Baldock v Tasmania - [2015] TASCCA 3

[2015] TASCCA 3

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Baldock v Tasmania [2015] TASCCA 3

PARTIES:  BALDOCK, Philip Kevin
  v
  STATE OF TASMANIA

FILE NO:  1277/2013
DELIVERED ON:  20 February 2015
DELIVERED AT:  Hobart
HEARING DATE:  11 November 2014
JUDGMENT OF:  Tennent, Estcourt and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Offender asserts manifest excessiveness – Plea of guilty to one count of rape and one count of aggravated burglary – Whether sentence of nine years' imprisonment with non-parole period of five and a half years manifestly excessive.

Aust Dig Criminal Law [3521]

Criminal Law – Particular offences – Sexual offences – Sentence – Rape and sexual assault – Single count of rape.

Aust Dig Criminal Law [2272]

REPRESENTATION:

Counsel:
             Appellant:  T Jago SC
             Respondent:  L Mason
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 3
Number of paragraphs: 32

Serial No 3/2015
File No 1277/2013

PHILIP KEVIN BALDOCK v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
ESTCOURT J
PEARCE J
20 February 2015

Orders:

Appeal allowed.
Order that appellant serve a period of nine years' imprisonment with a non-parole period of five and half years is quashed.
In lieu it is ordered that the appellant serve a period of six years' imprisonment to commence from 12 July 2013 and that he not be eligible for parole until he has served four years of that sentence.

Serial No 3/2015

File No 1277/2015

PHILIP KEVIN BALDOCK v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
20 February 2015

I have had the advantage of reading in draft form the reasons of Estcourt J in this appeal. In substance, I agree with those reasons and the outcome he proposes. However, I would add some further remarks.
On 11 December 2013, Phillip Baldock ("the appellant") was sentenced on his plea of guilty in respect of one count of rape contrary to the Criminal Code, s 184, and one count of aggravated burglary contrary to s 245. He was ordered to serve nine years' imprisonment with effect from 12 July 2013. It was also ordered that he not be eligible for parole until he had served five and a half years of that sentence. At the same time, the appellant was dealt with for a breach of a suspended sentence. The Court ordered that the 12-month suspended sentence be activated and that, of that 12 months, six months be served concurrently with the nine-year sentence already imposed. The net result was a likely six years of actual imprisonment.
There was no direct challenge to the order relating to the suspended sentence. The sole ground of appeal was that the sentence of nine years' imprisonment with a non-parole period of five and a half years was manifestly excessive. Counsel for the appellant, however, dealt with the appeal on the basis that the error in relation to the sentence was exacerbated by the activation of the entirety of the suspended sentence, and that the period of six years actual imprisonment which resulted from a combination of the substantive sentence and the cumulative part of the activated suspended sentence was beyond what was necessary to reflect the entirety of the appellant's criminal conduct.
I agree that the sentence of nine years' imprisonment with a five year non-parole period was manifestly excessive in all the circumstances. Allowing for the order relating to the suspended sentence to remain in place, I would also allow the appeal, quash the sentence imposed by the learned Chief Justice, and substitute a sentence of six years' imprisonment with effect from 12 July 2013 with a non-parole period of four years. The order made pursuant to the Community Protection (Offender Reporting) Act 2005 was not the subject of any appeal and should remain in place.
File No 1277/2013

PHILIP KEVIN BALDOCK v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
20 February 2015

The appeal

The appellant has appealed against a sentence imposed on him by Blow CJ on 12 July 2013.
For the crime of aggravated burglary and rape the appellant was sentenced by the learned sentencing judge to a term of nine years' imprisonment.
The notice of appeal contains one ground only, namely that the sentence was manifestly excessive in all the circumstances.

The facts

The following statement of the facts of the case is taken from the comments on passing sentence of the learned sentencing judge:
"Mr Baldock was very drunk on the day in question. I was told that he had consumed two 375ml bottles of spirits and about 12 stubbies of beer before committing these crimes. He was walking home from a hotel when he decided to commit the crime of rape. He did not know his victim. He committed the crime of aggravated burglary by walking onto her back porch as a trespasser, intending to commit the crime of rape. The victim lived alone. She was preparing her dinner when she heard a noise in the rear porch area, and went to investigate it. She had mobility difficulties. She used her walking stick to walk to the back door. Mr Baldock said something to her about looking for his dog. She did not understand what he was talking about, and therefore went outside to him. As she approached him, he slapped her to the face, hard enough to cause her pain. He then pushed her onto the floor of the porch, moved her walking stick out of reach, removed her trousers, her incontinence pants, her incontinence pad, and her shoes, and threw them onto the floor beside her. She attempted to reach her walking stick, but Mr Baldock continued to hold her to the floor.
He put his penis near her face and asked her to suck it. She did not do that. He then raped her vaginally. She tried to call out, but he slapped her to the face again, put his hand over her mouth, and continued to have sexual intercourse without her consent. It was painful. She feared for her life.
After some time, Mr Baldock got up and left. The victim could not get up from the floor. She could not reach her stick. The porch is not visible from the street. For all Mr Baldock knew or cared, she might have remained there until she died.
Fortunately it was garbage night, and the victim's son made a routine visit to put out the bins. He arrived about 6.40pm – well after dark. He found his mother on the floor of the porch, naked from the waist down. She was attempting to lift her head, but without success. Her glasses were near her head. She immediately told her son that she had been raped. He helped her. An ambulance was called, as were the police. She was taken to hospital.
At the hospital, she was examined by a doctor, who noted a 1.5cm tear to the edge of the vulva. She was physically well enough to be discharged from hospital either the same night or the next morning, but she was not willing to return to her home. She had lived there since the 1960s. It had been the family home for over 40 years, and a place associated with happy memories. Understandably, she decided not to return to live there. She had to remain in the hospital for a few days until alternative accommodation could be found for her. She had been able to live independently until this attack. Since her discharge from hospital she has been living in an aged care home. She went back to get some of her possessions a few times, but was too scared to go alone. She wants to put this atrocity in the past, and not to talk about it. She had nightmares and trouble sleeping for some time after the attack.
The rape also had consequences for family members. The victim's son was very disturbed by what he saw when he found his mother. Family members have had to deal with a difficult situation, finding alternative accommodation for the victim, and packing up the contents of the family home."

The comments on passing sentence

On passing sentence the learned sentencing judge, after summarising the circumstances of the crime, said:
"Mr Baldock was 42 years old on the day in question and is now 43. He was arrested on 12 July – four days after the rape – and has been in custody ever since. He has many convictions for crimes of dishonesty, including theft-related burglaries. He has no convictions for sexual offences. He spent short periods in prison for crimes of dishonesty in 2005 and 2007. On 26 September 2011 a magistrate imposed the suspended sentence whose activation I have to consider. It was a sentence of 12 months' imprisonment, wholly suspended on condition that Mr Baldock was not to commit another offence punishable by imprisonment for two years. That sentence was imposed in relation to 12 charges of burglary, a charge of attempted burglary, 7 charges of trespass, and 6 charges of stealing. Those charges related to a series of petty thefts and related burglaries, mainly burglaries of cars. When these crimes were committed, Mr Baldock had kept himself out of trouble for over 21 months of the 2-year period fixed by the magistrate.
Mr Baldock had a serious alcohol problem when he committed these crimes, and had had that problem for over 20 years. He is a man of quite low intelligence. I have been provided with a very thorough report by a psychologist, who found that Mr Baldock had problems with 'executive function', and thought that this could be at least partly attributable to sustained alcohol use. He does not have any form of major mental illness. He had a very unfortunate childhood, being taken away from his parents by the child welfare authorities when he was 5 years old. The only positive relationships during his childhood and adolescence were with two foster parents. He went to live with them when he was 14. They both died of natural causes when he was in his early twenties. For most of his adult life he has lived alone, moving from one town to another, not making friends, and only doing casual work. He has had difficulty finding employment because of a back injury as a teenager. He has never had full-time work. He did not start committing crimes of dishonesty until he was 34. Since then he has often stolen to get money to buy alcohol.
It counts in Mr Baldock's favour that he made a confession to the police in July and that he subsequently pleaded guilty. It was clear from a fairly early stage that the victim of this crime would not need to come to court and give evidence. The sentence that I will impose today will be significantly shorter than it would have been if she had needed to do that. Mr Baldock had little recollection of the events surrounding the rape, and did not concede that he had slapped his victim to face, nor that he had asked her to suck his penis. The prosecutor was able to adduce evidence of those facts without calling the victim. I am satisfied beyond reasonable doubt that those events occurred.
Mr Baldock's counsel told me that he was remorseful, and that he had expressed sorrow for his behaviour. It seems clear from the psychologist's report that Mr Baldock had little insight into the consequences of his crime.
Although I am taking into account Mr Baldock's plea of guilty, the fact that he made admissions to the police, his remorse, his low intelligence, and his unfortunate childhood and adolescence, I think that the rape was such a horrific crime that the only appropriate penalty is a very substantial sentence of imprisonment. I think that Mr Baldock will probably need the help of a parole officer for a long time after his release from prison. I will therefore impose a non-parole period that will make that possible.
So far as the suspended sentence is concerned, I am required by s27 of the Sentencing Act 1997 to activate the full 12-month sentence unless I think it would be unjust to do so. As to that issue, it is relevant that Mr Baldock stayed out of trouble for over 21 months of the 24-month period of suspension, and that the suspended sentence related to thefts, not sexual offending. However his breach of the condition of the suspended sentence was an appalling one, and both the old offending and the new offending were consequences of his alcohol abuse. In all the circumstances, I do not think it would be unjust for him to serve the full period of 12 months. I will activate the suspended sentence.
However, in sentencing Mr Baldock for aggravated burglary and rape, I must take into account the 'totality principle' as discussed by the High Court in Mill v R (1988) 166 CLR 59. To give effect to that principle, I will make the sentence for aggravated burglary and rape partly concurrent with the activated 12-month sentence for the earlier offences.
Phillip Kevin Baldock, on the charges of aggravated burglary and rape, I convict you and sentence you to 9 years' imprisonment with effect from 12 July 2013 …".

Discussion

In Braslin andCowen v Tasmania [2010] TASCCA 1 at [31]–[34], Porter J said of the approach of this Court to sentencing appeals:
"31      For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. 'The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.'
32        In Dinsdale v R (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:
'The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.' [References omitted]
33        Later, in Wong v R (above) at [58] Gaudron, Gummow and Hayne JJ said:
'Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'
34        In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: 'inadequacy or excess is, or is not, plainly apparent'. …".
To my mind, in the present case, for the reasons that follow, excess is plainly apparent.
It is conceded by Ms Jago SC, counsel for the appellant, that this rape should attract a sentence at the highest end of the appropriate range for the crime. I accept the submission of Ms Mason, counsel for the State, that this was an horrendous crime and that the complainant suffered, in effect, the loss of enjoyment of the remainder of her life.
However I accept Ms Jago's submission that a review of sentences imposed for a single count of rape, even in circumstances where it is accompanied by an additional crime such as aggravated burglary, demonstrates that sentences in the order of five years are at the upper end of the sentencing range. The table of sentences attached to the written submissions filed on behalf of the appellant is attached to these reasons (Annexure A).
Ms Mason did not refer the Court to any comparable sentence that would justify a head sentence of nine years' imprisonment.
My own research has failed to reveal a sentence imposed for a single count of rape anywhere in the vicinity of nine years' imprisonment.
I also accept Ms Jago's submission that if one looks at sentences for other crimes of a sexual nature, for example, maintaining a sexual relationship with a young person under the age of 17 years, where numerous acts of rape are committed and where this Court has recognised, as a matter of principle, that the offender should suffer the same penalty as would have been imposed if the individual sexual acts constituting the crime had been charged as separate crimes, sentences of nine years' imprisonment or greater are still not common.
I do not agree that the learned Chief Justice erred in any way by ordering that six months only of the 12 months' suspended sentence he activated at the same time as sentencing the appellant for rape and aggravated burglary was to be served concurrently with the sentence of nine years imposed for the aggravated burglary and rape. Nor do I accept that the activation of the entirety of the 12-month suspended sentence was excessive and unwarranted. To my mind there was nothing wrong with that approach. The real question is whether the head sentence was appropriate.
In my view the sentence of nine years' imprisonment for aggravated burglary and rape was so far beyond the range of sentences for similar single counts of rape, even when coupled with the crime of aggravated burglary, that excess is "plainly apparent". This is particularly so when it is remembered that the crime of aggravated burglary in this case was for the specific purpose of committing the crime of rape, so that there is a substantial degree of overlap between the criminality involved in each of those crimes.
It follows that I would allow the appeal and quash the sentence of nine years' imprisonment. I would substitute a sentence of six years' imprisonment with a non-parole period of four years. I would not disturb the order that six months of the suspended sentence activated by the learned Chief Justice be served concurrently with the sentence of six years I would impose for the aggravated burglary and rape.

Annexure A

Date

Name

Crime

Sentence

5-Mar- 08

HANNAN, BRETT JAMES

Rape x 2

Head: 4 years 3 months, Parole: after 2

years 3 months

8-Aug-

COOK, BARRY

Aggravated

assault

Head: 5 years, Parole: after 3 years and

Rape x 2 +

Attempted rape

Assault x 2

JAMES AMBROSE

Indecent assault

6 months

Injury to property

Wounding

7-May- 09

RDP

Rape

Head: 3 years and 9 months, Parole after 2 years

5-Jun- 09

RAINBIRD, PHILLIP

Rape

Head: 4 years and 6 months, Parole: after 2 years and 3 months

18-Jun-

B C

Indecent assault x 2

Unlawful Sexual Intercourse Maintaining

sexual relationship with young person

Rape

Head: 6 years, Parole after 3 years 6 months

22-Jul-

PRASAD, ARVIND RAVINESH

Aggravated sexual assault

Rape

Head: 3 years, Parole: after 18 months

29-Jul-

DUNN, ERROL GEORGE

Rape

Head: 2 years, Parole: after 12 months

2-Sep- 09

ROWE, BRENDAN CRAIG

Indecent assault

Aggravated sexual assault

Rape

Head: 4 years and 6 months, Parole:

4-Sep- 09

MMP

Rape

Head: 3 years, Parole: after 18 months

12-Feb-

Aggravated burglary

Assault

Rape x 2

Head: 5 years, Parole: after 3 years

30-Apr-

svw

Rape x 3

Head: 3 years, Parole: after 18 months

24-May-

BRAIN, SAMUEL ROBERT

Rape

Head: 3 years, Parole: after 18 months

10-Jun-

FOX, MARK ANTHONY

Rape

Head: 3 years and 3 months, Parole: after 20 months

25-Jun-

K M

Rape x 2

Head: 4 years, Parole: after 2 years and 6 months

4-Aug- 10

BROOKS, JUSTIN JAMES THOMAS

Aggravated sexual assault

Rape

Head: 3 years, Parole: after 18 months

14-Feb-

M J K

Indecent assault

Attempted Rape

Head: 2 years, Parole: after 12 months

29-Jun-

Rape

Aggravated

sexual assault x 4

Head: 4 years and 6 months, Parole: after 2 years and 6 months

17-Apr-

B P A

Indecent assault

Rape

Head: 3 years, Parole: after 18 months

3-May- 12

Rape

Head: 9 months, Suspended sentence: 2 months activated, cumulative

5-Sep- 12

BWJK

Rape x 6

Aggravated assault

Aggravated

sexual assault x 2 Indecent assault x 3

Head: 4 years, Parole: after 2 years

13-Dec-

NMO

Indecent assault x 4

Maintaining sexual relationship with young person x 4

Attempted Rape

Aggravated

sexual assault x 2

Head: 9 years, Parole: after 4 years and 6 months

18-Dec-

Assault

Rape

Head: 3 years, Parole: after 18 months

19-Apr-

W D G

Rape

Producing child exploitation material

Armed robbery x 2

Head: 7 years and 6 months, Parole: after 4 years

11-Dec-

BALDOCK, PHILLIP KEVIN

Aggravated burglary

Rape

Head: 9 years, Parole: after 5 years and 6 months, Suspended sentence: 12 months activated, 6 months served concurrently

File No 1277/2013

PHILIP KEVIN BALDOCK v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
20 February 2015

The appellant pleaded guilty to rape and aggravated burglary. He was sentenced by the learned Chief Justice to imprisonment for nine years with a non-parole period of five years and six months. The sole ground of appeal is that the sentence was manifestly excessive. The crime committed by the appellant was an appalling one. It deserved a harsh sentence. However, for the reasons which follow, I have concluded that the sentence was manifestly excessive.
On 8 July 2013 the complainant, then aged 81, was at her home in South Burnie. She lived alone. She was inside preparing her dinner when she heard a noise in the rear porch. Using the stick she required to help her walk she went to investigate. She saw a man she did not know. It was the appellant. He told her he was looking for his dog. As she walked towards him to better understand what he was saying he slapped her face and pushed her to the floor of the porch, moving her stick out of her reach. He pulled off her trousers, incontinence pants and pad and shoes. He held her to the ground. He put his penis near her face and asked her to suck it. She did not do so. He then vaginally raped her. She tried to yell but he slapped her again and put his hand over her mouth. The rape was painful for her and she feared for her life. She cannot say how long the penetration continued although she later told the police it "felt like an eternity". Because semen was found on her clothing it can be inferred that the appellant ejaculated. After raping the complainant, the appellant left immediately. The complainant was unable to get up from the floor and could not reach her stick. Fortuitously, her son came to her home to visit at 6.40pm and found her, naked from the waist down and still lying on the porch floor.
The complainant was taken to hospital. A medical examination revealed a 1.5 centimetre fresh tear to the fold of skin at the edge of her vulva. Whilst the complainant recovered from her physical injury, the crime was extremely distressing for her. In consequence, she was understandably unwilling to return to the home in which she and her late husband and family had lived for over 40 years, and which, until then, carried happy memories. After a few days in hospital, alternative accommodation was found for her in a nursing home. She continued to experience nightmares and sleep disturbance for some time. The crime was also disturbing for her son, who found her, and for others in her family.
At the time, the appellant was 42. He was spoken to by the police at his home nearby within two hours of the crime, but lied to them. When forensic tests suggested his involvement he was interviewed four days later, on 12 July 2013. After initially denying his crimes he eventually admitted what he had done. He claimed to have a limited memory because of his intoxication. He had abused alcohol for more than 20 years. A psychologist's report indicated that he was of quite low intelligence, with problems with "executive function" possibly attributable to his alcohol use. He has no major mental illness. At age 5 he was removed from the care of his parents by child welfare authorities and he then lived in care or with foster parents. From his early twenties he has lived a solitary and itinerant life with limited employment. He had no convictions for sexual offences or violence, although he had many convictions commencing when he was 34 for crimes of dishonesty. He spent short periods in custody in 2005 and 2007. At the time of this crime he was subject to a sentence of 12 months' imprisonment imposed on 26 September 2011 and wholly suspended for two years. The sentence was imposed for 12 counts of burglary, 1 count of attempted burglary, 7 charges of trespass and 6 counts of stealing.
Rape is a grave crime. There are several features of the appellant's crime which make it a serious example. The learned sentencing judge was justified in referring to it as an atrocity. The complainant was an elderly, frail and vulnerable person. The crime was committed in her home. The appellant's conduct towards her was demeaning and humiliating. After the complainant was defiled, she was left in a helpless situation. The period after the crime must have been especially traumatic for her, not knowing whether she would be found or not. It was only good fortune which led to her discovery. The crime effectively ended the complainant's ability to live independently. The impact of the crime on her was an important sentencing consideration: Belbin v Bennett (2011) 218 A Crim R 42; [2011] TASSC 23, per Crawford CJ at [29]–[30]. All of the factors to which I have referred were aggravating matters, adding to the gravity of the crime and to the need for a harsh sentencing response. The crime called for a sentence which reflected a high level of punishment, denunciation and retribution, provided the victim with appropriate vindication, protected the public and marked, in a responsible way, the proper feelings of outrage the commission of such a crime would raise in the minds of the community: DPP v NOP [2011] TASCCA 15 at [41]. A crime of this nature ordinarily also requires a sentence which deters like conduct on the part of others, even for those without a record for similar offending: Bowden v The Queen [1968] Tas SR (NC) 15; Austin v The Queen [1971] Tas SR 227.
The grave nature of the appellant's crime is not to be understated. However there are a number of factors in this case which lead me to conclude, with respect, that the learned sentencing judge fell into error and imposed a sentence that was manifestly excessive. In Sentencing in Tasmania, 2nd ed, par11.409, Professor Warner noted that a single count of rape ordinarily attracts a sentence of imprisonment of three to four years, and that a sentence of five years or more is appropriate for serious cases. Her text was cited with approval by this Court in Director of Public Prosecutions v Farmer (2005) 157 A Crim R 150, per Slicer J at [7], and Blow J (as he then was) at [48]. According to the Sentencing Advisory Council Research Paper on Sex Offence Sentencing April 2013, between 2001 and 2011, 92% of sentences for a single count of rape were immediate custodial sentences. The minimum term for a single count of rape was 12 months' imprisonment and maximum five years' imprisonment. My researches have not disclosed a sentence for a single count that comes near the sentence imposed in this case. A few instances of comparable sentences to the one imposed can be found, but were imposed for offenders guilty of multiple counts often involving multiple victims and other aggravating factors. That is not to say however that the sentence for this crime must be within the range to which I have referred: Inkson v The Queen (1996) 6 Tas R 1 per Underwood J (as he then was) at 15. On this point I respectfully agree with the comments of Porter J in Groenewege v Tasmania [2013] TASCCA 7 at [48]–[50]. In R v Allen [1999] TASSC 112 at [14], Wright J observed that comparable cases are often useful only to a limited extent in order to obtain a broad sentencing range:
"Ever since Dowie v R [1989] TASSC 44; [1989] Tas R 167, I have maintained that whilst a sentencing judge should strive to achieve consistency in sentencing, this is not a process which involves the close comparison of one case with another to ensure that the new sentence being contemplated coincides closely with that passed on an earlier occasion by another judge. The facts and circumstances of one crime are rarely, if ever, identical to those of another. The injuries sustained by the victim of one crime of violence are usually very different from those sustained by another. The relationships between the victim and the offender are frequently different. The antecedents of the offenders are always different. I find that whilst the definition of a broad sentencing range will often be useful, any attempt to distil a tariff for a particular crime or a particular type of offender is usually illusory."
The majority of the High Court in Hili v The Queen (2010) 242 CLR 520 at [54] accepted that the proper use of past sentences was correctly identified by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [303]–[305] and said:
"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 in Hili). 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'." (Footnotes removed.)
This Court should not interfere just because it would have exercised the sentencing discretion in a manner different to the learned sentencing judge. Sentencing judges should be "accorded a wide measure of latitude": Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. McHugh J pointed out in Everett v The Queen (1994) 181 CLR 295 at 306 that:
"Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a Court of Criminal Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence."
In this case, however, manifest excess is plainly apparent: Dinsdale v The Queen (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. With appropriate allowance for the factors which make the appellant's crime a grave one, the sentence imposed is so inconsistent with sentences that have been imposed for a single count of rape in other cases that there must have been some misapplication of principle, even though it is not apparent from his Honour's sentencing remarks: Wong v The Queen (2001) 207 CLR 584 per Gaudron, Gummow and Hayne JJ, at 605. The injustice which would follow if the sentence were to be undisturbed is magnified by reference to two particular considerations. The first is that, although this was a bad case, some of the aggravating factors which would have put it in the very worst category of cases were not present. Some such factors are helpfully summarised in R v Billam [1986] 1 All ER 985. In this case there was little violence over and above the force necessary to commit the rape, no weapon was used, the offender had no previous convictions for rape or other serious offences of a violent or sexual kind, the victim was not subject to any other serious form of sexual indignity or perversion and the rape was not repeated or prolonged. Although, by his plea of guilty to aggravated burglary, the appellant accepted that he entered the victim's property intending to rape, there was little if any planning, and he was to be sentenced on the basis that he formed the intention impulsively as he walked past the property on his way home.
The learned sentencing judge said in his sentencing remarks that he took into account the appellant's confession to police and his plea of guilty. He was correct to do so. The statements of principle as to the mitigatory effect of a plea of guilty made by King CJ in R v Shannon (1979) 21 SASR 442 are regarded as correct statements of the law in Tasmania: refer Inkson v The Queen (above) per Underwood J at [18], and Hyland v The Queen [1996] TASCCA 144, per Cox CJ. In this case, the result of the appellant's plea and his co-operation with the police was that it was clear from an early stage that the victim would not need to give evidence. That was of importance in this case. Although the case against the appellant was supported by forensic evidence and seemed strong, particular weight should be ascribed to admissions and a plea of guilty in cases of sexual offences like this one because it avoids distress to victims. His Honour stated that "the sentence I will impose today will be significantly shorter that it would have been if she had needed to do that [give evidence]". It follows however that his Honour must have had in mind a head sentence significantly longer than the nine year term he imposed. That would have made the head sentence a very long one indeed for this crime. For similar reasons it was also relevant that the appellant agreed to the admission of prosecution evidence to resolve a disputed fact without calling the victim.
Counsel for the Crown correctly submitted that the appellant was to be sentenced not only for rape but for aggravated burglary. Aggravated burglary is itself a very serious crime: Wahl v State of Tasmania [2012] TASCCA 5. However, in this case both crimes involved the same criminal conduct. It would punish that same conduct twice to impose an aggregate sentence for entering the property with intent to rape, while treating the fact that the rape occurred in the victim's home as an aggravating factor for that crime.
The learned sentencing judge activated the 12-month suspended sentence which, by commission of these crimes, the appellant breached. No complaint is made about that order. However the appellant submits that the combined effect of the two sentencing orders makes the head sentence for aggravated burglary and rape manifestly excessive. I consider the head sentence to be manifestly excessive regardless of the issue relied upon by the appellant. I see no difficulty, in principle, with the approach his Honour took. Issues of totality were properly taken into account by ordering that the activated suspended sentence be served partly concurrently with the sentence under appeal. Such an order properly represented the appellant's "overall criminality": R v Gordon (1994) 71 A Crim R 459 at 466; Director of Public Prosecutions v Farmer (above) at [5].
In my view the single ground of appeal is made out. I would uphold the appeal. It falls to re-sentence the appellant. Taking into account all of the factors I have referred to I agree with Estcourt J that the appropriate sentence on the indictment is one of imprisonment for six years. I agree also that the appellant is not to be eligible for parole until he has served four years of that sentence, which is the minimum term I consider he should serve. The other sentencing orders made by the learned Chief Justice should not be disturbed.