complainant over a period of almost 24 hours; and he was punished also for the series of rapes that he committed upon her. I see no reason to conclude that there was any element of double punishment in the structure of the sentences. Indeed, as I understood senior counsel's submissions, he accepted that the individual sentences, of twelve years in each case, with a non-parole period of nine years in respect of the detention, and a non-parole period of six years in respect of the rape offences, were not outside the range legitimately available. The entire focus of the attack was upon the accumulation.
30 In oral argument senior counsel urged upon the Court the decision of the English Court of Appeal, Criminal Division in R v Millbery; R v Morgan; R v Lackenby [2002] EWCA Crim 2891; [2003] 2 All ER 939. This was a guideline judgment delivered by the Court of Appeal in respect of sentencing for offences of rape. It was proposed that this Court should find some guidance in respect of the appropriate sentence for a rape offence from the English guidelines. I expressed disquiet at the time that submission was put. My disquiet is not in any way diminished after reflection. While I appreciate the benefits that courts of one jurisdiction might gain from courts of another in relation to principles of law, particularly those courts in jurisdictions having a common heritage, I do not accept the proposition that sentencing practices are included in the kinds of matters on which such benefits may be gained.
31 Having said that, the decision in Millbery could afford the applicant no comfort at all. Reliance was placed upon the following paragraph, which was drawn from an earlier guideline judgment in R v Billam [1986] 1 All ER 985; 1 WLR 349. That paragraph relevantly reads as follows:
"For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years. At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime on a number of different women or girls. He represents a more than ordinary danger and a sentence of fifteen years or more may be appropriate. Where the defendant's behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate."
32 The Court in Millbery effectively readopted these guidelines for the purpose of the exercise before it. The Court was in fact reconsidering these guidelines in the light of advice given to it by the Sentencing Advisory Panel, apparently because of legislative changes since the judgment in Billam.
33 Senior counsel argued that the mid-point of the sentences proposed in Millbery, a starting point of eight years, would be appropriate for the present offences. Of the three offence profiles outlined, I accept that the second most nearly coincides with the applicant's offences. They were committed by two men acting together, and they involved abduction. Certainly they were not offences committed by an adult male without any aggravating features (although it is difficult to see any features mitigating to these offences) to bring them within the profile that is said to justify a starting point of five years; and, subject to what appears below, in [36], they were not part of a campaign of rape, warranting consideration of a sentence of 15 years.
34 In reconsidering offences attracting the eight year starting point, Lord Woolf identified features the presence of any one of which were said to justify that starting point. These were what might, in NSW terminology, be called "aggravating features". They were listed as: