R v Brownlowe

(ii) error in the application of the principles of parity.

(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of the detention was to enable the applicant and Pate to commit the rapes; s90A of the Crimes Act, under which (now repealed) section the charge was brought, contains as an element of the offence that the victim is detained "for ransom or for any other advantage to any person".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:

(i) rape committed in company; (ii) rape committed by a person in a position of responsibility towards the victim; (iii) rape committed by a person in whom the victim has placed trust by virtue of an office or employment; (iv) abduction and holding captive; (v) rape of a child or vulnerable victim; (vi) racially aggravated rape; (vii) repeated rape in the course of one attack; (viii) rape by a man knowingly suffering from a life-threatening sexually transmissible disease.

A further aggravating feature later identified was: "the covert use of a drug to overcome the victim's resistance and/or obliterate his or her memory of the offence." 35 It is to be observed that, of the original list, the first, the fourth and the seventh exist in the present case. The fact that no less than three of the aggravating features were present suggests an increment on the eight year starting point. And, although the use of the drug was not covert, and its purpose was not apparent, the complainant was forced to consume both amphetamines and alcohol. It is to be observed that the eight year starting point was said to be justified by the presence of any of those features. 36 In considering the 15 year starting point offences, those described in Billam as involving a "campaign of rape", Lord Woolf included cases involving repeated rape of the same victim over a course of time. That is certainly present here, and it would not be difficult to conclude that the applicant could be fitted into that category. 37 It seems reasonably clear from the judgment that the starting points were intended to be what, in NSW, would be called the non-parole period. I say this because, in para [19] of the judgment, there is a reference to "the minimum time that an offender convicted of rape should actually spend in custody", this in the context that the sentence guidelines represent sentences imposed after trial, without the conventional discount attracted by a plea of guilty. Regard to the sentences imposed in the individual cases associated with the guideline judgment reinforces the view that the "starting points" were intended to be minimum custodial terms. 38 Particular attention was drawn to the individual case of Lackenby, who had been sentenced to ten years' imprisonment, concurrent, in respect of two offences of rape and one of attempted rape, to which he pleaded guilty. It appears that the ten years was the term which he was required to serve - that is, the minimum term or non-parole period. 39 Thus, on close examination of the reasoning in Millbery, the applicant's sentences appear to be in perfect synchronicity with the English sentencing patterns. In Lackenby it was said that: "The period of his licence was also extended for seven years."

I take this to mean that the total term of the sentence (in the language this Court would use) was of seventeen years. 40 It is to be observed that Lackenby had pleaded guilty to the three offences I have mentioned. Had he not done so, then applying the sentencing discount relevant to a plea of guilty that applies in NSW, his sentence would have been more than 22 years, and his non-parole period more than 17½ years. And that, it is to be recalled, was in respect of two offences of rape and one of attempted rape, with no detention, no co-offender, no administration of drug. 41 In my opinion, notwithstanding my view that this Court does not need to go to other jurisdictions for guidance in relation to sentencing patterns, and that the decision has little if any relevance, to the extent that it bears upon the outcome of the present case, the decision in Millbery does nothing other than to confirm that the course taken by Job ADCJ was very substantially in conformity with the English sentencing guideline.

(ii) parity 42 An attempt was made on behalf of the applicant to show that, by reason of contrast with the sentences imposed upon Pate, the applicant had a justifiable sense of grievance in accordance with the principles stated in Lowe v The Queen [1984] HCA 46; 154 CLR 606; Postiglione v The Queen [1997] HCA 26; 189 CLR 295; Siganto v The Queen [1998] HCA 74; 194 CLR 656. The complaint is unsustainable. It was accepted that the applicant was the instigator of the offences. He was significantly older than Pate. He was charged with more than double the number of offences. Pate pleaded guilty. He gave evidence against the applicant. There is no basis for a finding that the applicant was entitled to rely on considerations of parity. 43 Specific parity complaint was made in relation to the question of accumulation. It was pointed out that, in sentencing Pate, Hosking DCJ imposed wholly concurrent sentences, while, in sentencing the applicant, Job ADCJ wholly accumulated six sentences upon one sentence. I do not see this as a relevant consideration. The real point of the application concerns the overall aggregate sentence.

(iii) was the sentence manifestly excessive? 44 It remains to consider whether, as a matter of totality, the overall sentence imposed has been shown to be manifestly excessive. In this regard, it is relevant to return to the brutal and sustained nature of the offences. The complainant was held, terrorised, for almost 24 hours. She was subjected to repeated, and varied, forms of sexual humiliation. Her life was threatened. She was forced to consume drugs and alcohol. She had her face covered, with a balaclava taped to her head. Her hands were handcuffed. 45 I am not persuaded that the overall sentence has been shown to be manifestly excessive. I would grant leave to appeal but dismiss the appeal. 46 BARR J: I agree with Simpson J, save that I do not think that any conclusion can be drawn from Regina v Millbery & Ors 2002 EWCA Crim 2891; [2003] 2 All ER 939. In my opinion sentence cases from foreign jurisdictions are of no assistance as indicating appropriate sentencing ranges in New South Wales. Conditions in such jurisdictions are likely to be different from those that obtain in this State. Maximum sentences are different; sentence structures and components are different; parole rules are different; offences may be different. Judges in such jurisdictions may take a more serious or more lenient view than New South Wales judges when deciding how to sentence. In my opinion such cases ought not to be cited for the purpose of indicating relevant sentencing ranges.

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