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Parties: Ajitpal Singh (Appellant) The Queen (Respondent)

Representation: Counsel Mr K Archer (Appellant) Mr J White SC (Respondent)

Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 50 of 2014

Decision under appeal: Court: Supreme Court of the ACT Before: Rares J Date of Decision: 22 September 2014 Case Title: R v Randhir Singh; R v Ajitpal Singh Citation: [2014] ACTSC 250

THE COURT

Introduction

1. On 8 September 2014, a jury found the appellant, Ajitpal Singh, guilty of five offences.

2. The jury found each of the appellant and his co-offender, Randhir Singh, jointly guilty of abducting the complainant with the intent that she should have sexual intercourse with one or other of them in contravention of s 63 of the Crimes Act 1900 (ACT) (the Act) (Count 1).

3. The jury found the appellant guilty of unlawfully confining the complainant in contravention of s 34 of the Act (Count 7).

4. The jury found the appellant guilty of three counts of engaging in sexual intercourse with the complainant without her consent in contravention of s 54(1) of the Act (Counts 9, 10 and 11).

5. The jury found the co-offender, Randhir Singh, guilty of five offences, namely, the joint offence of abduction (Count 1), a separate count of confinement (Count 5), an act of indecency without consent in contravention of s 60(1) of the Act (Count 4), and two counts of sexual intercourse with the complainant without her consent (Counts 3 and 6).

6. All the offences occurred on 26 September 2013.

7. On 22 September 2014, the primary judge sentenced the appellant and the co-offender, as follows:

Sentences imposed on the appellant Count Offence Crimes Act Maximum Sentence Penalty (accumulation) 1 Abduction (joint s 63 10 years 7 years commission) 9 Sexual intercourse s 54 12 years 8 years (+1 year) without consent 10 Sexual intercourse s 54 12 years 8 years (+1 year) without consent 11 Sexual intercourse s 54 12 years 10 years (+2 years) without consent 7 Unlawful confinement s 34 10 years 8.5 years (+1 year) Head sentence: 12 years (11 October 2013 – 10 October 2025) Non-parole period: 8 years (11 October 2013 – 10 October 2021)

Sentences imposed on the co-offender Count Offence Crimes Act Maximum Sentence Penalty (accumulation) 1 Abduction (joint s 63 10 years 6 years commission) 3 Sexual intercourse s 54 12 years 5 years (+9 months) without consent 4 Act of indecency s 60 7 years 2.5 years (+3 months) without consent 5 Unlawful confinement s 34 10 years 6 years (+6 months) 6 Sexual intercourse s 54 12 years 7 years (+6 months) without consent Head sentence: 8 years (11 October 2013 – 10 October 2021) Non-parole period: 5.5 years (11 October 2013 – 10 April 2019)

The Appeal

8. The appellant now appeals against the sentences imposed on him on the grounds that:

(a) the individual sentences are manifestly excessive;

(b) the overall sentence does not properly reflect the principle of totality;

(c) the sentences do not properly reflect the principles applicable to the setting of a non-parole period; and

(d) the sentences do not reflect the proper application of the parity principle.

The Facts

9. The facts outlined below are largely based on the facts set out in the judgment of the primary judge. Save in a number of respects referred to later in these reasons for judgment, that version of the facts was not contested on the appeal.

10. On 25 September 2013, the complainant accepted a friend request from Randhir Singh on the phone application Tango. They exchanged text messages which became more and more sexually explicit. They agreed to meet the next day at Kippax at a bus stop near the shopping centre at noon.

11. Phone records showed that Randhir Singh was discussing with the appellant, and a man known as Gora, the exchanges between himself and the complainant.

12. Towards the end of the exchanges, on the night of 25 September 2013, Randhir Singh asked the complainant whether she liked threesome sex. She replied that she had not tried it. She did not agree to engage in sex with anyone other than Randhir Singh.

13. On 26 September 2013, Randhir Singh, the appellant and Gora drove to the meeting place. The complainant went into the shopping centre. Randhir Singh followed her. The complainant told Randhir Singh that she had changed her mind and did not want to have sex with him. Randhir Singh returned to the car.

14. Randhir Singh and the appellant then agreed that Randhir Singh would go back and try and persuade the complainant to accompany him. If she refused, the appellant would come into the shopping centre and tell the complainant that they would show her husband the text messages which she had exchanged with Randhir Singh. The appellant would also tell her that they knew where her son went to school.

15. Randhir Singh then returned to the complainant at the shopping centre. He was unable to persuade her, so he phoned the appellant. The appellant then came to the shopping centre as planned. The appellant told the complainant that if she did not do as they demanded they would reveal to her husband the highly compromising and indiscreet messages and the photos she had exchanged on Tango. They told her they might also involve her son, perhaps by showing him what his mother had written in the texts. The appellant then left.

16. The complainant said to Randhir Singh that as long as they would not show the texts to her husband she would go with him, but only in a car alone with him. The complainant said to Randhir Singh that they were forcing her to do this.

17. Count 1, the joint abduction offence, found against both the appellant and Randhir Singh, related to these events.

18. Randhir Singh then phoned the appellant and told him to get a car so he could drive the complainant to the apartment. The appellant and Randhir Singh both intended that the appellant and Gora would also be at the apartment. Randhir Singh and the appellant communicated over the next 45 minutes monitoring progress of the arrangement for the complainant to accompany Randhir Singh to the apartment.

19. On the way to the apartment Randhir Singh forced the complainant to perform an act of fellatio on him whilst he was driving from the shopping centre. Randhir Singh applied some force to the back of the complainant’s head in the course of this act. Count 3, the offence of engaging in sexual intercourse without consent alleged against Randhir Singh, related to this event.

20. When the complainant and Randhir Singh arrived at the secure underground car park of the apartment building Randhir Singh told the complainant that he wanted to have sex in the car. He pulled down her pants and reclined her car seat. The complainant felt his erect penis on her knees. The complainant’s clothing prevented Randhir Singh from penetrating the complainant. The activity lasted for between one and a few minutes. Count 4, the indecency offence found against Randhir Singh, related to this event.

21. Gora was in the car park and accompanied Randhir Singh and the complainant in the lift to the apartment. He entered the apartment with them. The appellant was in the car park sitting in his car, but the complainant did not know that.

22. The complainant repeatedly asked Randhir Singh to let her go. She said to him that she had agreed to go only with him and no others. The presence of Gora and another man, Sam Wise Jones, who had been asleep in the apartment when they arrived, made her more intimidated and apprehensive.

23. Randhir Singh took her into the bedroom. She did not know, but Randhir Singh did know, that the appellant was in the apartment or would soon arrive. The purpose for which Randhir Singh took the complainant to the apartment and kept her there was to have sexual intercourse with her. He knew that with three men present, namely, himself, Gora and Sam Wise Jones, the complainant could not expect to be able to get away unless he let her, and that was not his intention, at least not until he had achieved his purpose. Count 5, the confinement offence found against Randhir Singh, related to these events.

24. In the bedroom Randhir Singh guided the complainant to the bed, pulled her pants down, undressed and got on top of her. She told him whilst he was penetrating her that she did not like it. The act of sexual intercourse lasted less than 10 minutes, probably until Randhir Singh ejaculated. The activity was interrupted when Gora took two photos on the appellant’s phone of the complainant in a state of undress and distress on the bed. Count 6, the engaging in sexual intercourse without consent found against Randhir Singh, related to these events.

25. Then, the appellant came into the bedroom and found the complainant trying to hide in a cupboard. At this stage she was crying loudly in a state of obvious distress. He told her to calm down. Now she realised that four, not three, men were in the apartment. The appellant left the bedroom to get her a drink of some sort which she refused when he returned. While outside he sent the two photos that Gora had taken on his phone to Gora’s phone.

26. On his return to the bedroom, the appellant told the complainant that he was the “real boss” rather than Randhir Singh. He tried to comfort the complainant by touching her gently and telling her falsely that everything was okay. He told her that he wanted to go to bed with her “with this,” placing his hand over her heart. The complainant was crying, sobbing loudly and uncontrollably. She asked him how he could expect her to do so in that situation.

27. The appellant told the complainant that he had been the one who had sent her the text messages and that Randhir Singh was just following orders. The appellant told her that he knew her husband and could cause her husband to lose his job. He reinforced the earlier threats he had made at the shopping centre by saying that he would show the texts to her husband.

28. The appellant told the complainant that the men in the other room were going to follow his orders and that if he told them not to come inside the room they would not. He said that he would take her to Sydney. The complainant continued to cry throughout the ordeal and begged to be let go. She only escaped at about 3.25 pm when the appellant fell asleep and the third man in the apartment awoke and heard her sobbing in the bedroom. The unlawful confinement by the appellant lasted about one and a half hours. Count 7, the confinement offence found against the appellant, related to these events.

29. During the period of unlawful confinement, the appellant engaged in three acts of sexual intercourse without consent. On his return to the bedroom the appellant guided the complainant to the bed and undressed her. She continued crying loudly and out of control. She continually begged the appellant to let her go. The appellant got on top of her and penetrated her vagina with his penis. She moved around trying to resist. She said to the appellant that she did not like what he was doing, but he persisted. The bed collapsed as the complainant moved around trying to resist the appellant. Count 9, the offence of engaging in sexual intercourse without consent alleged against the appellant, related to this event.

30. After the bed had broken, the appellant asked the complainant to get on top of him. She refused. He positioned himself behind her and inserted his penis into her vagina. She continued to sob loudly but stopped her acts of resistance. Count 10, the offence of engaging in sexual intercourse without consent found against the appellant, related to this event.

31. Then the appellant twice deliberately penetrated the complainant’s anus with his penis. The complainant told him that this was painful and he replied that it was not. Trauma from this act caused bleeding. Count 11, the offence of engaging in sexual intercourse without consent found against the appellant, related to this event.

The Sentencing Remarks

32. The primary judge outlined the personal circumstances of each of the appellant and Randhir Singh. He said that he took these circumstances into account in sentencing but said that there was little in them to which he could attach much weight. As the personal circumstances did not figure significantly in the arguments on appeal it is not necessary to elaborate on them now.

33. The primary judge then outlined the facts relating to each offence which the jury must have found established beyond reasonable doubt in order to convict the appellant and Randhir Singh. Those facts have been set out in the previous section of these reasons for judgment.

34. The primary judge then set out his conclusion in respect of each count.

35. In relation to Count 1, the joint offence of abduction, he said at [33]:

The offenders were well aware of the effect of the blackmail throughout what followed. They knew that the threats had intimidated the complainant into submission. The offenders' use of blackmail to make the complainant submit to their will deliberately exploited the vulnerability of the complainant. The mere fact that neither offender used physical force at this point does not detract from the objective seriousness of their offending on the joint count. The offenders knew and planned that the complainant would find their threats as overwhelming, so that she would be theirs to do as they wished. And, that is what they did. The nature of their offending on the first offence is between the middle and upper end of the objective seriousness of the offence under s 63.

36. In relation to Count 3, the offence of engaging in sexual intercourse without consent committed by Randhir Singh, the primary judge said at [36]:

This offence was of short duration. It was not, however, minor. The complainant could not escape from the moving car. I am satisfied that the third count was an offence in the mid-range of objective seriousness, but toward the lower end.

37. In relation to Count 4, the indecency offence committed by Randhir Singh, the primary judge said, at [38], that it was at the lower range of the mid-range of objective seriousness.

38. In relation to Count 5, the offence of engaging in sexual intercourse without consent committed by Randhir Singh, the primary judge said:

39. I am satisfied that Randhir Singh unlawfully confined the complainant in the apartment in those circumstances and that his offending was in the higher end of the objective range of seriousness of the offence under s 34. 44. The offence was not of long duration, but it achieved the offender's purpose; that is, he had sexual intercourse without consent with the complainant while he had unlawfully confined her in the apartment.

40. In relation to Count 6, the offence of engaging in sexual intercourse without consent committed by Randhir Singh, the primary judge said:

41. The physical act of penetration of a victim's body is, as the offence created by s 54(1) recognises, a very serious offence in itself. 49. Here the complainant was a woman who was begging to be allowed to leave, saying that she did not like the penetration by Randhir Singh as it was happening and who believed that she was in an apartment with two men other than him. 50. Moreover, I am satisfied that Randhir Singh did not use a condom and took no steps to guard himself against transmitting any sexual disease he may have had or causing the complainant to be exposed to any risk of pregnancy. There is no evidence of either of those risks having been present, but the failure to use the condom is, in my opinion, an aggravating factor in addition to those that I have referred to. These matters leave me to be satisfied that the offence is at the higher end of the objective seriousness for this offence. … 54. I am satisfied beyond reasonable doubt that Randhir Singh left the complainant in the bedroom knowing full well that Ajitpal Singh intended to engage in sexual intercourse with her next. It was a callous act of abandonment on Randhir Singh's part. The complainant was already obviously traumatised. By then she was contemplating jumping from the 14th floor apartment.

42. In relation to Count 7, the offence of confinement committed by the appellant, the primary judge said:

43. The unlawful confinement by Ajitpal Singh lasted about one and a half hours, during which time he engaged in the three acts of sexual intercourse comprising the remaining offences. I reject your counsel's submission that your purpose in confining the complainant to have sexual intercourse only amounted to a crime in the mid-range of seriousness. I am satisfied that the unlawful confinement was at the high end of objective seriousness for the offence under s 34. 60. You told the complainant that the three men in the other room would follow your orders. You knew that she was distraught, sobbing and afraid. You were determined to keep her in the bedroom and have sexual intercourse with her as you pleased and you effectively did so, holding her as your prisoner. Your conduct was deliberate, premeditated and unspeakably callous.

44. In relation to Count 9, the offence of engaging in sexual intercourse without consent committed by the appellant, the primary judge said at [62]:

I am satisfied that this first occasion of sexual intercourse was at the higher end of objective seriousness for an offence under s 54(1). You had reiterated your threat to tell the complainant's husband about the text messages. You knew that she was distraught and that she did not consent. You told her that the three men outside the bedroom would follow your orders. You knew that she had seen Gora take the photographs of her with your co-offender and that this added to her apprehension of what you could show her family. Like your co-offender, you did not bother to use a condom while you violated the complainant.

42. In relation to Count 10, the offence of engaging in sexual intercourse without consent committed by the appellant, the primary judge said at [65]:

She continued to sob loudly [after the first act of sexual intercourse] but stopped her acts of resistance on this occasion. As far as you were concerned, this was a continuation of your determination to engage in sexual intercourse with the complainant, knowing that she was not consenting. I am satisfied that this offence, too, is at the higher end of objective seriousness for an offence under s 54(1) for the same reasons of the prior offence, but was aggravated by your continuation of the complainant's ordeal by this act.

43. In relation to Count 11, the offence of engaging in sexual intercourse without consent committed by the appellant, the primary judge said:

44. The last offence was your act of penile-anal intercourse with the complainant. The medical evidence provided clear, independent corroboration of the complainant's account that she had been subjected to this form of intercourse. She said that she did not know if you did this accidentally. I am satisfied beyond reasonable doubt that you did it deliberately. The complainant told you that what you were doing was painful and you told her it was not. She said that you inserted your penis twice into her anus and caused her pain. … 68. The act of anal penetration was at the higher end of objective seriousness for an offence under s 54(1). Not only were the other aggravating factors for which your first two offences of sexual intercourse without consent present, but you knew you were causing the complainant physical pain and continued to do what you wanted regardless of how she was suffering. It was the final act of humiliation that you inflicted on her before you fell asleep and she was able to escape.

45. Having addressed the circumstances of each of the offences, the primary judge then considered together all the offences committed by each of the offenders.

46. In relation to Randhir Singh, the primary judge said that his culpability for the joint abduction offence was marginally less than the appellant for two reasons. First, Randhir Singh was aged 20 and younger than the appellant. Second, Randhir Singh was employed by the appellant in the appellant’s trolley collection business and was, as his employee, somewhat under his influence.

47. The primary judge considered that the offences committed whilst the complainant was confined amounted to a course of conduct. But each offence was a new and distinct offence. For this reason he concluded that part of the sentence for each offence should be made consecutive.

48. In relation to the confinement offence, the primary judge accepted that Randhir Singh did not know that Gora would take photographs of the complainant, but on the other hand leaving the complainant crying and begging to leave was callous.

49. In relation to the appellant, the primary judge referred to and took into account a prior history of driving offences which did not result in a sentence of imprisonment. The primary judge also took into account that the appellant was supporting his family in India, and that he may be unable to return to the village as a result of shame and embarrassment.

50. The primary judge said that the appellant had shown no remorse for his crimes, despite their disturbing nature.

51. As to the abduction offence, the primary judge said that the appellant was the ringleader of the joint offence. He was older than Randhir Singh and was also his employer.

52. The primary judge said that the confinement offence committed by the appellant was particularly callous. The appellant made the complainant endure over one and a half hours of imprisonment to satisfy his lust. The appellant ignored the complainant’s evident distress and repeated the blackmailing threats while subjecting her to a dreadful ordeal.

53. The primary judge considered that each of the sexual assaults formed part of a course of conduct but were also individual acts of sexual violence which required individual distinct punishment. The final act of anal intercourse was more serious and sexually violent than the others. The appellant treated the complainant inhumanely.

54. The primary judge then considered and accepted that 12 years was an appropriate total sentence for the course of conduct found against the appellant. The primary judge fixed the non-parole period of eight years without any further explanation.

Were the sentences imposed on the appellant manifestly excessive?

The Applicable Principles

54. The principles applicable in an appeal alleging that a sentence imposed was manifestly excessive are well known.

55. They were recently referred to by Murrell CJ in Monfries v The Queen [2014] ACTCA 46 at [20] – [23]:

56. A sentence appeal calls into question what is a quintessentially discretionary decision. Preservation of the sentencing discretion is of vital importance to the administration of criminal justice: Lowndes v The Queen (1999) 195 CLR 665 at [15]. 21. On such an appeal, the appellant must demonstrate an error in the exercise of the discretion. It may be a specific error such as the application of wrong principle, the consideration of extraneous or irrelevant matters, or making a mistake about the facts: House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 505, Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J (Gummow and Gaudron JJ agreeing) at [58] (Dinsdale). Alternatively, error may be inferred because the sentence is “manifestly excessive”; but manifest excess is a conclusion that can be drawn only if the excess is “plainly apparent” in that the sentence is “unreasonable or plainly unjust”: Dinsdale per Gleeson and Hayne JJ at [6]. “Manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL, Balthazaar v The Queen [2012] ACTCA 26 at [61]. 22. Whether a sentence is “manifestly excessive” must be considered in the context of the legislated maximum penalty that applies to the “worst possible case” and provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen (2005) 228 CLR 357 at [31]. The objective seriousness of the particular offence and the subjective circumstances of the offender are critical to determining whether a sentence lies within the available range. 23. In support of a case of “manifest excess”, an appellant should identify matters that support a conclusion (or necessary inference) of error: R v Campbell [2010] ACTCA 20 at [32], R v Thorn [2010] ACTCA 10 at [33].

57. In Bugmy v The Queen [2013] HCA 37 at [24] (French CJ, Hayne, Crennan, Kiefel, Bell, Keane JJ) it was said: Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence.

58. The appeal court must determine, per Hunt CJ at common law in R v Ellis (1993) 68 A Crim R 449 at 461:

[W]hether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentences which merely forms part of that range.

58. In Delaney v R; R v Delaney [2013] NSWCCA 150, the NSW Court of Criminal Appeal said at [57]:

It is well established that a sentencing judge’s characterisation of the degree of objective seriousness of an offence is an evaluative judgment with which the Court will not interfere unless the finding was not open. The sentencing judge here had the benefit of hearing all of the evidence at the trial and seeing the appellant give evidence.

59. As to the use of sentences imposed in other cases, the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520:

60. Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases… 54 In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303] – [305], Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned". 55 As the plurality said in Wong v The Queen (2001) 207 CLR 548 at [59]: "[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."

61. It follows that: “The sentence imposed upon the appellant might well be the highest imposed for a single instance of offending [of this kind]… That does not demonstrate that the sentence is unduly harsh”: MLP v The Queen [2014] NSWCCA 183 at [46]. See also: Jovanovic v The Queen [2015] ACTCA 29 at [41] - [44].

62. Counsel for the appellant approached the question on the basis outlined by King CJ, with whom White and Mohr JJ agreed, in R v Morse (1979) 23 SASR 98 at 99:

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

62. Consequently, the appellant’s submissions examined each count by reference to the objective seriousness of the conduct, the available maximum penalty, and, to the extent possible, the current sentencing patterns applicable to offences of the type.

Count 1 – the joint abduction offence

63. The primary judge sentenced the appellant to seven years imprisonment for this offence. The maximum penalty was ten years imprisonment.

64. The primary judge found that the offence committed by both offenders should be seen as at the middle to upper end on the scale of seriousness for this type of offence.

The appellant's submissions

65. Counsel for the appellant contended that his Honour’s view of the objective seriousness of the offence was largely based on the element of premeditation or planning and that this emphasis was misplaced, because the evidence did not support his Honour's finding.

66. Counsel for the appellant contended that, in the assessment of objective seriousness of the appellant’s conduct, the primary judge made a finding that the appellant and Randhir Singh planned, on 25 September 2013, that they would have threesome sex with the complainant and that, if the complainant resisted, they would force her by threatening to reveal the text messages exchanged on that day and night to her husband.

67. Counsel for the appellant contended that this finding was against the weight of the evidence. He submitted that the evidence established that the texts came from Randhir Singh. Randhir Singh had no reason before 26 September 2013 to believe that the complainant was not willing to have sex with him. Her change of mind only occurred at the shopping centre on 26 September 2013.

68. Counsel for the appellant referred to a passage in the transcript of the sentencing hearing where the primary judge agreed, in response to the submissions of counsel for the appellant, that one could not draw the inference that the planning started the night before. It was submitted that the planning, if not spontaneous, was undertaken as events unfolded.

69. Counsel for the appellant then submitted that the objective seriousness of the appellant’s conduct was mitigated by the fact that no force was used, no violence was threatened, and no weapons were used in the abduction of the complainant.

70. As to sentencing patterns counsel for the appellant contended that some of the comparable cases relied on by the respondent at the trial were obviously more serious than the present case as they involved violence and the use of weapons. It was submitted that those cases had the potential to be somewhat misleading if unqualified by authorities from the Australian Capital Territory.

71. That is a curious argument because the interstate cases relied upon by the respondent in respect of the abduction offence suggested sentences much lower than the sentence imposed in this case.

72. In Director of Public Prosecutions (DPP) v Dowie [2009] VSCA 154, on appeal by the DPP, the sentence for abduction with intent to rape was increased from one to two years imprisonment. The maximum penalty for the offence was ten years imprisonment. A 21 year old female was confronted on the street at 11.30 pm on the way home from a convenience store by the offender armed with a knife. He grabbed the complainant, put the knife to her throat and told her to shut up or he would kill her. Under that threat the offender frogmarched the complainant to nearby gardens and raped her.

73. In El-Waly v The Queen [2012] VSCA 184 the offender was convicted of one count of abduction for the purpose of sexual penetration and one count of rape. He was sentenced to four years and six months imprisonment on the abduction charge which was reduced on appeal to three years. The complainant, aged 20, was walking to a medical centre at about 10.00 am. She was legally blind with no sight in her right eye and limited sight in her left eye. The offender stopped his truck, told her he was from a care centre, and promised to take the complainant to the medical centre. Instead he took her to a vacant house in a housing estate and raped her. In reducing the abduction offence, the Court of Appeal said, at [82]:

The abduction was without doubt a serious offence involving, as it did, the deprivation of a particularly vulnerable victim’s liberty, with the intention of taking part in an act of sexual penetration. It must be borne in mind, however, that the abduction itself was carried out without gratuitous violence, and indeed without the use of any significant force. No threats of violence were made to compel the complainant to enter the appellant’s truck and, unlike the position in many other cases, no weapon was used. Moreover, the abduction occupied only a relatively short period of time.

74. Counsel for the appellant submitted on the appeal that the ACT case of R v Ngata and Massey (Unreported, Supreme Court of the ACT, Burns J, 4 October 2011) (R v Ngata and Massey) provided a useful comparison. Two offenders were convicted of unlawfully confining a person and taking him away with intent to hold him for advantage. The taking away offence can be compared with the offence of abduction. The offenders were standover men seeking to recover money from the complainant. The complainant was confined for some hours in an apartment and then taken away from there until he was able to escape. The following day the offenders went to his apartment, confined him for some time, and then took him away intending to hold him until he paid the money demanded. He was taken for several hours. No weapon was used and no overt threats were made. But, there was an unspoken aura of menace which made threats unnecessary. One offender who had a very long criminal history was sentenced to three years and ten months imprisonment for this offence. The other offender was sentenced to three years imprisonment. The maximum sentence available was 15 years imprisonment.

The respondent’s submissions

75. The respondent contended that the following factors supported the primary judge’s assessment of Count 1 as at the middle to upper range of objective seriousness for an offence of this type:

(a) The offence was pre-planned, to satisfy a perverted lust.

(b) It was carried out in company, on a vulnerable victim.

(c) It was achieved by blackmail and intimidation.

(d) The appellant was the ring leader of the plot.

76. Counsel for the respondent pointed to evidence which was said to support the primary judge’s findings. That evidence included that Randhir Singh sent photos of the complainant to the appellant on 25 September 2013. Further, the complainant said that the appellant told her that he was the one who sent the messages, not Randhir Singh. The appellant was with Randhir Singh on the night of 25 September 2013, they discussed the exchanges between the complainant and Randhir Singh, and the appellant provided transport and the apartment for Randhir Singh to meet the complainant.

Consideration

77. We do not accept that the primary judge approached the issue of premeditation erroneously.

78. The submissions of the parties proceeded on the basis that the primary judge made a finding that the abduction by the use of the threat to reveal the complainant’s text messages to her husband was planned on 25 September 2013 and that the primary judge took into account that measure of planning when assessing the objective seriousness of the conduct.

79. This assumption is not borne out by a careful reading of the primary judge’s reasons. Rather, his Honour found that there was a plan made between Randhir Singh and the appellant on the night of 25 September 2013, to have threesome sex with the complainant, and there was a further plan made at the shopping centre on 26 September 2013 to abduct the complainant by threatening her with disclosure of the messages. It was only the element of planning of the latter actions that his Honour took into account in assessing the objective seriousness of the conduct constituting the offence of abduction. This conclusion follows from the following references in the sentencing remarks of the primary judge.

80. First, the primary judge referred to the presence of the appellant, Randhir Singh and Gora at the meeting place on 26 September 2013, at [27] thus:

The three men were together in the car as part of their previous day’s plan for at least a threesome sexual encounter between the two offenders and the complainant.

81. That was plan one, namely, a plan to have threesome sex with the complainant.

82. Then, when the complainant told Randhir Singh the next day that she did not want to go on with the previous arrangement, Randhir Singh went back to the car and spoke to the appellant. What they then agreed was plan two. His Honour described that step at [28] thus:

The offenders agreed that Randhir Singh should return to the centre and again try to persuade the complainant to accompany him, and if she still refused, Ajitpal Singh would come to the centre and threaten the complainant that they knew where her son went to school and that he, Ajitpal Singh, would show her husband the text messages she had exchanged with Randhir Singh the previous day.

83. Randhir Singh then returned to the shopping centre. The primary judge said at [29]:

He again sought to persuade her to come with him in the car so that they could follow the previous night's plan. That was a reference to plan one.

84. When the complainant refused Randhir Singh, the appellant was called and he came to the complainant. His Honour said, again at [29]: Ajitpal Singh then carried out the plan, as both offenders intended, and threatened the complainant. The plan referred to was plan one, and the threats referred to were plan two.

85. At [33] the primary judge said:

The offenders knew and planned that the complainant would find their threats as overwhelming, so that she would be theirs to do as they wished.

86. This was the passage on which counsel for the appellant relied to submit that his Honour found that Randhir Singh and the appellant planned to threaten the complainant on 25 September 2013. But, the only planning which related to threatening the complainant to which his Honour referred was the planning on 26 September 2013. There was no finding that prior to 26 September 2013 the appellant and Randhir Singh planned to threaten the complainant with disclosure of the text messages. Although that conclusion is clear from the terms of the reasons, it is confirmed by the fact that it accords with the position put by both parties to the primary judge at the sentencing hearing, and also accords with his Honour’s acceptance of that position in the course of argument.

87. The complainant was forced to go with Randhir Singh from the shopping centre to the apartment as a result of the threat of exposure made by the appellant to her. The threat was a cruel instrument used to coerce the complainant to go with Randhir Singh. Not only would it cause her embarrassment, but it had the potential to threaten her relationships with her husband and her son.

88. It must also have been obvious to the complainant that the appellant and Randhir Singh were working together to get her to go with Randhir Singh. Their joint conduct increased the pressure on her and made any possible resistance more difficult. The fact that the appellant acted together with Randhir Singh aggravated the offence.

89. Accepting that the plan to threaten the complainant with the disclosure of the text messages only developed on 26 September 2013, that plan amounted to a degree of premeditation. After the complainant refused to go with Randhir Singh, he and the appellant discussed the situation which had arisen. They decided on a course of conduct which involved Randhir Singh trying to persuade the complainant again. If his persuasion failed then they agreed that the appellant would confront the complainant with the threat to reveal the text messages to her husband. Their planning aggravated the offence. Their conduct was not a spontaneous response to events which arose.

90. The primary judge did not refer to the sentencing pattern in cases of this nature. In the few abduction type cases referred to by counsel for the appellant on the hearing of the appeal, the sentences imposed were under three years’ and ten months imprisonment.

91. The appellant made the threats to the complainant in order to force her to come to the apartment so that he could engage in sexual intercourse with her there. The abduction offence concerns the circumstances by which the appellant and Randhir Singh pressured the complainant to leave the shopping centre and come to the apartment. It is necessary for sentencing purposes to keep separate the process by which the appellant and Randhir Singh got the complainant to the apartment, and the events which took place there. That is not an easy distinction to make. Many cases in which an offender engages in sexual intercourse without consent involve the forcible taking of the victim to the place of the offence. In those cases the forcible abduction is taken into account in sentencing as part of the circumstances of the sexual assault. Regularly there is no separate charge relating to the process by which the victim is brought to the place of the offence. That is not to say there is no separate criminality in the abduction. But it does warn against penalising the offender twice for the same criminal conduct.

92. When the circumstances of the abduction are separated from the sexual assaults which occurred as a result of it, and when regard is had to sentencing patterns in abduction cases, the sentence imposed by the primary judge on the appellant for Count 1 was unreasonable and plainly unjust.

Count 7 – the confinement offence

93. The primary judge imposed a sentence of 8.5 years imprisonment on the appellant. The available maximum was ten years imprisonment.

94. The primary judge said at [84]:

Your offence of unlawfully confining the complainant was plainly particularly callous. You made her endure over one and a half hours of imprisonment while you used her to satisfy your lust. You ignored her continuing evident deep distress and her pleas to be let go. You told her that the three men outside the door followed your orders. You repeated your blackmailing threats while subjecting her to a dreadful ordeal.

The appellant’s submissions

95. Counsel for the appellant addressed the objective seriousness of the offence. He submitted that the essence of this offence was the confinement of the complainant in the bedroom at the apartment. He accepted that it was relevant for the primary judge to take into account the distress of the complainant and the reinforcement of the threats of exposure. However, given the very long sentence imposed, the primary judge seems to have included an inappropriately large punishment for the sexual acts which were committed whilst the complainant was confined in the apartment. Those acts were punished separately. The primary judge may have punished the appellant twice for the same conduct.

96. Counsel for the appellant also argued that the seriousness of the offence was mitigated by the fact that there was no violence or threat of violence used to ensure the complainant’s confinement. Counsel for the appellant also questioned the basis of the primary judge’s calculations that the confinement was for one and a half hours.

97. Counsel for the appellant referred to the sentencing patterns in respect of confinement type offences.

98. In R v Nagata and Massey one offender was sentenced to three years imprisonment and the other to two years and three months imprisonment for the detention as distinct from the abduction.

99. In R v Stott (Unreported, Supreme Court of the ACT, Penfold J, 6 September 2011) (R v Stott) the complainant was taken to the house of the offender and detained for nearly eight hours from 11 pm. Repeated demands were made by the offender for the complainant to pay a debt of $8000. There were five other people in the house ensuring that the complainant remained there. However, the offender was the leader of that group of people. The offender threatened that she would set her dog on to the complainant if he called for help. The confinement was premeditated. The offender had an extensive criminal record. She made a late plea of guilty. She was sentenced to three and a half years imprisonment. Penfold J noted that a co-offender had been sentenced to 12 month imprisonment reduced from 16 months imprisonment fully suspended for a plea of guilty.

100. In R v Stott, Penfold J referred to three other ACT cases of unlawful confinement as follows.

101. In R v Kennedy (Unreported, Supreme Court of the ACT, 11 October 2010, Penfold J), a 60 year old offender who had led a blameless life unlawfully confined an elderly stranger in serious and frightening circumstances. The offence was out of character and caused by a combination of stress and inappropriate prescription medication. The sentence imposed was 20 months imprisonment reduced to 15 months imprisonment for the plea of guilty.

102. In R v In [2001] ACTSC 102, a 47 year old was sentenced to six years imprisonment for unlawfully confining his estranged wife. The confinement involved physical restraints as well as threats and actions which put his wife in great fear for her own safety and that of her children. The offender bound the complianant, blindfolded and gagged her, and then threatened to kill her. There were strong subjective circumstances in favour of leniency. The offender was genuinely remorseful. The confinement was undertaken when he was in a state of acute psychological stress. These factors caused Crispin J to fix a relatively short non-parole period of 18 months.

103. In R v Roberts [2005] ACTSC 43, a 32 year old man was sentenced on two counts of unlawful confinement. They were associated with six counts of acts of indecency. The sentencing remarks do not disclose the circumstances in which the offences occurred. The offender had a criminal record in his early 20s but had not offended for nine years. He was sentenced to three years imprisonment on one count of confinement and tofour and a half years imprisonment on the other count of unlawful confinement which involved an assault.

104. Counsel for the appellant relied on three further cases.

105. In Twerd v Holmes [2010] ACTSC 55 the offender forced his former partner into a taxi and compelled her travel with him against her will to a house where she was held for two hours and not permitted to use her phone. The offender was sentenced in the Magistrates' Court to 20 months imprisonment with a non-parole period of 15 months. That sentence was upheld on appeal.

106. In R v East [2015] ACTSC 54 the offender was the carer and partner of the complainant. He pleaded guilty to forcible confinement and assault. After an argument the complainant told the offender to leave the flat. She attempted to leave the premises, saying that she wanted him gone by the time she returned. The offender stopped her from leaving by use of violence. She tried to escape a number of times but was stopped by the offender each time over a period of five hours. The offender was sentenced on the confinement count to 20 months imprisonment reduced to 17 months because of the guilty plea.

107. Then in R v Catanzariti [2014] ACTSC 333 (Catanzariti) the complainant was confined on two occasions by the offender who was a drug dealer to whom the complainant owed money. On the first occasion the complainant was confined at the offender’s house and later tied up, taken to the bush and abandoned. Several days later at around 10 pm the offender came to a house where the complainant was visiting. Over that night the offender threatened and brutally assaulted the complainant on numerous occasions including by beatings, by anal rape with a beer bottle and other implements. When subsequently examined there were 27 individual identifiable injuries found, some of which were life threatening. The offender was charged with numerous offences and made a late plea of guilty. He was sentenced on the forcible confinement charge to four years imprisonment reduced to three years and two months for the plea of guilty.

108. Counsel for the appellant contended that the ACT cases of unlawful confinement have generally attracted a head sentence of between two and five years imprisonment where violence is present as an aggravating circumstance. The upper end of that scale seems to be for cases where there is a high level of violence causing physical injury or a threat to cause injury or death, and where the offender had a significant criminal history.

The respondent’s submissions

109. Counsel for the respondent, in written submissions, contended that the following factors supported the primary judge’s view that the confinement offence was at the upper end of the range of objective seriousness for an offence of this type:

(a) The complainant was further confined (after her ordeal at the hands of the co-offender) when she was obviously distressed.

(b) The appellant gave the complainant to understand he commanded the men in the apartment.

(c) He threatened to take the complainant to Sydney.

(d) During the confinement, which lasted one and a half hours, the appellant engaged in three separate acts of sexual penetration.

(e) As his Honour found “your conduct was deliberate, premeditated and unspeakably callous”.

110. In oral submissions counsel for the respondent referred to the continuing climate of fear engendered by the appellant. The threats were renewed in different forms. At the shopping centre in the course of the abduction the appellant first threatened to disclose the messages. However, in the course of the confinement and in order to force the complainant to do as he wanted, and at one stage directing her to call her husband to say that she would not be home that night, the appellant threatened to show the messages and the photos to the complainant’s husband.

Consideration

111. Just as in the case of the abduction offence, the threat made by the appellant to the complainant to reveal the text messages to her husband was cruel. The circumstances of the confinement in the apartment were more threatening and distressing to the complainant. There was the addition of the threat to reveal the photo taken by Gora, and there was the circumstance that Randhir Singh had already engaged in sexual intercourse with the complainant without her consent. The complainant had become more distressed as the ordeal went on. The appellant knew that he was continuing and prolonging the distress of the complainant.

112. But, as in the case of the abduction offence, the primary judge did not refer to sentencing patterns in such cases. Counsel for the appellant referred to more cases in this category than in the category of abduction cases. Most of the cases referred to involved sentences of less than half the sentence imposed in this case and those cases were no less serious than the present. Even in the extreme circumstances of the confinement in Catanzariti a sentence of four years imprisonment was imposed.

113. There is force in the contention of counsel for the appellant that the very heavy sentence imposed by the primary judge suggests that there was too much regard given to the offences which occurred during the period of confinement when fixing the sentence. Just as in the case of the abduction offence, it is necessary to draw a distinction between the criminality involved in the confinement and the criminality involved in the offences committed in the course of the confinement. Otherwise, the offender will be punished twice for the same conduct. As in the case of the abduction offence, confinement is often an element in the criminality of the offence of engaging in sexual intercourse without consent. Regularly, offenders are charged with the offence of engaging in sexual intercourse without consent but not additionally charged with confining the victim in order to commit the offence. The confinement is taken into account in sentencing as part of the culpability of the offender for the sexual assault. Thus, when the confinement offence is separated from the offences which occurred during the period of confinement, and sentencing patterns in confinement type cases are considered, we regard the sentence imposed by the primary judge on the appellant for Count 7 as unreasonable and plainly unjust.

Counts 9 and 10 – the offences of engaging in sexual intercourse without consent

114. For each of these offences the primary judge sentenced the appellant to eight years imprisonment. The maximum available was 12 years imprisonment. The primary judge regarded both offences as at the higher end of objective seriousness.

The appellant’s submissions

115. As to the objective seriousness of the conduct, counsel for the appellant accepted that the complainant’s distress, her moving about, her indication that she did not like the activity and the appellant’s awareness of her lack of consent were all relevant matters of aggravation. However, counsel for the appellant submitted that these factors did not render the offence as one at the highest level of objective seriousness. Unfortunately, those elements were likely to be present in many cases of this type. There was no infliction of violence separate from the inherent violence of the offence, no weapons were used and no threats of violence were made.

116. As to sentencing pattern, counsel for the appellant referred to a number of cases which were said to show that sentences of the magnitude imposed by the primary judge were not within the range imposed in the ACT for sexual assault cases. Sentences for this offence generally fell within the range of two to six years imprisonment.

117. The following examples relied on by counsel for the appellant all involved penile / vaginal intercourse except where otherwise indicated. The cases are arranged in ascending order of the length of the sentences imposed.

118. In R v MT [2014] ACTSC 162 Refshauge J sentenced the offender to two years imprisonment for engaging in sexual intercourse without consent. The complainant was sleeping when the offence occurred and the offender continued over her protests as she awoke. His Honour referred to some factors relevant to sentencing for this type of offence. The offence was spontaneous or situational rather than targeted. The absence of a condom made the offence more serious. The duration of the bodily invasion was short. The offence was a single offence and not part of a course of conduct. Consequently, the offence was at the lower end of objective seriousness.

119. In Catanzariti the offender was sentenced to three years and six months imprisonment reduced from four years for the plea of guilty. This sentence was for an incident when the offender told the complainant to bend over and then inserted the end of a beer bottle for about one inch into the complainant’s anus. Next he attempted to insert a pencil and a screwdriver into the complainant’s anus.

120. In R v Punna-Ophasi (Unreported, Supreme Court of the ACT, Burns J, 5 October 2012) the offender was sentenced to three years and eight months imprisonment for engaging in sexual intercourse without consent. The complainant and the offender were drinking with others at the complainant’s student accommodation. The others left and the offender stayed back in the living area with the complainant. There was some sexual activity between them. The complainant then went to bed in a locked area of the accommodation. The offender banged on her bedroom door but was told to leave. He then opened and shut the exterior door of the apartment as if he was leaving but in fact remained there. Later the complainant came out of her bedroom. The offender grabbed her and had sexual intercourse although the complainant made it clear that she did not want to. The trick used by the offender to give the complainant the impression that he had left demonstrated a level of planning of the offence.

121. In R v TN (Unreported, Supreme Court of the ACT, Penfold J, 10 September 2013) the offender was sentenced to four years imprisonment reduced from five years for the plea of guilty for engaging in sexual intercourse with his estranged wife without her consent. The offender and the complainant began talking after they had been out for dinner. The location was a deserted car park. The offender reclined the complainant’s seat and climbed on her. He said he wanted to have sex with her and she refused. He then proceeded without her consent.

122. In R v Dutton (Unreported, Supreme Court of the ACT, Higgins CJ, 12 March 2013) the offender was sentenced to five years imprisonment reduced from six years for a plea of guilty. The offender struck up an acquaintance with the complainant and ended up in her flat. He portrayed himself to the complainant as a man of violence who had been in jail, had been shot by police whilst holding his family hostage, had stabbed a security guard and had done over drug dealers for the drugs and money. The offender then made the complainant understand that she had no choice but to have sex with him. As a ploy she told him she had a disease which would not make it appropriate for him to have sex with her. He then forced her to engage in fellatio. The complainant said that this lasted for ten minutes. The offence was significantly aggravated by the implicit threats of violence and because it took place in the complainant’s home and whilst her young son was present.

123. In R v Sila [2015] ACTSC 64 the offender was sentenced to five years and two months imprisonment reduced from six years for a plea of guilty. The offender broke in to the house of his estranged wife, pinned her to the bed, and forced his penis into her vagina as she tried to call the police. The offence took place in the complainant’s home, a place, as Burns J said, where she was entitled to feel safe. The offender committed the offence to exercise power and control over his estranged wife out of anger at the ending of their relationship. At the time of the offence, the offender was on bail conditions prohibiting him from attending the home of his estranged wife.

124. In R v March [2014] ACTSC 244 (March) the offender was sentenced to seven years and three months imprisonment reduced from eight and a half years for a plea of guilty. The offender had a long criminal history. The complainant was an 18 year old girl who lived in a granny flat at her mother’s house. The offender opened the unlocked door and walked in at 12.40 am. The complainant told him to go away and reached for her phone. He told her not to touch it. The offender forced the complainant to engage in a series of acts of sexual intercourse. He threatened that he would hurt her if she did not comply. She began to cry and asked him to stop. He forced her to perform oral sex. Then he forced her to undress. She begged him to use a condom and he agreed. He then had penile / vaginal sexual intercourse with her and ejaculated within her because the condoms kept coming off. The offender forced the complainant to insert her finger in his anus. Then he performed oral sex on her despite her clear request for him to stop. Again he threatened to hurt her if she did not comply. He demanded that she not tell anyone and threatened her with grave consequences if she did. As he left he said goodbye using her name which he had seen on a letter. The incident lasted two hours. The complainant felt coerced, fearful for her safety and the safety of her family. She felt extremely frightened, exhausted and helpless. Murrell CJ referred to a number of features which made the offence objectively very serious. The offence occurred in the complainant’s house at night when she was in bed. The charge included a number of acts of sexual intercourse of different types. It was not a case of one brief isolated act of sexual intercourse. It lasted over two hours. Throughout the incident the complainant was terrified. The offender ejaculated without a condom thereby creating the risk of pregnancy or sexual transmitted disease.

125. The Queen v King [2013] ACTCA 29 (King) was a successful Crown appeal against the inadequacy of sentences imposed. The offender was charged with 25 offences against young men or boys. He was their cricket coach. Seven of the charges alleged sexual intercourse with complainant J who was under 16. The maximum sentence available was 14 years imprisonment. Each of the offences involved the offender engaging in fellatio on the complainant or forcing the complainant to engage in fellatio on him. For each of two of the offences the offender was sentenced to three years and four months imprisonment. For each of three other offences he was sentenced to three years and nine months imprisonment. The final two offences involved anal digital penetration. The offender was sentenced to four years imprisonment for each of those offences. The Court of Appeal took into account that the offender knew that what he was doing was wrong and constituted a serious criminal offence. His actions were not isolated and were an abuse of the trust of the complainants, their parents, and members of the cricket club.

The respondent’s submissions

126. The respondent contended that the following factors supported the primary judgment’s assessment that Counts 9, 10 and 11 were at the upper end of seriousness for an offence of this type:

(a) The offences were committed under the continuing and re-iterated threats and blackmail, and with the presence of other men in the apartment.

(b) Initially the complainant tried to resist, but was overborne by the persistence of the appellant.

(c) The appellant did not use a condom, despite fully penetrative intercourse.

(d) In relation to the last offence, the appellant continued knowing he was causing the complainant pain, and regardless of her suffering, in a final act of humiliation. Consideration

127. The appellant’s use of threats to the complainant to reveal the text messages and photos in order to force her into engaging in sexual intercourse was an aggravating circumstance in the two sexual assaults. Whilst the appellant did not apply physical violence to the complainant, the cruel threat had the same effect. The appellant knew that Randhir Singh had already sexually assaulted the complainant, yet he continued her ordeal. The ordeal was not over quickly but lasted at least more than one hour. By telling the complainant of the control he exercised over the other men in the apartment, the appellant made it clear that the complainant had no way out. These circumstances aggravated the sexual assault.

128. The primary judge did not expressly refer to the sentencing patterns for offences of this type. On the hearing of the appeal counsel for the appellant referred to a significant number of such cases. In only one of those cases, March, was the sentence imposed near the eight years imposed for each such offence in this case, and the circumstances in March had features of greater seriousness than the present. While there is no correct sentence for offences of this type and different judges may legitimately take different approaches, the cases establish that, even in the aggravated circumstances of the present two sexual assaults, the sentences imposed by the primary judge were so far outside the range for cases of the type that the sentences were unreasonable and plainly unjust.

Count 11 – engaging in sexual intercourse without consent

129. The primary judge sentenced the appellant to ten years imprisonment on this count which involved anal intercourse. The available maximum sentence was 12 years imprisonment. The primary judge regarded this as the most serious and sexually violent offence.

The appellant’s submissions

130. As to the objective seriousness of the offence, counsel for the appellant accepted that this was the most serious of the sexual offences committed by the appellant.

131. As to sentencing pattern, the cases referred to which involved anal penetration were King, March and Catanzariti. Counsel for the appellant contended that the present case lacked the violence or particularly vulnerable victims, including children, present in those cases.

The respondent’s submissions

132. The respondent dealt with Counts 9, 10 and 11 together. The submissions are set out in [126] of these reasons for judgment. In relation to this count the respondent contended that the appellant continued knowing that he was causing the complainant pain and regardless of her suffering.

Consideration

133. The circumstances which existed when the offences charged in Counts 9 and 10 were committed also applied when the offence charged in Count 11 was committed more or less immediately afterwards.

134. The discussion about those offences applies equally to this offence. The sentences imposed in the cases referred to in that discussion also provide some guidance in relation to this offence.

135. There were two additional factors relevant to this offence which were not present in Counts 9 and 10. One was that the appellant caused the complainant pain in the course of anal penetration, and caused further distress when he refused to acknowledge that the act was causing her pain. The other factor was that this was a different form of sexual intercourse. Each of these factors added to the seriousness of the offence.

136. The sentencing patterns referred to in the discussion concerning Counts 9 and 10 and the few additional cases of anal penetration reveal sentences markedly less than the sentence imposed by the primary judge. That sentence was unreasonable and plainly unjust.

Concurrency, Accumulation and Totality

137. The primary judge imposed on the appellant a total term of imprisonment of 12 years. This total was achieved by making the sentences for Counts 7, 9 and 10 each cumulative on the sentence for Count 1 by one year each, and by making the sentence for Count 11 cumulative on Count 1 by two years.

The applicable principles

138. There is no dispute between the parties about the relevant principles applicable to the issues of concurrency, accumulation and totality. The appellant’s written submission extracted a lengthy passage from King which discussed the general principles concerning sentencing for multiple offences and referred to the main authorities on the subject.

139. For present purposes it is sufficient to note that concurrency in sentences is designed to reflect elements which are common between multiple offences. Accumulation on the other hand, is designed to reflect the discrete criminality of each offence. Then, the totality principle requires an assessment whether the whole sentence properly reflects the extent of the criminal conduct.

The appellant’s submissions

140. The appellant’s written submissions contended that even if the very long sentences imposed by the primary judge were justified, there was insufficient provision for concurrency.

141. Counts 1 and 7, it was contended, covered one course of conduct involving threats to expose the text messages resulting in a deprivation of liberty. The degree of accumulation was not warranted.

142. Counts 9 and 10 reflected one course of conduct closely connected in time. A small accumulation was appropriate but not the two years imposed.

143. Count 11 involved sexual intercourse of a different character and hence a degree of accumulation was warranted but not the additional two years imposed.

144. The overall sentence did not accord with the sentencing outcome in the cases of unlawful confinement and kidnapping together with sexual assaults which were referred to by counsel for the appellant.

145. There was little separate attention given in the oral submissions to these matters. Rather they were treated as one aspect of the argument that the result of the sentencing was unreasonable.

The respondent’s submissions

146. The written submissions of the respondent emphasised the need “to acknowledge and have regard to the separate harm done by the different criminal acts of the offender”: R v Tonari [2014] NSWCCA 232 at [74].

147. Those submissions also emphasised the need for restraint on the part of appeal courts in the determination of error in the structuring of sentences for multiple offences. In R v TW (2011) 6 ACTLR 18, Penfold J said at [83]:

Even more so than for most other claims of specific error, a claim that the structuring of a sentence is erroneous needs to be made out by careful argument, since there is no single correct approach to the structuring of multiple sentences, and there may be variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise. In Markarian v The Queen 228 CLR 357 at [27], the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) noted more generally that: [T]here is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

148. In the written submissions for the respondent it was contended that there was no error of principle in the approach adopted by the primary judge. The complaint of the appellant was about the way in which the primary judge exercised his discretion, but such a complaint does not disclose appealable error.

149. In oral submissions, counsel for the respondent, contended that it was artificial to seek to deconstruct the sentence into separate elements. Rather, the Court should look at the totality of the sentence and in this case the totality properly reflected the appellant’s criminality.

Consideration

150. The appellant's submissions on concurrency, accumulation, and totality were related back to the argument that the sentences were manifestly excessive. In particular counsel for the appellant argued that the totality principle was not properly applied because the overall sentence was far greater than the overall criminality justified.

151. In view of our conclusion that the sentences imposed by the primary judge were manifestly excessive the appellant will be re-sentenced. It is unnecessary therefore to consider the detail of the submission on concurrency, accumulation and totality as applied to the sentence imposed by the primary judge. Rather those principles will be applied to the resentencing of the appellant as follows.

152. In general terms we accept that Counts 1 and 7 involved a course of conduct which should be recognised by a certain degree of concurrency. There was however, also a degree of separate criminality associated with each of the abduction and confinement offences which should be recognised by a certain degree of accumulation.

153. Counts 9, 10 and 11 form part of a separate course of conduct linked closely in time and hence should attract a degree of concurrency. But, again, each of the three offences exhibited separate elements of criminality which require discrete punishment and some degree of accumulation.

Non-parole period

154. The primary judge imposed a non-parole period of eight years, being two-thirds of the head sentence.

The appellant’s submissions

155. The arguments for the appellant are captured in the following passage from the written submissions:

His Honour did not state why the non-parole was set at this level. Indeed His Honour made limited findings in respect of the appellant’s prospects of rehabilitation other than he had shown no remorse. The sentencing proceedings became overwhelmed to some degree by the consideration of whether the appellant would be deported after his sentence was served. It is submitted that this obscured the consideration of matters relevant to the offender particularly the reality that for the period of his sentence he was going to be served [sic] with the prisoner isolated from his family and alienated from former partners. His lack of English language skills was going to add to that isolation. These were matters identified in the sentence of Randhir Singh as being relevant and may have ameliorated his sentence to some degree.

The respondent’s submissions

156. The written submissions of the respondent argued that the setting of the non-parole period was a discretionary exercise. The written submissions refer to the approach of the primary judge and emphasise his advantage gained from hearing the trial as follows:

The primary judge had sat through the trial. He had heard and seen the evidence given by the appellant both in the trial and on sentence. His Honour specifically referred to, and took into account the subjective circumstances of the appellant, including those matters that were favourable… Although he did not specifically refer to prospects of rehabilitation, his conclusions about the role played by the appellant, the objective seriousness of the offending, the callousness of the appellant’s conduct and in the context of all of those factors, the lack of remorse, were highly relevant to that issue.

Consideration

157. Although the written submissions dealt with this issue of the non-parole period, no attention was given to it in oral submissions. The primary judge made no error of principle in setting the non-parole period at two thirds of the head sentence. However, as the appellant will be re-sentenced by this Court, the fixing of the non-parole period will be revisited.

Parity

The applicable principles

158. There is no dispute between the parties as to the applicable principle concerning parity between co-offenders. That principle was articulated by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 301 as follows:

The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error . Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. (Footnotes omitted.) See also: Pavicevic v The Queen [2010] ACTCA 25; Rubino v The Queen [2015] ACTCA 22 at 26.

The appellant’s submissions

159. Counsel for the appellant argued that the appellant and Randhir Singh were engaged in the same criminal enterprise. The total sentence imposed on Randhir Singh was eight years imprisonment and the total sentence imposed on the appellant was 12 years imprisonment. Yet Randhir Singh was convicted on a number of sexual offences which occurred over a longer period, at two different times and in public and private settings. The sexual offences committed by the appellant all occurred effectively at the one time, although included anal intercourse.

160. Counsel for the appellant argued that the primary judge, with one exception, did not make explicit findings about the reasons for the differing outcomes.

161. In relation to the joint abduction offence the primary judge found that the appellant was the ring leader and, in relation to Randhir Singh, said “your boss was your co-offender, and you felt, I infer, somewhat under his influence… In my opinion your youth and position as an employee of your co-offender made your conduct in abducting the complainant under Count 1 marginally less serious than that of [the appellant].” The primary judge did not point to the facts which supported these findings. The following evidence tended against the conclusion:

(a) Randhir Singh instigated the contact with the complainant;

(b) Randhir Singh shared her details with others;

(c) Randhir Singh, took her to the flat and engaged in forced sexual intercourse with her as he did so;

(d) Randhir Singh engaged in acts of intercourse with her in the basement, confined her in the unit and then had sexual intercourse with her.

162. Further, the position of the respondent at the sentencing hearing was that there was no difference in culpability between the two offenders in respect of the abduction.

163. Counsel for the appellant contended that the primary judge did not explain why the sexual assaults at the apartment should attract a sentence of eight years on Counts 9 and 10 for the appellant and five and seven years on Counts 3 and 6 respectively for Randhir Singh, why there should be a difference of 2.5 years in the sentences for the unlawful confinement and why there should be an overall difference of four years in the total sentence. There was, so it was said, insufficient difference in culpability or personal circumstances to justify such different outcomes.

The respondent’s submissions

164. Counsel for the respondent argued that the differences in sentences were justified by the following factors:

(a) The appellant was the ring leader of the plot. With regards to count 1, it was the appellant who went into the Kippax Shopping Centre and threatened [the complainant] when it looked as though she may not go with [Randhir Singh]. The appellant then arranged for a second car to be brought to the location as part of a deception to have [the complainant] accompany [Randhir Singh]. His was the dominant role in carrying out count 1.

(b) The sexual acts by [Randhir Singh] were of far shorter duration (10 minutes as opposed to an hour and a half)... The period of unlawful confinement by [Randhir Singh] was thus also far shorter.

(c) During the unlawful confinement by the appellant the appellant continued to intimidate [the complainant], e.g. about the Tango messages, with the photos taken by Gora, and with a suggestion he would take her to Sydney.

(d) During the sexual acts and unlawful confinement by the appellant [the complainant] was visibly more distressed. Her evidence was she was struggling, crying loudly, and continued to beg to be released.

(e) [The complainant's] evidence was that [Randhir Singh] was "gentle" with her whereas the appellant was not. The appellant's sex acts were very humiliating and more painful to [the complainant] than those of [Randhir Singh], in particular the anal penetration in count 11.

(f) The appellant showed little or no remorse into his offending and in his evidence at the sentencing hearing continued to deny the seriousness of his offending. Contrarily, [Randhir Singh] wrote a statement to [the primary judge] in which he apologised for his offending.

(g) The appellant was about 10 years older than [Randhir Singh] and had a criminal history, albeit a fairly short one, whereas [Randhir Singh] was not known.

165. Apart from Count 1, the offenders were charged with separate and different acts of criminality. Counsel for the respondent argued that there was plenty of evidence that the appellant’s individual acts of criminality were more serious in the circumstances.

Consideration

166. There were aspects of the appellant's offending which made his conduct more culpable than the conduct of Randhir Singh. The primary judge said that the appellant was marginally more culpable for the joint offence than Randhir Singh by reason of his age and that he was the employer of Randhir Singh. That observation followed from the primary judge’s view formed from hearing the evidence and sitting through the trial. His Honour's assessment should be accorded some deference. Further, the appellant made the threats to the complainant at the shopping centre which forced her to go with Randhir Singh. And the sexual assaults were committed by the appellant in more distressing circumstances to the complainant because they came after Randhir Singh had committed the earlier sexual assaults on her. Importantly, the appellant demonstrated no remorse, whilst Randhir Singh did. The totality of the sentence imposed on the appellant should reflect a somewhat greater culpability on the appellant. However, the differential applied by the primary judge between the two offenders overemphasised to an unreasonable degree the culpability of the appellant compared with the culpability of Randhir Singh.

Re-sentence

167. We re-sentence the appellant as follows:

Count Offence Sentence Accumulation 1 Abduction (joint 3 years Base commission) 7 Unlawful 4 years + 1 year Confinement 9 Sexual intercourse 5 years + 1 year without consent 10 Sexual intercourse 5 years + 1 ½ years without consent 11 Sexual intercourse 6 years + 2 years without consent

168. The head sentence is eight and a half years’ imprisonment. We set a non-parole period of five years to reflect the fact that, as the appellant has no significant prior criminal record and no history of imprisonment, there are reasonable prospects of rehabilitation.

Orders

169. The appeal is allowed.

170. The sentence imposed by Rares J on 22 September 2014 is set aside.

171. In lieu of the said sentence, the appellant is sentenced to 8 and a half years’ imprisonment. The sentences imposed are as follows:

(a) On Count 1, 3 years imprisonment from 11 October 2013 until 10 October 2016.

(b) On Count 7, 4 years imprisonment from 11 October 2013 until 10 October 2017.

(c) On Count 9, 5 years imprisonment from 11 October 2013 until 10 October 2018.

(d) On Count 10, 5 years imprisonment 11 April 2015 until 10 April 2020.

(e) On Count 11, 6 years imprisonment from 11 April 2016 until 10 April 2022.

172. The appellant is to serve a non-parole period of 5 years from 11 October 2013 until 10 October 2018. I certify that the preceding one hundred and seventy-two [172] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 22 December 2015