Consideration of Ground 1
29In considering this ground, it is necessary to identify the principles that directly and indirectly bear upon the question of whether and, if so, the basis upon which the antecedent criminal history of an offender may be a factor to be taken into account in determining sentence.
30The principles in this regard may be stated shortly as follows:
(1)The principle of proportionality as enunciated in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477 requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances: Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354; McNaughton (supra) at 572 per Spigelman CJ at [15].
(2)The proportionality principle applies so that a sentence should not be less than the objective gravity of the offence required: McNaughton (supra) per Spigelman CJ.
(3)The antecedent criminal history of any offender may not be used to increase the sentence beyond what is an appropriate sentence for the particular offence: Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 at 57.
(4)Accordingly, prior convictions do not themselves play a role in determining the gravity of the offence which, as the High Court confirmed in Hoare (supra), turns on the objective circumstances of the offence: McNaughton (supra) at [24]:
"... the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions."
(5)Prior convictions are pertinent in terms as to where, within the boundaries set by the objective circumstances, a sentence should lie: McNaughton (supra) per Spigelman CJ at [26] (Bell J (as her Honour then was) and Hislop J agreeing). This proposition may be seen to be reflected in references in Veen (No 2) (supra) to concepts such as an "attitude of disobedience to the law" and to the increased weight to be given to retribution, to "deterrence" (relevantly personal deterrence) and "the protection of society".
31In this respect, in Veen (No 2) (supra), having stated that the principle of proportionality is a firmly established one, the High Court (Mason CJ, Brennan, Dawson and Toohey JJ) observed at 473:
"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principal is clear between an extension merely by way of preventative detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."
32Spigelman CJ in McNaughton (supra) at [28] set out the following passage from the joint judgment in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at 640:
"... A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offence for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration." (emphases added)
33In the present case, it is necessary that attention be given to the structure and detailed analysis contained in the sentencing judge's Remarks on Sentence. His Honour set out the facts and circumstances of each of the offences against BH and SP. He then turned to discuss what was subtitled "Objective Seriousness of the Offences" (Remarks on Sentence, pp.10-16).
34In relation to the offences against SP, his Honour set out fifteen matters as follows:
"i. The offences were premeditated. (The offender was armed with a knife. The attack came when it was dark and at a place where the victim could be immediately removed to a secluded location where detection was unlikely.) It was submitted that the court should not find that this was premeditated offence. The court finds beyond reasonable doubt that this was not an offence committed as a result of a spur of the moment decision made when conducive circumstances coincidentally occurred, but that the offender, carrying the knife in anticipation of committing the offences, either lay in wait at the location until a suitable victim appeared, or that he stalked the victim until she reached a suitable location. It cannot be determined and is not relevant to determine which of the two alternatives occurred.
ii. The offences occurred when it was dark, and the victim was entitled to feel secure while walking on a public street.
iii. The victim was 15 years of age.
iv. He was armed with a 10-12 cm bladed knife, and used it to obtain acquiescence.
v. The removal of the victim from the bridge to underneath it was accomplished by physical force as well as intimidation with the knife.
vi. Her clothes were forcibly removed.
vii. Each of the acts involved physical force in the act itself.
viii. The victim was demeaned and belittled by verbal abuse.
ix. He ejaculated in the victim's mouth, the semen entering her throat and causing her to gag.
x. He placed at least three fingers in her vagina for a lengthy period of 10 to 15 minutes and moved them around with sufficient force to hurt her while simultaneously forcing his tongue into her throat.
xi. The penile/vaginal intercourse also caused the victim to suffer pain and to cry.
xii. He further ejaculated while having penile/vaginal intercourse.
xiii. After the offences he forced her, while she was at least naked from the waist down, to the riverbank. At the time he was holding the knife to her throat. Although he later indicated that he would release her and subsequently did so, the victim, 15 years of age, must have been terrified, considering that he had replaced his clothes, indicating that he had completed the sexual assaults, that she was about to be disposed of in the river.
xiv. The facts do not provide sufficient information as to the time involved. However, it is clear that it must have been a significant period, considering that the digital/vaginal intercourse alone was estimated as taking 10-15 minutes.
xv. The victim suffered cuts as a result of the offences, one to her back and one to her arm. They do not appear to have been deliberately inflicted rather than acquired as a result of the force used in assaulting her in the particular location, that is, by interaction with the ground or objects on it."
35His Honour then observed at pp. 14:
"Again, the offences disclose that the offender was driven by a need to sadistically dominate, demean and degrade the victim by placing her in significant fear for her life and wellbeing, to obtain acquiescence in her violation by the offender's extremely offensive conduct.
While it is possible to envisage the ways in which the offences may have been made worse, such as the infliction of deliberate injuries or being in company, the facts disclose a series of assaults than can properly be regarded in their overall effect as being very serious offences within the category of offence. That is, they fall at the high end of the range."
36The fifteen factors identified by the sentencing judge were all directly relevant to assessing the objective seriousness of the offence and none were challenged in the present proceedings. The Applicant's prior offences were not included in the fifteen factors.
37Finally, the length of the term of imprisonment imposed in respect of the offences against SP does not, in my assessment, support the argument put forward on behalf of the Applicant that it indicates his Honour presumably used the prior offences to aggravate the objective seriousness of the offence.
38SP was the only one of the Applicant's four victims who was under the age of 16 years as at the date of the offences (she was 15 years old at the time). That was an additional aggravating factor under s.61J of the Crimes Act. Additionally, in relation to SP, the criminality was because it involved, inter alia, dragging a 15 year old girl with a knife under the bridge where violent sexual assaults were then perpetrated upon her. These factors initially would result in considerably higher sentences than those imposed in the cases of BH, LE and JL.
39Additionally, I accept as valid the observation made in the Crown submissions that the sentencing judge dealt with the sentencing of BH on the basis that the offences committed against her were first offences. Secondly, in sentencing the Applicant in respect of BH no other prior offences played a role in determining the appropriate sentences.
40Similarly Tupman DCJ when sentencing the Applicant in respect of JL, being unaware of the offences that the Applicant committed against BH, proceeded on the basis that the offences against JL were the first sexual offences committed by the Applicant. Again first offending played no role in that sentence determination.
41Also, Holt DCJ had no information as to the Applicant having committed these prior sexual offences involving violence.
42At the time of sentencing the Applicant, King DCJ was clearly required to sentence him having regard to his offending for which he had been sentenced by Holt DCJ and Tupman DCJ.
43It is clear, having regard to the structure of the Remarks on Sentence, the detailed analysis of the facts and circumstances concerning the seriousness of the offence and his Honour's determination that they fall "at the high end of the range" that the observations by him were wholly directed to the question of determining the appropriate sentence for the offences against SP after, and not before, the sentencing judge had determined the objective gravity of the offences. It is, in my opinion, clear that his Honour's reference to the commission of the previous offences as an aggravating factor to be taken into account when sentencing for the offences was, consistently with the principles stated in Veen (No 2) (supra), an indication that his Honour was taking into account the antecedent criminal history to which he referred in determining the sentence to be imposed and not otherwise. In other words, having first determined, with regard to the objective gravity of the offences, that they fell at the high end of the range, prior convictions were taken into account only as to where, within the boundaries set by the objective circumstances, the sentences should lie.
44I should add that his Honour's observations that the sentences for the offences against SP "must be appropriate to them and only to them," by which he explained he meant "there must be no element of double punishment for the past offences", evidences the fact that his Honour was acutely aware of the way in which the Applicant's prior criminal history could be taken into account. It is clear that he was careful in ensuring that that was the only basis upon which he would have regard to such history.
45Accordingly, the submission on behalf of the Applicant that, in making these observations, his Honour was only "paying lip service" to the principle that there was to be no element of double punishment for past offences is without merit.
46I accordingly have concluded that there is no validity in Ground 1 and it should be dismissed.