R v Hall

Facts

1. The facts found by the judge for the purpose of sentencing were not the subject of any dispute in this Court. The following is a summary largely drawn from the Crown's written submissions to which counsel for the respondent took no issue.
2. On 25 March 1990, the respondent hired a motel room and contacted an escort agency. The victim attended at the motel room at around 10pm at the direction of the escort agency. She was 23 years old. It was her first day working for the escort agency. The respondent was 32 years old.
3. Soon after the victim arrived at the motel room, the respondent came up behind her with a knife that was similar to a large flick knife. He threatened her, telling her that she would get hurt unless she did exactly what he told her to do. She thought that he might cut her throat with the knife.
4. The respondent forced the victim to her knees. The knife remained at her neck. She was facing the wall and when she felt the knife leave her neck she turned around. The respondent came back, held the knife at her neck and told her that if she did not continue to face the wall he would stick the knife into her. She begged him not to hurt her. He said, "If you do that again I'll fucking kill you."
5. The respondent applied sticking plaster to the victim's eyes so that she could only see out of the corner of her right eye. He dragged her by the ear, shoved her mouth onto his penis and forced her to perform fellatio on him by pushing her head up and down on his penis for 10 to 15 minutes.
6. The respondent then dragged the victim by the ear onto the bed and told her to do exactly as he said or she would pay the consequences. He said that he would use the knife. He thrust his penis all the way into her vagina. He then thrust backwards and forwards for a further 10 to 15 minutes and she felt him ejaculate inside her. He was not wearing a condom.
7. The respondent left the hotel room soon after the offences, leaving the victim in the shower, her eyes still covered by the sticking plasters.
8. The victim made an immediate complaint to the taxi driver who was waiting outside the motel for her. Police were called by the motel's reception and she was taken to Wollongong Hospital. Examination revealed semen on high vaginal, low vaginal and vulval swabs and smears.
9. The police investigation was closed in 1990 when no suspect could be identified. In 2007 the respondent was charged with an offence in Queensland (failing to pay for petrol). A DNA sample was obtained and stored. At some unspecified time, details were placed on the national DNA database. New South Wales police were notified in 2010 that a DNA profile matching the respondent and linking him to the sexual assaults had been obtained. For reasons not disclosed in the material provided to this Court, a warrant for the respondent's arrest was not issued until 9 August 2013. He was arrested in Queensland on 24 September 2013. Aside from the fact that the respondent defended the charges there is no explanation for the subsequent delay until the trial held in late 2016. Sentence proceedings were then delayed, partly as a result of the respondent undergoing a hip replacement operation.
10. A victim impact statement was tendered in the sentencing proceedings without objection. The emotional trauma the victim experienced as a result of the respondent's attack upon her has been substantial and has affected her life in many ways. Moreover, it has remained with her to the present time.
11. After concluding his recitation of the facts of the offences the judge described them as involving "objectively quite terrible criminal conduct, which demands a response appropriately reflective of the community's abhorrence for and condemnation of such conduct".

Finding as to the seriousness of the offences

1. The judge noted the following matters bearing upon the objective seriousness of the offences: ● The offending "was of relatively short duration from beginning to end. The whole incident seems likely to have been no longer than 20 or 30 minutes or so." ● The victim was a "vulnerable person by reason of her occupation and the location. She … became a soft target for a man to exert physical superiority over her." ● There was "some limited physical violence in the form of a degree of rough handling" but it was "limited and no substantial or lasting physical hurt or wounding inflicted". His Honour stated that this "operates to take this offending away from the most serious end of the spectrum of conduct that might be caught by the offending". ● There was "a degree of psychological hurt, which has plainly endured, because of the nature and circumstances of the offending, including no doubt the implicit threat of violence … The offender intentionally created fear in the victim in order to perpetrate the offences and obtain compliance. However, that is a circumstance captured by the elements of counts 1 and 3, and accordingly does not operate to aggravate the offending." ● The harm or suffering disclosed in the victim impact statement was "precisely the sort of harm or suffering that one might reasonably expect … it would be wrong to include it as an aggravating factor". ● "The victim was handled and spoken to in a manner intended to cause, and which did in fact cause, fear, humiliation and degradation. This is exemplified in particular, among other matters, by the placing of sticking plaster over the victim's eyes." ● Counts 1 and 3 were not aggravated by the presence of a knife. (This is the subject of a ground of appeal and will be discussed further below.) ● There was a limited degree of planning; it is likely, but not proved beyond reasonable doubt, that the offending conduct was contemplated at the time the services of the victim were booked.
2. His Honour concluded: "In my assessment, though it is a long way from the most serious conduct that might be caught by these offences, this is objectively very serious criminal conduct."

Personal circumstances of the respondent

1. The respondent was born in 1957 and was aged 32 at the time of the offences. At the time of sentencing he had been with his wife for 29 years. His wife had three daughters from a previous marriage who the respondent also raised from when they were very young. There were six grandchildren, one of whom the respondent and his wife had raised as their own. The judge noted that the respondent was close to his step-children and their children and had been an important positive influence for them. He was the only stable father figure in their lives. The judge also noted that the family was shattered by the proceedings and the convictions, and were expected to suffer further in the event that the respondent was incarcerated.
2. The respondent had worked as an earthmoving subcontractor and was well-regarded by customers and colleagues. He had also given selflessly to the community by way of volunteering for various organisations. His contributions in respect of bush fires in New South Wales in 1994 and floods in South-East Queensland in 2011 had been recognised in letters and certificates of appreciation from government authorities.
3. The respondent's wife had health problems that prevented her from working. She was in receipt of a disability support pension and was otherwise financially reliant upon the respondent. The stress and anxiety of the proceedings, together with the financial hardship arising from legal costs had exacerbated her health problems.
4. The respondent and his wife had to sell the family home in order to meet the legal fees and expenses of defending the proceedings. Others observed a marked decline in the respondent over the four years since his arrest and he was being treated for depression. The judge noted that "[h]e is assessed as being at chronic medium risk of suicide". The respondent lost his most recent employment on account of the stress of defending the proceedings. His psychologist was of the view that he would require further therapy in order to "instil a sense of hope, self-determination… meaning and purpose". The judge also said that the respondent's mental state had been deleteriously affected by the anguish he felt for the hardship his present circumstances had inflicted upon his family, his wife in particular.
5. The judge also referred to the respondent having had a hip replacement operation in the period between trial and sentencing and had suffered some post-operative pain.
6. The judge was satisfied that the respondent's time in custody would be more burdensome due to the state of his mental and physical health. This included, in relation to his mental state, his anguish concerning his family who lived in Queensland and would find it more difficult and expensive to visit him in custody.
7. The respondent had a criminal history in the distant past spanning 1971 to 1978. His record included numerous offences of larceny, armed robbery, break, enter and steal, steal motor vehicle, false pretences and driving whilst disqualified. He received sentences of imprisonment, the longest for 12 years for armed robbery in 1978. There was also the 2007 offence of failing to pay for petrol in Queensland. The sentencing judge regarded the respondent's criminal history as a matter denying him "some leniency".

Purposes of sentencing

1. No doubt mindful of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the judge referred to the need to "address the sentencing objects of general deterrence, denunciation and punishment" and said that "recognition must also be given to the harm caused to the victim".

Delay since being charged

1. The judge referred to the four years that had elapsed since the respondent was charged. He said the respondent "should have some limited favourable account for the stress and anxiety suffered in the meantime" and "he should also have some limited account for the restriction on his liberty occasioned by his bail status over a period of years".

Delay since the offences

1. The time that had elapsed since the offending was a subject discussed at some length. The judge was aware of the need to sentence the respondent "in accordance with any identified trends and the practice at the relevant time". A number of cases and publications were tendered from which his Honour concluded that "sentences were much shorter at the relevant time than they are now for like offending". He concluded: "For all practical purposes, it seems to me that recognition of a movement in sentencing practices adverse to the offender in the time since these offences were committed must inevitably have its expression in an extension to the offender of a degree of leniency that would not otherwise have featured in the synthesis and which would be thoroughly inappropriate if addressing contemporary offending of a like character."
2. Having said that, the judge spoke of "the trend in sentencing practices" being "only one of [the] many factors which must be taken into account" and that "it would be wrong to attempt a slavish reproduction of the sentence which … one speculates might have been imposed almost 30 years ago".
3. His Honour returned to a discussion of the relevance of "delay" since the offences a little later in the judgment. After referring again to the need for punishment and denunciation, that the offences were "objectively very serious", and that there was "no question … that the harm occasioned to the victim, then and enduring, must be recognised", he said that "pulling necessarily against those considerations are the practical consequences of the delay and, more acutely, the rehabilitation that has been demonstrated by reason of it".
4. After again referring to the "demonstrable progress towards rehabilitation" and the impact upon the respondent's family "of the present exercise", noting that it was not at the level of "extraordinary" that he understood the authorities to require for such third party hardship to be taken into account, he said: "However, I think that the combination of the delay and the rehabilitation in the meantime combine to properly admit of the conclusion that the circumstances are rendered extraordinary, where they might not have been so characterised if the offending was being dealt with more contemporaneously. I am satisfied that it is appropriate to extend some favourable account by reference to those considerations." (Emphasis added)

The consequences of "delay" and determining the non-parole component of the sentence

1. His Honour referred to R v Todd [1982] 2 NSWLR 517 at 519, R v Moon (2000) 117 A Crim R 497 at [81] and PWB v R [2011] NSWCCA 84 at [80] and made comments which will be discussed later. His Honour described the approach he proposed to take as follows: "In my assessment, the appropriate way to structure a sentence in all of the present circumstances is to fix a head sentence that, so far as one sensibly can, recognises the objective gravity of the offending assessed against the sentencing practices of the relevant time and for the considerations of leniency that I have outlined to reflect primarily in the non-parole period that is set. It seems to me that in all sensible respects those considerations bear most rationally upon an assessment of the minimum time that must be served in all the circumstances, taking into account also the observation of Howie J that I referred to a moment ago. [That is, in R v Moon.] So structuring a sentence has the consequent effect of a significant departure from the statutory ratio. All of the circumstances I have outlined justify a finding of special circumstances appropriate to that adjustment."
2. A little earlier in his judgment, the judge said this about the manner in which the non-parole period of the sentence should be assessed: "However, it was at the relevant time, and is now, necessary to ensure that any non-parole period represents the minimum period of imprisonment required to be served by an offender, having regard to all of the demands of justice, assessed against the objective gravity of the offending and in light of the offender's subjective circumstances."
3. Returning to the statement above about reflecting leniency in the non-parole period, his Honour then devoted a relatively lengthy portion of his judgment (ROS [62]-[72]) to a somewhat extraordinary criticism of an aspect of the judgment of this Court in R v Tuhakaraina [2016] NSWCCA 81; 75 MVR 434 which he quite obviously regarded as erroneous. More will be said about this below.
4. Towards the end of the judgment, his Honour described the circumstances of the case as "most extraordinary" and "highly exceptional". He said the circumstances justified "the imposition of a penalty which reflects a ratio quite removed from the statutory prescription". He concluded by saying that: "[I]n all the circumstances of this case, the interests of justice, particularly insofar as they comprehend the community's best interests, are served by ensuring that the substantial positive steps Mr Hall has taken in establishing a productive, law-abiding life are successfully maintained. Any risk that those rehabilitative steps might be halted or potentially reversed by a period of time spent in custody should be minimised, so far as it can be consistently with the competing demands of the countervailing objects".
5. In the course of announcing the conviction and sentences, his Honour added: "I re-emphasise that this sentence does not represent an appropriate sentence for such offences committed today, or in the more recent past, and it reflects considerable leniency on account of the substantial rehabilitation demonstrated over the long period since the offending that would not otherwise have been appropriate."

Concurrency, accumulation and totality

1. Earlier, when announcing his intention to impose an aggregate sentence, the judge indicated there would be some implicit accumulation of the indicative sentences for each offence. Because it "was all one course of criminal conduct of relatively short duration" he considered the degree of accumulation should be "limited". He continued: "I think there needs to be some accumulation as between counts 1 and 2 on the one hand, and counts 3 and 4 on the other, but otherwise I think the relevant criminality for each of counts 1 and 2 viewed together, and each of counts 3 and 4 viewed together is relatively co-extensive, so that there should be significant if not complete concurrency between the sentences for counts 1 and 2 and also as between the sentences for counts 3 and 4."

Principles relating to Crown appeals

1. The principles governing Crown appeals were set out in the Crown's written submissions in a fashion that was not the subject of any criticism by counsel for the respondent. They are as follows: "A claim of manifest inadequacy requires the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single 'correct' sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321 at 325; Markarian v The Queen (2005) CLR 357 at [25]; Hili v The Queen (2010) 242 CLR 520 at 538 [58]; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 at [7]. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice: Everett v The Queen (1994) 181 CLR 295 at 306, per McHugh J. The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted person[s]. However, it was observed in Green v The Queen; Quinn v The Queen [(2011) 244 CLR 462; [2011] HCA 49] at [42] that cases might arise where the court concludes that the inadequacy of the sentence appealed from is so marked, that it amounts to 'an affront to the administration of justice' which risks undermining public confidence in the criminal justice system. In such a case the court is justified in interfering with the sentence."
2. The Crown submitted that the Court should intervene and set aside the sentence imposed because it is plainly unjust, being so far below the range of sentences that could justly be imposed and is thereby likely to undermine public confidence in the administration of criminal justice in the sentencing of offenders for sexual offences.
3. The Crown also asserted that it was seeking to engage the discretion of the Court to provide further governance and guidance to sentencing courts so as to ensure that due consideration continues to be given by such courts to the need for sentences for offences of historical sexual assault to adequately reflect the criminality of the offending involved, particularly in circumstances where the identity of the offender comes to light through a "cold case" DNA profile match. Another purpose of the appeal was said to be to ensure aggravating features of an offence are properly taken into account in the sentencing process.

Grounds of appeal

1. The Crown's notice of appeal indicated a sole ground ("the sentence pronounced was manifestly inadequate") but indicated that additional grounds may be filed later. On 6 November 2017 it gave notice of three grounds: 1 The sentencing judge erred in finding that the use of the knife was not an aggravating factor in respect of counts 1 and 3. 2 The aggregate total term imposed by the sentencing judge in respect of the offences, of imprisonment for 5 years, is manifestly inadequate. 3 The aggregate non-parole period imposed by the sentencing judge in respect of the offences, of imprisonment for 1 year, is manifestly inadequate.

Ground 1 - use of knife not an aggravating factor

1. As mentioned earlier (at [20]), the judge found that the s 61C(1)(b) offences were not aggravated because of the respondent's use of a knife. His Honour explained: "I do not consider the first and third counts are aggravated by the presence of the knife. I do not accept the Crown submission that because the relevant offence is capable of being committed by threats making reference to a knife, without in fact producing one, that it follows the presence of the knife is then capable of being an aggravating feature. What occurred here was threatening by means of offensive weapon, the knife. That is an aspect of the charged offence and not a feature further aggravating the offending. Strictly, the presence of the knife might be said to aggravate the offending in respect of the other two counts, but it rather highlights the significant correspondence between the two counts in terms of the criminality that they embrace."
2. The offence provision in s 61C at the relevant time was as follows: 61C Sexual assault category 2 - inflicting actual bodily harm etc with intent to have sexual intercourse (1) Any person who: … (b) threatens to inflict actual bodily harm upon another person by means of an offensive weapon or instrument, with intent to have sexual intercourse with the other person shall be liable to penal servitude for 12 years.
3. It was held in R v Tout (1987) 11 NSWLR 251 at 254F (Street CJ, Campbell J agreeing, Lee J agreeing with separate reasoning) that the presence or production of a weapon is not necessary to constitute the threat. The essence of the Chief Justice's explanation was that the grammatical syntax of the provision required a construction that associated the offensive weapon with the infliction of the harm that was threatened; it was not a requirement that the threat be made by means of an offensive weapon.
4. In the present case, the solicitor who appeared for the Crown provided the judge with written submissions which included that "the presence of the knife aggravates both s 61C(1)(b) counts". R v Tout was cited in support of the proposition. His Honour should have accepted the submission.
5. Counsel for the respondent responsibly conceded that this ground was made good. He submitted that the Court should move to re-sentence without determining the other grounds. That submission cannot be accepted; the Court cannot uphold the appeal without finding that the sentence imposed at first instance is manifestly inadequate: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at 588-9 [24]

Ground 2 - the aggregate term is manifestly inadequate

Ground 3 - the non-parole period is manifestly inadequate

1. It is convenient to deal with these grounds together because some of the issues raised in the submissions have relevance to both.
2. Aside from the error identified under Ground 1, the Crown submitted that there were two other errors which had a bearing upon an assessment of the seriousness of the offence.

Duration of the offences

1. The Crown submitted that his Honour erroneously found that the offences were of "relatively short duration". The judge had found that the offences lasted no longer than 20 or 30 minutes. Considering the acute fear that the victim was suffering as a result of the ever-present threats of the knife and the masking of her eyes, this, the Crown submitted, could not be considered to be a "short" period of time.
2. The issue of duration was of very minor significance. It could have been an aggravating factor if the offences had occurred over a more extended period of time. They certainly did not occur quickly. Having regard to the features identified by the Crown, it could be said that the offences occurred over a significant period, particularly when compared to many other sexual assault cases that come before the courts. However, this is a matter that relates to the assessment of the objective seriousness of the offence. The judge said that "this is objectively very serious criminal conduct". Neither party disputed that finding.

Substantial physical harm not caused

1. The other error asserted by the Crown was that his Honour found that substantial physical harm was not caused to the victim "tak[ing] this offending away from the most serious end of the spectrum of [conduct] that might be caught" by the offence.
2. The judge accepted that there was "some limited physical violence in the form of a degree of rough handling" but he also accepted that it was "limited and no substantial or lasting physical hurt or wounding [was] inflicted". While the victim was not wounded or otherwise physically injured, a description of the violence as "limited" and that it took the form of "a degree of rough handling" is a significant understatement. Nevertheless, the Crown does not contend that the objective seriousness of the offence was at "the most serious end of the spectrum" and has not challenged the judge's finding mentioned above ("very serious criminal conduct").

The significance of "delay" and the respondent's rehabilitation

1. The Crown acknowledged that there had been a lengthy period between the offending and the sentencing, during which time the respondent had not committed any offences (aside from the relatively minor offence in Queensland in 2007). It pointed out, however, that this was not a case in which the respondent had been in a state of uncertain suspense as a result of unresolved court proceedings or because of the failure of the victim to complain. It was submitted that the reason the offences were not detected immediately was because the respondent had decamped from the motel and he should not be rewarded for the successful concealment of his offending.
2. It was also submitted that it was not a correct approach to regard a historical sexual offence as "stale" in the sense used by Street CJ in R v Todd [1982] 2 NSWLR 517 given what is now understood to be the long-term effects of sexual offences on victims. The Victim Impact Statement in the present case outlined the long-term and ongoing impact of the offences upon her.
3. Counsel for the respondent pointed out that the judge did not take into account that the respondent was left in a state of uncertain suspense. He conceded at the hearing that it was not a relevant matter (T12.11). Rather, it was said that his Honour took into account the respondent's rehabilitation in the intervening period and the fact that in sentencing for a stale crime a considerable measure of understanding and flexibility of approach is called for: R v Todd at 519. It was submitted that there was nothing erroneous in this approach having regard to the respondent's rehabilitation.
4. In R v Todd, Street CJ described a number of ways in which a sentencing court could take into account a lengthy period of time elapsing between offending and sentencing. It must be borne in mind that he was speaking in the context of a delay caused by an offender serving a sentence in Queensland for offences committed immediately after the offences for which he ultimately came to be sentenced in this State. The sentencing in this State occurred some five years after the offences took place, when the offender was extradited upon his release in Queensland. The sentencing judge took the view that the Queensland sentence was relevant "only in so far as it may shed light upon [the offender's] present state of rehabilitation".
5. Street CJ said (at 519D) that if all of the offences had occurred in New South Wales a question of totality would have arisen in the assessment of sentence for the entirety (the crimes being of similar character and committed within a period of eight to ten days). He continued (519F-520A): "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
6. These principles were specifically endorsed in Mill v The Queen (1988) 166 CLR 59 at 65-66; [1988] HCA 70. Both cases were concerned with a question of totality in the context of sentencing an offender which has been delayed in a manner not of his or her choosing because of the need to serve sentences in another jurisdiction.
7. The only passage in R v Todd referred to by the primary judge in the present case (at ROS [60]) was the reference by Street CJ to "considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence" which sometimes "can require what might otherwise be a quite undue degree of leniency being extended to the prisoner".
8. His Honour did not take into account that the respondent had been "left in a state of uncertain suspense". It was not suggested that he should. This was realistic in circumstances where the respondent had decamped from the scene of his crimes, remained silent and presumably hoped that his responsibility for the offending would go undetected: Elchiekh v R [2016] NSWCCA 225 at [58].
9. Rehabilitation of the respondent was identified (at ROS [41]-[42]) by the judge as one of two "significant practical consequences of the delay in the detection of these crimes [sic - the crimes had been detected but the offender had not been identified]". (The other "significant practical consequence" was the need to have regard to sentencing patterns and practices at the time of the offending (ROS [43]). Later the judge said (at [59]), echoing Street CJ in R v Todd: "[A]s a result of the delay this sentencing exercise calls for a measure of understanding and flexibility of approach in order to give just recognition to factors such as demonstrable progress towards rehabilitation. The impact of the present exercise upon the offender's family might not otherwise fall squarely within the descriptor 'extraordinary', as that characterisation is often contemplated in authorities concerning third party hardship. However, I think that the combination of the delay and the rehabilitation in the meantime combine to properly admit of the conclusion that the circumstances are rendered extraordinary, where they might not have been so characterised if the offending was being dealt with more contemporaneously. I am satisfied that it is appropriate to extend some favourable account by reference to those considerations."
10. I am uncertain whether his Honour was meaning to convey in this passage that the combination of "delay" and rehabilitation rendered the case itself "extraordinary" or whether it was the combination of those features which enabled him to have regard to "the impact of the present exercise upon the offender's family". The latter remark alludes to the principle that hardship to third parties may only be taken into account where the circumstances are "exceptional": see R v Edwards (1996) 90 A Crim R 510 at 516 which was referred to in the written submissions provided to his Honour by the Crown.
11. The judge referred to R v Moon [2000] NSWCCA 534; 117 A Crim R 497 but only so as to quote an observation by Howie J (Fitzgerald JA agreeing). The judge said (ROS [60]): "Also relevant in the present context is another authoritative observation to the effect that where there has been delay in a matter's disposition and there has been demonstrated rehabilitation in the meantime then '… it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct' (R v Moon ((2000) 117 A Crim R 497 at [81] per Howie J; later endorsed in PWB v R [2011] NSWCCA 84 at [80])."
12. That does not completely portray what Howie J conveyed in his judgment in R v Moon. The ellipsis in the passage quoted took the place of Howie J's introduction of the proposition thus: "In a case such as this where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated … " (Emphasis added)
13. The "case such as this" was a reference to a case where the offender was sentenced in 1999 for four offences of indecently assaulting a child which occurred over a period of years up to 1971. Howie J noted (at [78]) that "[a]lthough less significance is normally given to the impact of extensive delay in sentencing for child sexual assault offences, each case has to be considered according to its own facts and circumstances". He immediately added, "[t]here was a very gross delay in raising complaint". In the meantime, "the applicant had married, brought up a child of his own, and worked until retirement. There was no further offending and the judge accepted that he was rehabilitated."
14. A little later, Howie J said (at [80]): "I am not unmindful of the effects of the applicant's crimes upon the victim and the anguish that he must have suffered which caused him so long after the offences to seek counselling and to report the matter to police. But the applicant is principally to be punished for what he did and having due regard to the fact that, for whatever reason, the applicant [sic - victim] chose not to complain about the matter for over 25 years."
15. The present is not a case of "very gross delay in raising complaint"; the victim brought the matter to the attention of the authorities immediately. The "delay" was caused by the respondent having decamped and thereafter remaining silent. Once he had been apprehended he pleaded not guilty and was convicted after a trial. There was no evidence of remorse.
16. Howie J's comment in R v Moon at [81] can only apply in fairly unusual circumstances. It has not been generally applied to the sentencing of offenders of otherwise good character for historical sexual offences; at least insofar as this Court is aware. The comment has been referred to in only a few subsequent cases. There are references in the judgments of Adams J in Versi v R [2013] NSWCCA 206 at [185] and of RS Hulme AJ in Henderson v R [2016] NSWCCA 8; 256 A Crim R 519 at [86] but they were each in dissent. The others were AJB v R [2007] NSWCCA 51; 169 A Crim R 32, GRD v R [2009] NSWCCA 149, PWB v R [2011] NSWCCA 84; 216 A Crim R 305 and RL v R [2015] NSWCCA 106.
17. Each of these cases had some unusual features over and above a lack of further offending in the period between the offences and the sentencing and negligible prospects of re-offending. It can also be noted that those cases concerned historical sexual assaults upon children in a domestic context in contrast to the present case which involved, bluntly, a violent rape of a woman at knife point.
18. In the present case, the primary judge was wrong to refer to Howie J's comment in R v Moon at [81] as one that was "authoritative" in application to any case in which there was "delay in a matter's disposition and there has been demonstrated rehabilitation in the meantime".
19. A more apt reference to R v Moon would have been paragraphs [70]-[71] which appear in the context of Howie J dealing with the general question of sentencing for historical offences. This passage was approved in R v MJR (2002) 54 NSWLR 368 at 384 [107]; [2002] NSWCCA 129 (Sully J, Spigelman CJ, Grove J and Newman AJ agreeing). This case involved a five-judge bench of this Court convened to consider the question of sentencing for historical offences when sentencing practices in the intervening period have moved adversely to an offender. Sully J agreed with the judgment of Spigelman CJ on the question of principle. His judgment otherwise dealt with the facts of the case at hand. He agreed with the following passage from the judgment of Howie J in R v Moon: "The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time."
20. The approach to sentencing outlined in this passage for historical offences where there is an absence of reliable statistical data in relation to sentencing patterns at the time of the offence was quoted in the written submissions by the Crown to the primary judge (AB 158). Moreover, it is an approach which has been consistently followed by this Court: for example, R v Roberts [2003] NSWCCA 309 at [20]; R v Ceissman [2004] NSWCCA 466 at [22]; R v EGC [2005] NSWCCA 392 at [41]; Lozanovski v R [2006] NSWCCA 143 at [15]; AJB v R at [11]; R v Jarrold [2010] NSWCCA 69 at [40]; Simpson v R [2012] NSWCCA 246; 227 A Crim R 299 at [73]; MPB v R [2013] NSWCCA 213; 234 A Crim R 576 at [88]; TC v R [2016] NSWCCA 3 at [80]-[81]; and Woodward v R [2017] NSWCCA 44 at [39]-[40], [88].
21. Counsel for the respondent submitted at the hearing of the appeal that another aspect flowing from the "delay" was that general deterrence was of reduced significance (T14-15). Reference was made to AJB v R at [39]: "General deterrence was not a significant matter in the applicant's case because in light of the very lengthy period that had transpired between the offences and the passing of sentence and his reform it was not appropriate to make an example of him to deter others from similar conduct."
22. Counsel also referred to Morgan v R [2017] NSWCCA 269 where Macfarlan JA referred to some of the unique circumstances of AJB v R and said (at [67]): "AJB does not stand for a general proposition that general deterrence must be given reduced significance in cases such as the present."
23. Counsel acknowledged what Macfarlan JA had said but submitted that Morgan v R did not hold that general deterrence could never be given reduced significance.
24. Howie J also found general deterrence to be of reduced significance in PH v R [2009] NSWCCA 161. It was a case involving a long delay but it had the additional feature of the offender being 73 years of age with health issues affecting his ability to cope with imprisonment as well as serious intellectual disabilities. But on the subject of general deterrence generally, his Honour said (at [32]): "In AJB I indicated that, at least in relation to that applicant, general deterrence was of less significance than it might otherwise be because of the period between the offending and the imposition of sentence and because of his reform over that period. I believe that this will generally be the case where, as in both AJB and the present case, a considerable period of time has passed between the offending and sentencing and where over that period there have been no further offences. This is not to imply that general deterrence is of no significance in such cases. Potential offenders should understand that the courts will treat these types of offences harshly notwithstanding that extensive delay occurs before the offender is punished. But, as was recognised in Holyoak [(1995) 82 A Crim R 502], the need for general deterrence must be considered in light of the effect of the sentence of imprisonment upon the offender and the implication of that sentence upon his prospects for release." (Emphasis added)
25. The primary judge in the present case took into account the need for general deterrence. He was correct, with respect, to do so: MC v R [2017] NSWCCA 316 at [55]-[57]. The degree to which he did in the assessment of the individual sentences may be inferred from their length. It is clearly the case, however, that he regarded it as of greatly reduced significance in relation to the non-parole period. I will turn to that shortly.
26. In concluding on the issue of "delay", the relevant aspect of it was twofold as the sentencing judge identified: first, establishment of a pro-social life and rehabilitation in the meantime and, second, the need to sentence in accordance with trends and practice at the relevant time.
27. The respondent's rehabilitation was the predominant feature of his subjective case. As to the second matter, his Honour said: "The material before me is inadequate for the purposes of determining at this remove a range applicable at the relevant time for offending of this character. It is clear from that material, however, that there has been a clearly discernible trend in the time since this offending. The best articulation of the situation appears to be that sentences were much shorter at the relevant time than they are now for like offending. Frankly, that is hardly surprising, particularly given the leniency apparent in the maximum penalties then prescribed by Parliament compared with the present-day analogues."
28. Two things may be observed. First, if a sentencing range at the relevant time could not be identified, his Honour should have approached the task in the manner described by Howie J in R v Moon at [70]-[71].
29. Second, it is difficult to understand his Honour's broad assessment that "sentences were much shorter at the relevant time than they are now for like offending". It is said to be based upon a comparison of maximum penalties then prescribed with "present-day analogues" but his Honour did not say what those analogues were. There may be tension between this and what was said in R v PJ Smith [1982] 2 NSWLR 569 at 573-4. Nevertheless, the parties to this appeal both proceeded upon an acceptance of his Honour's proposition without any further analysis. In these circumstances the Court may assume, without deciding, that the proposition is correct.

The non-parole period

1. The Crown accepted (as it did before the primary judge) that a finding of special circumstances (s 44(2) or s 44(2B) of the Crimes (Sentencing Procedure) Act) was open to be made. The Crown also acknowledged that the extent of any reduction of the non-parole period following such a finding is a discretionary decision. Nevertheless, it was submitted that neither the delay, or the respondent's rehabilitation, nor their combined effect, could justify a non-parole period of 1 year in respect of objectively serious offences.
2. The Crown submitted that the approach taken by the judge to the assessment of the non-parole period was erroneous in that he took into account the objective gravity of the offending in assessing the overall term of sentences but gave reflection to the respondent's subjective case and considerations of leniency in assessing the non-parole period: ROS [61]. It was submitted that there was a failure to take into account, sufficiently or at all, the objective seriousness of the offences, the need for denunciation and the need for general deterrence.
3. Counsel for the respondent referred to what the judge had said at [49] of the judgment (see above at [36]) and submitted that it was a correct summary of the principles concerning the assessment of the non-parole period of a sentence. In essence, counsel supported the primary judge's criticism of what was said in R v Tuhakaraina. He referred to Muldrock v The Queen (2011) 244 CLR 120 at 129 [20]; [2011] HCA 39 where the following was said about the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act: "The purposes there stated are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law. There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen [No 2] in applying them." (Citations omitted)
4. Finally, it was submitted that the weight to be given to "the objective seriousness of the offences, the need for denunciation and the need for general deterrence" (CWS [60]) were matters within the discretion of the sentencing judge.
5. The principles that were required to be applied in the assessment of the non-parole period are well-known. However, having regard to the views expressed by the sentencing judge in the present case it is necessary to refer to some of them. They can be conveniently drawn from the judgment of Spigelman CJ in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534: ● The judgment of four justices of High Court in Power v The Queen (1973) 131 CLR 623 included that "the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention". (R v Simpson at [55]) ● The non-parole period must itself appropriately reflect the criminality involved in the offence. (R v Simpson at [63]) ● Considerations of general deterrence are at least equally significant to the setting of the head sentence and the non-parole period. The High Court's decision in Power v The Queen rejected a proposition that considerations of punishment and deterrence were of lesser relevance to the specification of the non-parole period. (R v Simpson at [64]) ● The need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence - operates to confine the proper range for the exercise of the discretion. (R v Simpson at [65]) ● A circumstance taken into account by way of reduction of the head sentence will have the effect of also reducing the non-parole period. "Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence." (R v Simpson at [67]) To the same effect, Spigelman CJ said in R v Fidow [2004] NSWCCA 172 at [18]: "Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur." ● Section 44 of the Crimes (Sentencing Procedure) Act operates as a fetter or constraint on the exercise of the sentencing discretion. (R v Simpson at [69])
6. The approach of the sentencing judge in setting the non-parole period in the present case did not accord with these principles. He alluded to what was said by the High Court in Power v The Queen at one point (ROS [49] - see above at [36]). But later in the judgment (ROS [61]), contrary to the above principles, he spoke of fixing a head sentence that reflected the objective gravity of the offending and a non-parole period which would reflect the considerations of leniency he had earlier referred to. It was in this regard that he referred to the comment by Howie J in R v Moon at [81] ("it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance").
7. I return to the criticism by the judge of the observations made in R v Tuhakaraina. In that case it was accepted that it was open to the primary judge to make a finding of special circumstances and thereby reduce the proportion of the sentence represented by the non-parole period. However, against a total term of imprisonment for 2 years 6 months there was a non-parole period of 6 months. Wilson J (with whom I agreed, Garling J dissenting) said (at [91]): "Although it is neither necessary nor prudent to state any general rule or formula for the determination of a proper ratio of sentence once a finding of special circumstances has been made, that being a discretionary matter in any event, it should be very rare indeed for a non-parole period to comprise only twenty per cent of an overall sentence. It could only be in the most extraordinary circumstances that such a ratio of sentence could be justified. That is because, absent some highly exceptional feature, it is difficult to see how a non-parole period of twenty per cent of the head sentence could perform the manifold functions of sentence specified by s 3A of the Crimes (Sentencing Procedure) Act, including as they do punishment, denunciation, making an offender accountable, recognition of harm, and general deterrence."
8. The reference to s 3A of the Crimes (Sentencing Procedure) Act is a reference to the purposes of sentencing: ensuring there is adequate punishment; prevention of crime by general and personal deterrence; protection of the community; promotion of the offender's rehabilitation; making the offender accountable; denouncing the offender's conduct; and recognising the harm done to the victim and the community.
9. I remain of the view that it would be an unusual case where it would be an appropriate exercise of the sentencing discretion that a non-parole period could be set at such a low proportion of the total term and still reflect the principles set out above. However, neither this statement nor the observation made by Wilson J in R v Tuhakaraina (as her Honour said) lays down "any general rule or formula for the determination of a proper ratio of sentence once a finding of special circumstances has been made".

Generally as to manifest inadequacy

1. In summary, the Crown submitted that there were a number of features of the offences which rendered them of such seriousness that the need for punishment, deterrence (particularly general deterrence), denunciation and the recognition of the harm caused to the victim (s 3A of the Crimes (Sentencing Procedure) Act) loomed large.
2. The Crown referred to the judge having acknowledged that the degree of leniency extended to the respondent would be "thoroughly inappropriate if addressing contemporary offending of a like character" (see above at [31]). However, the Crown referred to CT v R [2017] NSWCCA 15 where Hoeben CJ at CL (Johnson and Latham JJ agreeing) said (at [52]) that "even when dealing with old offences, a court must impose sentences that adequately reflect the criminality of an offence regardless of when the offences were committed".
3. Counsel for the respondent submitted that the Crown had not demonstrated by reference to a range, or by reference to other cases or statistics, that the sentence was outside the range of sentences ordinarily imposed in cases of its kind. Counsel cited R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 at [92] (Simpson J, as her Honour then was) in support of this submission. However, what was said there was merely an observation that the Crown had not, for the purposes of that case, demonstrated manifest inadequacy by such means.
4. Counsel also cited R v Thompson (1987) 37 A Crim R 97 where a similar sentence was imposed (5 years with a non-parole period of 18 months) for four sexual offences. One of the difficulties in drawing anything useful from that case is that it was decided before the enactment of the Sentencing Act 1989 (NSW) which introduced the concept of non-parole periods being at least three-quarters of the total term unless special circumstances were found. Further, it involved re-sentencing after a successful Crown appeal in an era when the consideration of double jeopardy required restraint in the imposition of an otherwise appropriate sentence.

Conclusion

1. In the present case, the descriptor "delay" is inapt. It suggests that something that might have occurred earlier was deferred, postponed or put off until later. As noted earlier, the passage of time between the offending and the respondent's arrest was solely attributable to the respondent evading detection as the person responsible for the attack upon the victim.
2. The term "stale crime", drawing from R v Todd, was also referred to in the respondent's submissions. It is important that concepts of "delay" and "stale crime" not be regarded as automatically leading to certain consequences in sentencing. There is a need to consider the underlying circumstances and how they impact upon the assessment of sentence. As Gleeson CJ observed in R v Engert (1995) 84 A Crim R 67 at 68: "It is … erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise."
3. The fact that the respondent pursued a lifestyle that was productive and useful to society in the 27 years prior to sentencing was a matter properly brought to account in his favour. His rehabilitation and the good character he was able to establish in that period was a matter that was necessary to consider. So too was it necessary for his Honour to take into account, as he did, the mental and physical health issues of the respondent and the fact that he would be incarcerated some distance from his family and support network who lived in another State which, because of financial difficulties, would limit their ability to visit him.
4. Despite those matters, the offences were of considerable objective seriousness. The primary judge was correct to describe them as "objectively quite terrible criminal conduct, which demands a response appropriately reflective of the community's abhorrence for and condemnation of such conduct". His characterisation of the offences as "objectively very serious criminal conduct" was not challenged in this Court.
5. The Crown accepted that it was appropriate for the judge to take into account that sentences imposed at around the time of the offending were less than they are now. But as well as being mindful of this, in accordance with the principles set out earlier it remains necessary to assess the appropriate sentence in the light of the statutory guidepost of the maximum penalty provided by Parliament. As Howie J pointed out in R v Moon, there is also the need to impose sentences that reflect the objective seriousness of the offence and are proportional to the criminality involved. A non-parole period must reflect these principles as well.
6. It must be acknowledged that sentencing judges have a wide discretion and, as the primary judge pointed out, there are very often competing and contradictory considerations: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at 612 [77]; [2001] HCA 64. However, in my view there is a significant disconnect between the judge's assessment of the criminality involved and the sentence he imposed. That applies to the head sentence and particularly to the non-parole period. The non-parole period is well and truly at odds with the principles discussed by Spigelman CJ in R v Simpson set out above.
7. My conclusion is that the exercise of the sentencing discretion miscarried. The aggregate sentence and the non-parole period are manifestly inadequate.

Residual discretion

1. Notwithstanding a finding that a sentence is manifestly inadequate, there remains a discretion as to whether or not the Court should intervene and re-sentence. In this regard the Crown bears the onus: CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346 at 358-9 [33]; [2015] HCA 9.
2. In favour of intervention, the Crown submitted that there had been no delay in bringing the appeal; the imposition of an erroneously inadequate sentence was not caused or contributed to by the representative of the Crown; and the expiry of the respondent's non-parole period is not imminent. Counsel for the respondent conceded these points.
3. The Crown also submitted that there is such a disparity between the sentence actually imposed and that which should have been imposed that it is appropriate to re-sentence.
4. Counsel for the respondent submitted that there was evidence that actual stress and anxiety was experienced by the respondent and members of his family as a result of the appeal being instituted by the Crown. He contested the proposition that there was a need to lay down any principles for sentencing courts. Finally, it was submitted that any sentence that would be imposed by this Court would not be significantly greater than that which was imposed at first instance; in other words, any interference would amount to "tinkering".
5. In oral submissions, counsel for the respondent referred to a submission made in writing by the Crown in the court below (AB 160) that "as a result of the delay, the sentencing exercise calls for a measure of understanding and flexibility of approach so that factors such as demonstrable progress towards rehabilitation might be taken into account". R v Todd was cited. It was submitted that this was relevant to the residual discretion as the Crown was now seeking to now argue a different case. I cannot accept this. The Crown has accepted that the respondent's "demonstrable progress towards rehabilitation" is a relevant matter (e.g. T22.8-22.14).
6. It was also submitted that if the sentence is found to be manifestly inadequate, the Crown contributed to that state of affairs. In response to a submission that a sentence of less than two years should be assessed, thereby enabling an alternative to full-time custody to be imposed, the representative of the Crown confined himself to saying that the judge "would fall into error if the sentence of anything other than full time custody is to be imposed". I do not believe this has a bearing upon the residual discretion. The Crown was simply responding to the contention that something other than full-time imprisonment should be considered. The respondent's submission may have had some force if the sentence imposed was one of two years or less but that is not the case.
7. Counsel for the respondent sought to read two affidavits, partly in relation to the residual discretion and, if necessary, in relation to resentencing. The Crown objected to certain aspects: opinions of family members of stress and anxiety being experienced by the respondent and expressions of their own stress and anxiety.
8. Counsel for the respondent was unable to identify any authority governing hardship to third parties arising from a Crown appeal being relevant to the residual discretion. It seems to me that it should be considered in the same way as hardship to third parties is considered in relation to sentencing generally in accordance with R v Edwards. Just as sentencing an offender to imprisonment often may cause hardship to spouses and other family members, so too may a Crown appeal cause anguish. The circumstances would need to be exceptional before such hardship could become relevant to the residual discretion. In addition, it could be relevant if it could be established that the anguish of loved ones had some real impact upon the respondent.
9. The affidavit by the respondent's solicitor sets out certain things the respondent told him during a recent telephone conference. No objection was taken to this. The respondent said that the filing of the Crown appeal resulted in him being re-classified and transferred to another gaol which makes it more difficult for his family to visit. The respondent said that receipt of the Crown's notice of appeal was "crushing"; he went from having a certain release date to "absolute uncertainty" and "no light at the end of the tunnel". In light of the material that was before the sentencing judge, it may also be assumed that he is distressed not only for himself but for the impact upon his wife and family.
10. This affidavit annexed statutory declarations by the respondent's step-daughter and sister-in-law. The former provides some information that pertains to the family impact of the proceedings pre-sentencing. Such material was already before the primary judge. Otherwise it sets out certain effects the filing of the Crown appeal has had upon her and her mother which, whilst not insignificant, could not be said to be exceptional and should not be taken into account.
11. The statutory declaration by the respondent's sister-in-law contains opinions as to what she thinks the respondent is experiencing and the effects upon her sister. The former cannot be considered and the latter does not add to what the respondent's wife has said.
12. The affidavit by the respondent's wife should be taken into account in relation to re-sentencing. A large part of it deals with hardship to her and the family which is relevant to the respondent's subjective case in a general sense but otherwise does not rise to the level of "exceptional". It is also relevant in confirming the difficulties the respondent has and will experience in the custodial environment. He still experiences the after-effects of the hip operation he underwent. In relation to the residual discretion, the affidavit is of limited relevance; it confirms what the respondent told his solicitor about the filing of the Crown appeal having resulted in a re-classification and transfer with the result that his family's ability to visit was affected. It adds that it also affected the respondent's telephone contact with his family.
13. It should be accepted that the respondent has experienced a certain level of distress consequent upon the filing of the Crown appeal. Nevertheless, I am of the view that the sentence is so manifestly inadequate, and particularly in relation to the non-parole period, that in order to maintain public confidence in the administration of justice it cannot be allowed to stand.

Resentence

1. In the assessment of the sentence this Court should impose I start with the assessment of the objective seriousness of the offences. In that respect I agree with the assessment of the primary judge that they represented very serious criminal conduct. The ordeal for the victim must have been utterly terrifying. The offending included her being forced to her knees at knifepoint and being dragged around the motel room by the ear, all the while blindfolded with sticking plaster over her eyes. She was threatened with being killed. It was in these circumstances that she was subjected to two forcible acts of penetration. It is unsurprising that she suffered significant and enduring psychological harm. The offences were not of "short duration" and the fact that the victim did not sustain any significant physical harm does not lessen the seriousness of the offences.
2. The time that has elapsed since the offending is significant in only a limited respect. Rehabilitation of an offender is always a relevant consideration no matter how much time has elapsed between offending and sentencing. In this case the period is so long that it has enabled the offender to bring forward a subjective case that had a number of features that were to his benefit on sentence. Despite his earlier interaction with the criminal justice system, since the time of the index offences he established, as the primary judge found (ROS [51]), "a more law abiding, productive and pro-social existence".
3. The time that elapsed from the time the respondent was charged until he was sentenced was a matter taken into account by the primary judge; a delay of about four years. That period was protracted primarily because the respondent chose to defend the matter, as was his right. However, having been found guilty by a jury, it is somewhat ironic that the respondent asks for his failed attempt to avoid conviction to be regarded as a mitigating factor because of the substantial financial burden of defending himself and the stress and anxiety that it caused.
4. It is appropriate, however, to take into account the stress and anxiety that the respondent has experienced, and will continue to experience, as a result of the enforced separation from his long-term partner who resides in another State, is clearly distressed and in meagre financial circumstances. The fact that she is impeded from visiting the respondent compounds his stress and anxiety and makes his custodial experience more burdensome than it would be if circumstances were otherwise.
5. General deterrence has a role to play in the assessment of sentence. It is important that it be known that the criminal justice system will still punish, denounce and make an offender accountable for serious criminal offending, no matter how long it takes for the offender to be brought to account (where the time that is required to do so is not the fault of anyone else). That said, personal deterrence is not of any real significance given the rehabilitation of the offender that has already occurred. While there is no evidence of remorse, he is unlikely to re-offend.
6. The maximum penalty of the offences against s 61C(1)(b) was imprisonment for 12 years while for the offences against s 61D(1) it was imprisonment for 8 years.
7. I propose that the sentences for the s 61C(1)(b) offences each be imprisonment for 4 years 6 months and for the s 61D(1) offences each be imprisonment for 3 years 6 months. An aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act should be imposed.
8. In the application of the totality principle, there should be recognition of the additional criminality as between the offences under the two provisions (in part because of what was said in R v PJ Smith). There is also additional criminality in the fact that there were the two acts of threatening the infliction of harm by means of a knife and two acts of intercourse without consent. Accordingly there should be a level of partial notional accumulation as between each of the sentences.

Orders

1. I propose the following orders:
2. Crown appeal against sentence allowed.
3. The sentence imposed upon the respondent in the District Court on 1 September 2017 is quashed.
4. The respondent is sentenced to an aggregate term of imprisonment for 7 years with a non-parole period of 4 years. The sentence is to date from 1 September 2017. The non-parole period will expire on 31 August 2021 at which time the respondent will become eligible for release on parole.
5. WILSON J: I agree with R A Hulme J, for the reasons his Honour has given.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2019