35 I earlier recounted the circumstances of the offences at some length and in some detail because, it seems to me, it is only by doing so that the full horror of each of the attacks and the brutality and callousness with which they were committed can properly be appreciated. It is also of some significance to identify the common features of the attacks to show the repetitive nature of the offender's behaviour and the pattern of conduct that emerges. This has some relevance for sentencing purposes.
36 Objectively, the gravity of each attack is manifest. Each victim was subjected to a sustained and terrifying ordeal, to the humiliation and degradation of completed or threatened or attempted sexual assault of the most intimate kind; was threatened at the point of a knife or equivalent weapon; and was, finally, robbed. Some were explicitly threatened with murder. The commission of offences of this kind can and often does destroy the even tenor of victims' lives for many years, sometimes permanently. Many victims of offences such as these never recover from their psychological effects. Moreover, attacks of this kind (as with many other offences) have ramifications going beyond those which affect the individual direct victims. They affect the freedom of all women to use public streets, particularly after dark, and create justifiable fear in those who have no alternative but to use public transport, and public streets, at night. These considerations may properly be reflected in the sentences to be imposed, as relevant to the issue of general deterrence.
37 Against these factors must be balanced what is known of the offender's personal circumstances. He was born on 14 August 1974, and was, therefore, twenty-four years of age at the time of the first offences, a little short of twenty-six at the time of the last. He was born and raised in Moree, a member of a large Aboriginal family. His parents separated when he was eleven or twelve years of age. At times he lived with his grandmother. He went to school in Moree, but was not very successful in his studies, and left school at about the age of fourteen. At that time he could write his name but little else. He came to Sydney in about 1995 and had considerable success as a sportsman, playing professional rugby league. He was able to obtain work during the Olympic Games.
38 He has a lengthy criminal record, beginning in 1988 when he was fourteen years old, and covering a range of offences. Of significance for present purposes are no less than nine convictions for assault (although the penalties imposed in relation to some of these convictions would suggest that the offences were not the most serious of their kind). Also of significance are two convictions for breaches of domestic violence orders. It is worth noting, however, that the offender has never been convicted of any offence remotely approaching the gravity of those for which he stands to be sentenced, nor of any offence that has an obvious element of sexual violence.
39 From soon after leaving school the offender has lived in a de facto relationship with Alison Duke, with whom he has three children, aged eight, five and two years. Ms Duke gave evidence on his behalf. She and the children visit the offender in prison, and she intends to continue to do so. Likewise, the offender's uncle, Noel Whitton, gave evidence on his behalf. His evidence was that, following previous periods of incarceration, the offender had accepted his advice, and had in fact lived with Mr Whitton and his family for a time. Mr Whitton is prepared to offer the offender some assistance and supervision on his release, and to maintain contact with him during the inevitable period of imprisonment.
40 This evidence was led, presumably, to establish that the offender has some prospects of rehabilitation, and is to be taken into account on that basis. However, it can, in the circumstances, be given only limited weight. It is obvious that the offender is facing a lengthy term of imprisonment.
41 He declined to cooperate in the preparation of a psychiatric report and refused to speak to the psychiatrist who was retained by his former solicitors to examine him in the gaol. There is therefore relatively little material of a subjective character to consider in mitigation of these very serious offences.
42 In the ordinary course, an offender who pleaded guilty to an indictment would be entitled to expect a significant reduction in sentence in recognition of his decision to enter such a plea (see Sentencing Procedure Act, s22). There are a number of rationales advanced for this. They include that the plea of guilty signifies an acceptance of responsibility and a willingness to facilitate the course of justice (Cameron v R [2002] HCA 6; unreported, 14 February 2002); that the victims have been spared the ordeal of recounting, in a public forum, their experiences of sexual assault; and that the plea of guilty may be some evidence of contrition. Neither the first nor the third of these considerations here exists.
43 The offender entered his pleas of guilty at a very late stage, and only after challenging the admissibility of almost the whole of the Crown case, in a voir dire that was conducted over a two week period. A number of the victims were required to give evidence, generally relating to their identification of the offender or of clothing or other items associated with the attacks. True, they were not required to give detailed evidence of the assaults upon them, but they were subjected to cross examination and they lived with the expectation that they would be required to give, in open court, and in the presence of the offender, intimate details of their ordeals - ordeals they have, no doubt, been endeavouring to put to the back of their minds.
44 Finally, the offender's willingness to facilitate the course of justice, as evidenced by the pleas, was short lived indeed. The pleas were entered on 24 May 2001. Sentencing submissions were scheduled for hearing on 23 July 2001. On that day the offender appeared unrepresented, having terminated the instructions of his legal representatives. At that time he claimed to have been pressured into pleading guilty to crimes he had not committed, and sought adjournment of the proceedings to enable him to obtain alternative representation. He was granted that adjournment. The following week, he having obtained alternative representation, I was informed that the offender proposed to apply to withdraw the pleas of guilty. A Notice of Motion to that effect was filed on 15 October 2001. In support of the application, the offender gave oral evidence, during the course of which he repeatedly denied his involvement in the offences. By judgment dated 6 February 2002 I refused the application. The offender has, nevertheless, maintained his position to the present day. Further, in order to found a challenge to the strength of the Crown case, and relevant to the weight to be given to the pleas of guilty on sentence, the offender required the attendance of three witnesses involved in the obtaining and analysis of DNA evidence. In my opinion, that evidence only reinforced the view I had already expressed, when refusing leave to withdraw the pleas, that the Crown case against him was very strong. The offender, therefore, obtains no benefit on sentence by reason of having pleaded guilty to a Crown case which had only slim prospects of succeeding.
45 The offender was well within his rights in taking each of these steps, and his punishment is not to be increased because of his having done so. The history I have outlined is relevant only as throwing light on the extent to which the offender has demonstrated a willingness to facilitate the course of justice, an acceptance of responsibility, and the presence or absence of remorse or contrition. I conclude that the offender has failed to show that his pleas of guilty entitle him to any reduction in sentence on any of these bases.
46 It is appropriate here to mention another matter that goes to the absence of contrition.
47 At the conclusion of the offender's case on sentence, and after Mr Whitton and Ms Duke had given evidence, the Crown called, in reply, evidence from the fifth victim. She had been present in Court on 24 May 2001, when the offender entered the pleas of guilty and acknowledged his guilt of the offences on the Form 1. She said that, at the conclusion of the proceedings and as the offender was leaving the court, he turned towards where she and some other victims were seated, and winked and smiled in their direction. Evidence of this kind, even if accepted, cannot and does not go to the aggravation of the offences. Even if it could, I could not be satisfied beyond reasonable doubt that the offender engaged in such conduct deliberately or maliciously. I have already held that, by reason of other evidence, the offender has demonstrated no contrition or remorse. This evidence does not in any way advance that proposition. Accordingly, the evidence of the offender's conduct subsequent to his pleas of guilty goes nowhere, and, for sentencing purposes, I disregard it.
48 Evidence was also adduced to the effect that, after the offender had come under suspicion and surveillance, Ms Duke reported that her car (to which the offender had had access) had been stolen. The effect of the evidence was to provide a foundation for an inference that Ms Duke, aware that the offender had been sighted in the vehicle acting suspiciously, had falsely reported the theft of the vehicle in order to deflect suspicion from the offender. It may or may not be that Ms Duke did do so: as to that I make no finding and no comment. All that need here be said is that the evidence is insufficient to link the offender with any such artifice. That evidence is immaterial to the sentencing process.
49 The Crown also referred to evidence of other similar conduct on the part of the offender prior to his arrest. It is sufficient to say that, for sentencing purposes, I disregard that conduct also. He is to be sentenced for the specific offences on the indictment, taking into account the offences on the Form 1, and not for other conduct that may indicate an intention or wish, or even an attempt, to engage on in conduct of the same sort on other occasions.
50 Counsel for the offender argued that, notwithstanding some acknowledged difficulties, the offender is entitled to credit for the utilitarian value of the pleas of guilty. For the reasons I have given, I reject that argument.
51 The offender was arrested on 31 July 2000 and interviewed by police. The interview was electronically recorded. The offender denied any involvement in the offences. He has remained in custody since the date of his arrest.
52 In written submissions provided on behalf of the offender, a number of points were made, relating, in some instances, to matters I have not already touched upon. Reference was made to statistics maintained by the Judicial Commission, which, it was put, establish that:
(i) In respect of s61J offences, 96% of offenders are imprisoned; the median head sentence is about 6 years; the median minimum term (non-parole period) is about four years;
(ii) In respect of s97(1) offences, and following the decision of the Court of Criminal Appeal in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, 87% of offenders are imprisoned; the median head sentence is three and a half years; the median minimum term is about two and a half years;
(iii) In respect of s90A offences 68% of offenders are imprisoned; the median head sentence is about four years; the median minimum term is about two and a half years.
53 I am prepared to accept that the statistics do establish a pattern of sentencing in accordance with the propositions stated. However, the limited value of these statistics has frequently been the subject of comment by the Court of Criminal Appeal: see, perhaps most recently, the decision of that Court in R v AEM Senior; R v KEM; R v MM ; [2002] NSW CCA 58; unreported, 13 March 2002, at [113]-[118]. It is unnecessary here to repeat what was there said. One matter worth observing is that the proposition drawn from the raw statistics tends to compartmentalise offences of each type. Here, offences against s61J, s97(1) and s90A were committed concurrently against each of the two victims named in the indictment, and most, if not all, of the victims the subject of the offences on the Form 1. That in itself means that each offence is aggravated by reason of the concurrent commission of the two other offences. That may also be so in relation to some of the individual cases which constitute these statistics, but, even if it is so, it is not apparent.
54 Moreover, sentencing practice in relation to serious sexual assault has been comprehensively reviewed by the Court of Criminal Appeal in the recent decision of R v AEM and others to which I have already referred. Inter alia, the Court held that issues of general deterrence and public denunciation are of primary importance in sentencing for offences against s61J. The Court considered that, often, greater guidance can be obtained from a review of comparable cases, citing as authority the judgment of Spigelman CJ in R v Bloomfield, unreported, NSWCCA, 15 July 1998.
55 In due course I propose to have particular regard to the facts and circumstances of the offences and offenders detailed in R v AEM; and in the remarks on sentence and sentences imposed by Hulme J in R v Graham James Kay, unreported, 26 July 2000.
56 Before moving on to those specific matters, however, it is necessary to mention some other matters.
57 There is some difference of opinion amongst sentencing judges of this Court, and those who constitute the Court of Criminal Appeal, concerning the proper approach to sentencing an offender for an offence in relation to which one or more matters are to be taken into account pursuant to Part 3, Division 3 of the Sentencing Procedure Act. The competing positions may be briefly outlined. Some judges, of whom I am one, have taken the view that the procedure provided for by that Division is one which provides an entitlement to an offender to expect a significant reduction in the sentence that would have been imposed had separate charges been prosecuted: see R v Lemene [2001] NSWCCA 5, 118 A Crim R 131; R v Harris [2001] NSW CCA 332, unreported, 5 September 2001. Others take a contrary view: see, for example, the discussion in the judgment of Hulme J in R v Perese [2001] NSWCCA 478; unreported, 13 December 2001 at [30] and following.
58 I adhere to the views I have previously expressed. However, as I there acknowledged, the fact that an offender is able to have offences dealt with by way of the Division 3 procedure instead of by separate prosecution, does not entail the result that he or she incurs no additional penalty. To suggest such a thing in the present circumstances would be ludicrous.
59 It is necessary to set out the terms of the relevant sub-sections of ss32 and 33 of the Sentencing Procedure Act.
60 S32(1) provides:
"(1) In any proceedings for an offence (the "principal offence"), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence."
61 ss33(1), (2) and (3) provide:
"(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.
(2) The court may take a further offence into account in dealing with the offender for the principal offence:
(a) if the offender:
(i) admits guilt to the further offence, and
(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and
(b) if, in all of the circumstances, the court considers it appropriate to do so.
(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account."
62 It seems to me that the effect of ss 32 and 33 is that one of the counts on the indictment must be identified as "the principal offence"; and that, in sentencing for that offence, all of the offences listed on the Form 1must be taken into account.
63 When one considers that here there are 13 serious offences on the Form 1, it is obvious that the penalty imposed in relation to "the principal offence" must be very significantly greater than would have been the case had sentence been imposed only for that offence.
64 In Pearce v R (1998) 194 CLR 610, the majority in the High Court held that a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality.
65 Where, in sentencing in respect of "one offence", that is, the principal offence, and a judge is to take into account one or more other offences, the number and seriousness of the additional offences must have a bearing upon what is the "appropriate sentence" for "the principal offence".
66 In R v Morgan (1993) 70 A Crim R 368, Lee CJ at CL, with whom Allen J and Loveday AJ agreed, said that, while s33(3) restricts the sentence that a judge sentencing in these circumstances may impose to the maximum sentence applicable to the principal offence:
"it is wrong in principle that there should only ever be little added by way of addition to the penalty imposed"