53 In coming to the view that his Honour was in error in regarding that course of offending as in the worst case category Hulme J (with whom McClellan CJ at CL and Matthews AJ agreed) said:
"[105] In concluding that his Honour erred in concluding that each sexual intercourse offence was "more than a mid-range offence", I am not unconscious of observations in this Court to the effect that the Court should be slow to depart from a sentencing judge's conclusion as to where, in the range of objective seriousness an offence lies - see R v Dang [2005] NSWCCA 430; R v Mulato [2006] NSWCCA 282 at [37]; Perry v R [2006] NSWCCA 351; Stanford v R [2007] NSWCCA 73; R v Fisher [2008] NSWCCA 103. Nevertheless, a consideration of the evidence makes my conclusion of error inevitable. I have summarised that evidence early in these reasons and there is no need to repeat that summary here. It is sufficient to point out that the offences the subject of charges 5, 8, and 11, as distinct from the detain-for-advantage charges, commence little if any earlier than when the Complainant and Appellant went into a bedroom. For whatever reason, there the Complainant was compliant with the Appellant's demands and little more relevant to the current issue occurred than the simplest form of non-consensual intercourse.
[106] It is also pertinent to bear in mind some circumstances that distinguish the offences here from others that arise from time to time. Although fearful of the Appellant the Complainant at least knew him and no doubt was capable of making some assessment of the situation. Also relevant is the fact that while the Appellant gave the Complainant cause to fear him, the situation was not one where she had to endure the terror of an unknown kidnapper. The fact that much of what was occurring was to the knowledge of others in the community of which the Complainant and Appellant were members, even if some of these others were the Appellant's relatives, was a factor that made extremes of violence less likely. The case was not one where a victim walking through a lonely street or park at night is seized by a complete stranger about whom she knows nothing and who, for all the victim knows, may well kill her when the intercourse is over. There is nothing to suggest that the consequences of the Appellant's conduct - see R v Way (2004) 60 NSWLR 168 at [85] - included an unwanted pregnancy or AIDS or other potentially life damaging illness or left the Complainant with any fear of these matters.
[107] Many of these remarks apply to the offences the subject of counts 7 and 10. These offences, although more serious than those the subject of counts 5, 8 and 11, fall to be judged by the standards expressed or implicit in s61J. The circumstances of aggravation therein referred to include not only threats of actual bodily harm but also the actual infliction of such harm, a circumstance that will often be far worse than threats.
[108] The circumstances of the intercourse part of the offence the subject of count 10 were no more serious than those the subject of counts 5, 8 and 11. The threat was the holding up of a stick accompanied by the demand that the Complainant stop crying. While I do not intend to trivialise the threat and no doubt the fact of it being made was calculated to influence the conduct of the Complainant thereafter, that threat was significantly less serious than many that form part of offences against s61J.
[109] The circumstances of the intercourse part of the offence the subject of count 7 were also no more serious than those the subject of counts 5, 8 and 11. However, an element of the count 7 offence was actual bodily harm occasioned by, according to the Complainant, the Appellant punching and kicking her and jumping on her head causing a tooth to chip. Clearly these matters aggravate the offence but without trivialising these events either, they fall considerably short of the conduct and injury that is liable to occur in offences under s61J. Thus it is that none of the offences involving sexual intercourse reached the mid-point of objective seriousness.
…
[111] A fortiori did his Honour err in characterising the sexual offences as "offences of the worst type". His Honour went on to explain this characterisation because the offences "were committed in circumstances of degradation, violence and as part of a long campaign of violence against the same victim". In fact the degradation involved in the sexual offences was little or any more than is inherent in such offences and was far less than occurs in many, perhaps most, offences against s61I and 61J. Furthermore, most of the violence exhibited by the Appellant was the subject of other charges and not the sexual offence charges. By comparison with many offences against these sections with which the courts have to deal, all of the individual sexual offences here fell a long way short of offences of a worst type."
54 It is his Honour's interpretation of the judgment of this Court in Boney when sentencing the applicant which the applicant submitted led his Honour into error in concluding that the offending was in a worst case category.
55 In his sentencing remarks his Honour said:
"The next problem is that of classifying the seriousness of the offences. As I said earlier, the Crown has submitted that all four offences were offences of the worst type.
Mr Boulten does not agree with this. He has submitted that the offences could be considered as less serious than the offences committed by Boney because Boney had engaged in a course of conduct against the complainant over a long period of time, had a bad criminal record, had spent something over three and a half years in gaol for other offences and at the time of the offences was quite a mature man, not young like the offender Stephens.
I have considered this submission but I do not accept it. I sentenced Boney and in doing so, expressed the opinion that his offences should be categorised as offences of the worst type. However, the Court of Criminal Appeal did not accept my categorisation."
56 After referring to the judgment of Hulme J extracted above his Honour said:
"I feel obliged to accept that my assessment of Boney's criminality was in error. I agree with his Honour's characterisation of the seriousness of sexual assault attacks by strangers. I cannot accept that the present case is less serious than that of Boney. In fact it is very much worse.
It is clear that the offender here was a stranger about whom the complainant knew nothing or next to nothing. She might well have thought that he might kill her. He was also a stranger who secreted himself in her car.
Furthermore, he behaved in a very brutal and callous fashion towards her and treated her with the utmost contempt.
I have no evidence to suggest she became pregnant as a result of the vaginal rapes, but she might well have considered that to be a likelihood, just as she may have worried about AIDS or other sexually transmitted diseases. It would be surprising indeed if thoughts of all these matters were not going through her mind during the period of her kidnapping and defilement and afterwards.
I accept that he is young, but these were offences which require me to sentence him as an adult and to put the protection of the community as the primary object of the sentencing. At the time of these offences, the offender was 18 years and 7 months of age."