Chatters v Tasmania

[2019] TASCCA 20

[2019] TASCCA 20

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

CITATION:              Chatters v Tasmania [2019] TASCCA 20

PARTIES:  CHATTERS, Heath Lance
  v
  STATE OF TASMANIA

FILE NO:  CCA 1998/2019
DELIVERED ON:  20 November 2019
DELIVERED AT:  Hobart
HEARING DATE:  15 November 2019
JUDGMENT OF:  Blow CJ, Pearce J, Martin AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Armed robbery, assault and rape – Female service station attendant robbed at knifepoint, deprived of liberty for three hours, and raped vaginally – Sentence of 10 years' imprisonment with non-parole period of 6 years not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  M Flanagan
           Respondent:  D G Coates SC
Solicitors:
           Appellant:  Ogilvie Jennings
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2019] TASCCA 20
Number of paragraphs:  67

Serial No 20/2019

File No CCA 1998/2019

HEATH LANCE CHATTERS v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
PEARCE J
MARTIN AJ
20 November 2019

Order of the Court (15 November 2019)

Appeal dismissed.

Serial No 20/2019

File No CCA 1998/2019

HEATH LANCE CHATTERS v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ

20 November 2019

1This is a sentencing appeal. The appellant pleaded guilty to a charge of armed robbery, two charges of assault, and one charge of rape. Brett J convicted him, imposed a global sentence of 10 years' imprisonment, and ordered that he not be eligible for parole until he had served 6 years of that sentence. The appellant contended that his sentence was manifestly excessive. Other grounds of appeal were abandoned.

2At the conclusion of the hearing, the Court dismissed the appeal, reserving its reasons for publication at a later date. My reasons accord with those stated by Martin AJ. I also agree with the comments of Pearce J.

File No CCA 1998/2019

HEATH LANCE CHATTERS v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
20 November 2019

3I agree with Martin AJ that, for the reasons his Honour gives, the appeal should be dismissed. The sentence imposed by the learned sentencing judge was not manifestly excessive. The appellant's criminal conduct, when viewed as a whole, was objectively grave and involved a very high level of criminal culpability. In my respectful view, a term of imprisonment for ten years, with eligibility for parole after six years, was well within the range of sentences reasonably and justly open to the sentencing judge.

4The appellant committed a knifepoint robbery of a female service station attendant, late at night and at closing time, when she was isolated and alone. He then forced her to go with him in his car and, over the course of about three hours, deprived her of her liberty in the most terrifying and demeaning way. During the period the complainant was subject to his will, either in the car or in the cabin to which he took her, the appellant threatened her life, threatened the lives of her children, partner and parents, ignored her obvious distress, taunted her and callously dismissed her numerous pleas for mercy. Finally he committed the ultimate act of degradation by forcing her to remove her clothes and raping her. His criminal conduct only ceased because the police were able to find the place to which he had taken the complainant and come to her rescue. The appellant was charged with abduction. The State accepted the plea of guilty to assault by deprivation of liberty because it accepted the difficulty in proving beyond reasonable doubt that the appellant intended to have sexual intercourse with the complainant at the time he first detained her against her will, although he later formed that intent. In this case, the difference involves little reduction in the level of culpability.

5There was a complete absence of remorse. There was little before the sentencing judge which indicated the likelihood of rehabilitation or reform. After entering pleas of guilty, the appellant's conduct of the proceedings disentitled him to any of the mitigation which would otherwise have arisen for him having pleaded guilty. He twice unsuccessfully applied to withdraw the pleas. He disputed the Crown facts by falsely claiming that the complainant joined in his dishonesty and consented to going with him. All of that caused considerable delay and led to lengthy further proceedings involving evidence and argument. He did not facilitate the course of justice and the result was that the complainant was required to recall, and give evidence and be cross-examined about, the acts to which she had been subjected, long after the event. The impact of the crimes on her, her husband and her children, was already profound, but her distress was thereby prolonged and exacerbated. The appellant's record, the nature of these crimes and the evidence before the sentencing judge about the appellant's personality disorder all pointed to him being a significant and continuing risk to the community. The crimes demanded a sentence which adequately addressed the primary sentencing aims of punishment, condemnation, deterrence, vindication of the victim and protection of the public.

File No CCA 1998/2019

HEATH CHATTERS v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

MARTIN AJ
20 November 2019

Introduction

6The appellant pleaded guilty to crimes of armed robbery, rape and two assaults, committed on 25 September 2015. After hearing evidence to resolve a dispute as to the factual basis upon which the appellant should be sentenced, Brett J imposed a single sentence of imprisonment for 10 years and ordered that the appellant be eligible for parole after serving 6 years. In addition, his Honour made an order requiring the appellant to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2005 for the maximum period of 15 years.

7The appellant appeals against the sentence on the sole ground that it is manifestly excessive.

8In addition to appealing against the sentence, the appellant also appealed against the decisions of Brett J and Porter AJ refusing applications by the appellant to withdraw his pleas of guilty, but that appeal was abandoned.

9At the conclusion of submissions the Court dismissed the appeal. I now set out my reasons for agreeing with that order.

Sentence - facts

10The events occurred on 25 September 2015. The factual basis upon which the appellant was to be sentenced was the subject of a dispute and the sentencing judge heard evidence, including from the victim and the appellant. His Honour accepted that the victim had provided "a truthful and reliable account of the relevant events", and rejected the appellant's evidence as to those events. There is no challenge to his Honour's decision in that regard, or to his findings as to the facts.

11The victim worked in a service station in Devonport. At about 9.55pm, when the victim's shift was coming to an end and she was preparing to close up, the appellant drove his car into the forecourt of the service station and parked beside a fuel pump. The appellant got out of his vehicle, opened the bonnet and appeared to give attention to the motor. After a few minutes he entered the premises and asked the victim for water. She directed him to an outside tap. The appellant went back to his car for a short time, after which he returned to the shop. By this time the victim had locked the door, but when she saw the appellant she unlocked it and let him in. She walked from behind the console area in order to find out what the appellant wanted, still holding some of the cash she had been counting.

12When the appellant entered the shop, he was holding the knife in his hand. The sentencing judge rejected the appellant's evidence that the knife was in his possession incidentally to the work he appeared to be undertaking on the car. His Honour was satisfied that the appellant armed himself with the knife "with the intention of using it as a weapon to threaten [the victim] and hence overbear any potential resistance from her".

13The appellant told the victim to give him all the money and went with the victim behind the console where she handed him all the cash that was sitting on the counter. By this time the appellant had pulled the hood of his jacket over his head in an attempt to hide his identity from cameras located within the store.

14Throughout these events the appellant was holding the knife in his hand, making it clearly visible to the victim. He told the victim she must do as he said or he would slit her throat.

15The appellant's actions to this point constituted the crime of armed robbery.

16After taking possession of the cash, at knife point the appellant forced the victim to get into his car and drove away from the service station. For some time the appellant drove around the streets of Devonport, apparently looking for a caravan park in which he had rented a cabin. The victim pleaded with him to allow her to go home and told him she had children. The appellant refused, but said he would take her home unharmed if she did as he asked.

17The victim had pressed a duress alarm which she believed would alert police. However, the appellant drove back past the service station and said "see, they don't care; they don't even know you're gone".

18The appellant's conduct in depriving the victim of her liberty constituted the first assault to which the appellant pleaded guilty.

19After reaching the caravan park, the appellant took the victim into a cabin and, for a lengthy period, engaged in conversation with her while he consumed alcohol and cannabis. He searched the victim's handbag and removed her Medicare card, bankcard and driver's licence. He said he could obtain every detail about her from her Medicare card. He pulled apart her mobile telephone.

20The conversation ranged from innocuous to threatening. The threats included shooting the victim's parents, and finding her children and partner. The appellant plainly implied that he would harm them.

21The victim attempted to persuade the appellant to free her and told him that he would have time to get away. He responded by saying he would drive her to a place where his friends would "have their way with" her because he had done the wrong thing by allowing her to see his face. When the victim raised her voice, the appellant told her to keep her voice down, because if anyone heard her he would slit her throat. The victim felt nauseous and vomited.

22In the hope that she would not upset the appellant and he would not harm her, the victim participated in conversation. However, after a significant period, the appellant told the victim to remove her clothes. In response to her pleading, the appellant told the victim to "shut up and stop whingeing". The victim removed her outer clothing and the appellant told her to go into the bedroom and remove the remainder of her clothing. Despite the victim's continual pleading that the appellant not go further, he said, "I'm going to show you no control", and dragged her by the hair into the bedroom. Under threat, the victim removed some of her additional clothing, and the appellant threw her onto the bed.

23The appellant's conduct in dragging the victim by the hair and throwing her onto the bed constituted the second assault to which the appellant pleaded guilty.

24After removing his underpants, the appellant kissed the victim in intimate areas and touched her in a sexual way. He demanded she perform oral sex on him and, when she refused, he scruffed her by the neck and told her either she would do it or he would anally rape her. The appellant then had vaginal sexual intercourse with the victim against her will for about five minutes.

25The sentencing judge found that in order to achieve the crime of rape, the appellant used some physical force and continued to threaten the victim. She was crying during the rape. The intercourse ceased only because police broke through the glass cabin door. When police announced their presence, the appellant said to the victim, "You fucking bitch." As police entered the cabin, the victim cried for help and crawled across the floor.

26The sentencing judge found that the period between the appellant's arrival at the service station, and the arrival of police at the cabin, was approximately three hours. In the following passages, his Honour accurately encapsulated the offending:

·    "It is difficult to imagine the sheer terror that [the victim] must have felt during these events, and during the time in the cabin in particular. You treated her in a cruel and degrading manner, you threatened her life on a number of occasions, you threatened the safety and welfare of her family, and your actions constitute criminal behaviour of the most serious kind. [The victim] had no reason to believe that you would not carry through with your threats."

·    "It is an aggravating factor that you targeted a woman who was vulnerable because she was working alone at night at a service station. You subjected her to an armed robbery, and then took her against her will from her place of employment. This was followed by a prolonged period of approximately three hours when you terrorised the young woman concerned, held her against her will and subjected her to threatening and degrading treatment. Your treatment of her culminated in rape. You initially used a weapon and then a combination of physical force and threats, including threats to slit her throat and harm her partner and children, in order to overbear her will, and overcome resistance from her."

27The sentencing judge found that the crimes had a very significant impact on the victim who had been diagnosed with post-traumatic stress disorder. At the time of sentencing on 9 November 2017, the victim was still undergoing psychological counselling and psychiatric treatment. The psychologist described her condition as chronic, noting that it was "causing significant distress and marked impairment in functioning". In victim impact statements the victim had described the "prolonged terror" she had experienced, and the ongoing impact of the crimes on her and her family. At that time she had not been able to return to work. She had found the drawn-out nature of the proceedings extremely difficult, and they had exacerbated the impact of the crimes upon her.

28As to the delay in resolution, the appellant made a significant contribution to the delay. The crimes having been committed on 25 September 2015, the trial was listed to commence on 30 August 2016. Eight days before the trial, the appellant's counsel indicated a satisfactory resolution of the matter and, on 30 August 2016, the appellant pleaded guilty. On 10 February 2017 the appellant applied to withdraw his plea of guilty, but that application was dismissed by Porter AJ on 30 March 2017. Reasons were published on 3 April 2017.

29The Crown statement of facts was published on 10 May 2017. Those facts were disputed by the appellant and, on 15 May 2017, the appellant foreshadowed an application to withdraw the pleas of guilty. The application was made on 17 May 2017. On that day the victim and a police officer gave evidence on the disputed facts hearing.

30The appellant and other witnesses gave evidence on 19 and 20 June 2017. Submissions were made on 28 June 2017 and the matter was adjourned to 16 August 2017 when Brett J refused the application to withdraw the pleas of guilty. Submissions as to sentence were heard on a later date.

31This outline of the history demonstrates the appellant's contribution to the significant delay that occurred after the appellant entered pleas of guilty on 30 August 2016. In addition, the appellant's conduct included advancing a case in support of his attempt to retract his pleas of guilty that was, to say the least, highly insulting to the victim.

32On 10 May 2017 the appellant appeared before the sentencing judge without legal representation. Initially the appellant informed the sentencing judge that he wished to be heard in connection with "the mitigation and stuff". His Honour first heard from the Crown with regard to the statement of facts and matters relevant to the seriousness of the offending.

33At the conclusion of the Crown's submissions, and having heard the Crown statement of facts, the appellant informed the sentencing judge that he wanted to "challenge the facts the prosecutor had put forward". He indicated he wished to challenge the facts "around the events on that night, sustaining the robbery, the charge as well as the rape charge". The appellant went on to say that he did not rob or rape anyone.

34The appellant then orally provided a version of events to the sentencing judge. The Crown submissions accurately summarised that version as follows:

"On 10 May 2017 the appellant disputed the facts, he claimed:

(a)     'I did not rob anyone and I did not rape anyone' (transcript 10 May 2017 p26).

(b)     The victim 'actually offered to lend me money until the next morning ...' (transcript 10 May 2017 p27).

(c)     He accepted he had a knife in his hands but claimed it was because he had been using it to fix his car (transcript 10 May 2017 p27).

(d)     They went to his caravan because his car was overheating (transcript 10 May 2017 at p27). He claimed the victim went with him willingly, stating '[s]he could have left at any time, no doors were locked.' He said he offered to cook her a meal and give her Travacalm (transcript 10 May 2017 p28).

(e)     That he 'never had sex with her. She got on top of me and had sex with me, so — I didn't' force her to get on top of me.' (transcript 10 May p28).

(f)    That when police arrived she 'jumped up into the corner of the room and screamed at them and told them to get away from her'. He claimed the victim 'screamed at the police to fuck off' (transcript 10 May 2017 p28).

(g)     That the victim 'went to the woman police officer and walked past me. She didn't crawl out of the room or anything like that. Initially I tried to get up and open the door. She pressed me to the bed and said, "No, don't answer the door. I just want to stay here with you".' (transcript 10 May 2017 p29).

(h)     That the victim 'was not scared of me at all. She challenged me in every' way ...' (transcript 10 May 2017 p29)."

35It was against this background that the appellant was subsequently represented and pursued his second application to change his pleas. As a consequence, the Crown was required to call the victim who gave evidence on 17 May 2017. The victim was required to give oral evidence concerning the entire events, and she was cross-examined at length concerning conversations, particularly in the cabin. During cross-examination it was put to the victim that the appellant got into bed first and, subsequently, the victim entered the bedroom and removed her clothes. Counsel put to the victim that she suggested the appellant get on top of her, and when he said "No, I'm fucked", she climbed on top of him. It was put directly to the victim that she kissed the appellant and that the act of sexual intercourse was consensual. Further, it was suggested that when there was a bang on the door, the victim was on top of the appellant engaging in intercourse.

36All of these propositions were denied.

37The appellant subsequently gave evidence which was generally consistent with the assertions he had made to the sentencing judge on 10 May 2017, and with the version put to the victim during cross-examination.

38The appellant is not to be punished for exercising his right to seek to change his pleas of guilty. Nor is he to be punished for the cross-examination of the victim and giving evidence in support of his application to change his pleas of guilty. These matters are not to be used as aggravating factors. Similarly, any distress caused to the victim cannot be taken into account as an aggravating factor.[1] However, the appellant's conduct in this regard clearly demonstrated a total absence of remorse and a failure to accept responsibility for the crimes. The appellant did not assist by facilitating the course of justice. Although the pleas of guilty saved the State the expense and inconvenience of a full trial before a jury, in lengthy proceedings the victim had been required to give evidence, together with other witnesses. This is one of those cases where the offender should not receive any reduction in sentence by reason of his pleas of guilty.

[1]   Neill-Fraser v Tasmania [2012] TASCCA 2 at [210]-[212].

39As to matters personal to the appellant, at the time of sentencing he was aged 42. He suffered physical abuse as a child at the hands of his alcoholic father and commenced living on the street at the age of 13. The appellant has a lengthy history of alcohol and drug abuse. The author of a forensic mental health report concluded that the appellant was not suffering from mental illness, but diagnosed an Antisocial Personality Disorder. The author explained that this disorder "refers to a personality type which underpins a behavioural syndrome in which there is a gross disparity between an individual's behaviour and accepted social norms." The characteristics which are usually associated with the disorder include deceit, lack of remorse and indifference to or rationalisation of having hurt, mistreated or stolen from others. In the view of the author, the various factors placed the appellant "in a group of individuals who pose a high risk for concern for future episodes of reactive aggression in the short to medium term".

40The appellant has a lengthy criminal history, commencing with dishonesty offences at the age of 15. The sentencing judge noted that since then, the appellant had offended against the law on a regular basis, committing a variety of offences, including a number involving violence. His Honour summarised the offending that was of direct relevance to the crimes under consideration:

"In 2002, you were sentenced by this Court to a period of imprisonment for attempting to assault a teenage girl and assaulting a young woman. These crimes were committed in the context of you attempting to separately force each female into a car which had earlier been stolen by you. You seem to have selected your victims at random. You were unsuccessful in forcing either into the car, and both escaped. While you are not to be sentenced on your record there are aspects of your conduct on that occasion which seem to have been repeated by you during the commission by you of the crimes for which you are now to be sentenced.

In 2006, you were sentenced by the District Court in Queensland to imprisonment for five years, partially suspended, for crimes which included robbery with actual violence and assault. The suspended period of the sentence was removed after you committed further offences. It is apparent that since your release from prison on that occasion, you have continued to break the law and have been sentenced to further periods of imprisonment. According to information presented to me, prior to committing the crimes with which I am now dealing, you were last released from prison, after serving a sentence in Queensland in early 2015."

41The sentencing judge accepted that during the offending the appellant was affected by drugs and alcohol, but correctly observed that the influence of drugs and alcohol did not mitigate the seriousness of the appellant's conduct. His Honour found that there was no evidence of remorse and that, by reason of the unsuccessful dispute of facts and attempts to resile from the pleas of guilty, which meant that the victim was required to give evidence and be subjected to cross-examination, the appellant was entitled to "little if any mitigatory benefit" from the pleas of guilty. His Honour also found that the appellant possessed "little, if any, insight into the seriousness" of his conduct.

42The appellant engaged in criminal conduct of an extremely serious nature. His criminal conduct was prolonged and only came to an end because police intervened. The sentencing judge had regard to totality, but correctly observed that the sentence "must emphasise the need for general and personal deterrence, denunciation of [the] conduct and vindication of the victim". His Honour was of the view that there was no evidence of a desire to rehabilitate, and that any attempt at rehabilitation, "at least in the short term", is unlikely to be successful. There is no challenge to any of those observations or findings.

43In written submissions, counsel for the appellant advanced the following contentions:

·"12     It is submitted that the criminality in this case is dominated by the rape. The assaults and armed robbery, whilst serious, formed much smaller parts of the overall criminality and were effectively done for the purpose of effecting the rape."

·    "13    The Court is invited to view the overall offending as one episode that is comprised mainly of a rape as opposed to two episodes, being an armed robbery followed by a rape." The victim's first victim impact statement uses phrases which speak of the rape and "the night of the rape" which indicates "the victim views the entire sequence of events as an episode of rape".

·    There is a lack of certain aggravating features that accompany other crimes. The absence of these aggravating features "makes this offending something other than 'the worst of its kind' thereby making a sentence which is substantially bigger than those given to serious acts of violence and rape plainly unjust."

·    While the appellant has a record of offending including violence and dishonesty, and the record is "somewhat relevant to the offending", he has never previously been convicted of an offence of a sexual nature. For this reason, "to some extent, the offending was out of character for the appellant".

44Although the appellant's criminal conduct was an ongoing episode which lasted approximately three hours, it was not "one episode … comprised mainly of a rape". The appellant armed himself with a knife intending to use it to rob the victim who was alone and vulnerable. He presented the knife to the victim and threatened to slit her throat if she did not comply with his instruction. Having completed the armed robbery at knife-point, the appellant deprived the victim of her liberty over a lengthy period, after which he threatened the victim, applied physical violence to her and raped her.

45The characterisation which the appellant's counsel seeks to attribute to the appellant's overall conduct does not reflect the reality and gravity of that conduct which was ongoing over a lengthy period. It involved the commission of a number of serious crimes which culminated in the crime of rape. It is not correct to view the conduct as "mainly" rape in conjunction with other "much smaller parts of the overall criminality".

46As to the contention that there was a lack of "certain aggravating features", it is correct that the appellant's offending is not in the worst category of offending for offences of this type. It is possible to imagine additional aggravating features which would elevate the offending into the worst category. However, as the facts outlined by the sentencing judge and in these reasons amply demonstrate, the total criminal conduct of the appellant was, objectively, in the upper range of seriousness and had significant impacts upon the victim and others closely associated with the victim. Those impacts are ongoing.

47The written submissions contend that the victim "was not subject to any serious sexual indignity or perversion …". In oral submissions, counsel for the appellant explained that the submission was not intended to suggest that serious sexual indignity and perversion is not inherent in the crime of rape. Counsel meant to convey that there was an absence of serious sexual indignity or perversion over and above the indignity and perversion inherent in the crime of rape.

48It is important to state plainly that every sexual assault subjects the victim to a "serious sexual indignity" and "perversion". As with every crime, there is a scale of seriousness attaching to sexual assaults. A rape of the type committed by the appellant is at the higher end of the scale of seriousness and, necessarily, involved sexual indignity of the grossest kind. Such a crime also necessarily involves perversion.

49The written submissions contend that there did not appear to be any premeditation for the offending. The submissions assert that the appellant was with the victim for "an extended period before any criminal conduct occurred", and "there is nothing to suggest that the offending was not impulsive". Counsel explained in oral submissions that he was referring to the entirety of the offending.

50There is no evidence from which a conclusion could be drawn on the balance of probabilities that the offending was "impulsive". Similarly, there is no evidence from which an inference could be drawn beyond reasonable doubt that, in advance of driving into the service station, the appellant planned to carry out an armed robbery.

51As to the rape, the Crown accepts that there is no evidence from which it could be inferred beyond reasonable doubt that the appellant formed an intention to sexually assault the victim at the time he forced her into his vehicle. There is simply no evidence as to when the appellant decided to sexually assault the victim.

52However, it does not follow that the rape was "impulsive". The appellant chose to force the victim into his vehicle, rather than escape with the proceeds of the robbery. He chose to drive around for a significant period and to take her to the cabin in the caravan park. It would defy common sense to suggest that, somewhere in that journey to the cabin door, the appellant did not form an intention to sexually assault the victim. Even if the intent was formed after entry into the cabin, it is misleading to describe the rape as "impulsive".

53As to the submission that, to "some extent", the offending was "out of character for the appellant", in my view this submission is devoid of merit. It misconceives the relevance of the prior offending and the nature of the current offending. The appellant has demonstrated a propensity for committing crimes involving violence, including armed robbery. His current crimes are crimes of violence. In addition, the appellant has demonstrated a propensity for committing crimes of violence against female persons. On two prior occasions, the appellant attempted to force young women into a vehicle. The similarity between those offences and the forcing of the victim into the vehicle is obvious.

Sentencing range

54In support of the submission that the total sentence of 10 years is manifestly excessive, the appellant produced a table of sentences for crimes of rape imposed between December 2015 and October 2019. Some of the offending was accompanied by other offending such as, abduction, wounding, aggravated burglary and assault. The maximum sentence imposed during that period was imprisonment for eight years.

55The Crown referred to Sentencing in Tasmania, 2^nd ed, The Federation Press 2002, Sydney, at 307 where Professor Kate Warner records the range of sentences for 27 cases of single counts of rape between 1990 and 2000. The sentences ranged from six months to eight years. In addition, the Crown referred to sentences for rape since 2006 which did not involve a relationship between the accused and the victim. The sentences ranged from three to eight years. The Crown submitted that the circumstances under consideration required a sentence greater than the ordinary range.

56The relevance of sentences imposed in previous cases was explained in the majority judgment of French CJ and Gummow, Hayne, Crennan, Keifel and Bell JJ in Hili v The Queen [2010] HCA 45, 242 CLR 520 at 537 [54] and [55]:

"54     In Director of Public Prosecutions (Cth) v De La Rosa , 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:

'[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.'"[Footnotes omitted][2]

[2]   See also McQueen v Kilic [2016] HCA 48, 259 CLR 256 at 267 [22].

57In addition, it was accepted by both counsel that there is no previous case which involved offending comparable to the appellant's total criminal conduct.

Principles

58Counsel for the appellant was unable to identify any specific error in the approach of the sentencing judge to the task of arriving at an appropriate sentence for the total criminal conduct. In these circumstances, this Court can only interfere if a sentence is "unreasonable or plainly unjust". The relevant principles were helpfully identified by Pearce J, with whom Blow CJ and Porter J agreed, in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 at [8]:

"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."

Discussion

59The appellant was to be sentenced for his total criminal conduct. In that process, the sentencing judge was required to consider the principle of totality, and his Honour specifically referred to that principle.

60The crime of armed robbery was not minor criminal conduct. It was a particularly serious crime. This Court has recently emphasised the prevalence of the crime and, in the sentencing context, the importance of general and personal deterrence, together with denunciation.[3] There is no tariff for the crime of armed robbery, but standing on its own the appellant's criminal conduct in robbing the victim at knife-point would have warranted a significant term of imprisonment.

[3]   Director of Public Prosecutions v Fletcher-Jones [2018] TASCCA 9 at [24].

61After committing the armed robbery, at knife-point the appellant deprived the victim of her liberty for a significant period and behaved in a way which, undoubtedly, terrified the victim. That terror continued in the cabin where the appellant callously raped the victim. Standing alone the assault by way of deprivation was a serious example of that crime.

62As the sentencing judge observed in conclusion, "the crimes represented a prolonged course of conduct of the most serious nature against an individual victim". His Honour continued:

"The sentence must emphasise the need for general and personal deterrence, denunciation of your conduct and vindication of the victim".

63The appellant's mental state demonstrates that he remains a significant risk to the community. Protection of the community was particularly important in the exercise of the sentencing discretion.

64In my opinion, the total sentence of 10 years' imprisonment was not only within the range of the sentencing discretion, it was an appropriate sentence having regard to the total criminal offending and matters personal to the appellant.

65Further in view of the total criminal conduct, and the appellant's prior offending, lack of remorse and mental state, in my view the non-parole period of six years was generous to the appellant. The material before the sentencing judge discloses that the appellant's prospects of rehabilitation are dismal. These matters, coupled with the nature and extent of the criminal conduct, would justify a longer non-parole period.

66Finally, the maximum reporting order is appropriate.

67For these reasons I agreed that the appeal should be dismissed.