Commonwealth of Australia v Beattie

[1981] FCA 88

Re: ROBERT GLENN SCHUMACHER
And: THE QUEEN
No. ACT G2 of 1980
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox A.C.J.
Blackburn J.
Sheppard J.

CATCHWORDS

Criminal Law - Rape and Buggery - Appeal Against Sentence - Evidence Which Can Be Looked At - Mitigating Circumstances - Relevance of Plea of Guilty

HEARING

CANBERRA

#DATE 25:6:1981

ORDER

1. The appeal be allowed.

2. A sentence of 7 1/2 years imprisonment for the crime of rape be substituted.

3. The sentence for the crime of buggery be confirmed.

4. The sentences be served concurrently.

5. Non-parole period of 3 1/2 years is fixed.

JUDGE1

This is an appeal against the severity of a sentence imposed by the Supreme Court of the Australian Capital Territory. The appellant pleaded guilty in the Court of Petty Sessions and before the Supreme Court to a charge of rape and a charge of buggery, the offences being committed against the same person on the same occasion. The learned judge imposed a sentence of imprisonment of 9 1/2 years on the charge of rape, and one of 5 years on the charge of buggery, the sentences to be served concurrently, with a non-parole period of 5 years. Section 79 of the Crimes Act 1900 of the State of New South Wales, in its application to the Territory, provides that the minimum term of imprisonment for the crime of buggery (to which consent is not a defence) is to be 5 years. This is in strange contradistinction to the absence of any prescribed minimum for rape (the New South Wales section was amended in 1924 to alter the penalty for buggery to a maximum of 14 years imprisonment).

The fact that the accused pleaded guilty had the consequence that the evidence against him relative to sentence only comprised his confession and admissions made on his behalf. Because he was shown the statement of the prosecutrix and invited to comment on it, and was fairly free and frank in doing so, most of what she said in her statement could be taken into account. His counsel agreed, subject to qualifications, that the statement of the responsible police officer was correct, and it included an important part of the prosecutrix' statement. No oral evidence as to the circumstances of the offence was called.

The offences were committed in the early hours of 25 September 1979. The accused was then 24, all but one day, and was married with two children. His victim was 18 years of age. The accused had had an unsettled employment history, involving a number of changes in his place of living. After he had been in his first position for some months, he misappropriated $200 of the funds of the Bank in New South Wales for which he was working. He made restitution, and the matter was not reported to the police. Later, in 1973, he was convicted of a number of offences of dishonesty, and released on a recognizance. In 1978 he was convicted in the Canberra Court of Petty Sessions on several counts of larceny as a servant, and was fined and ordered to pay compensation. He had been married on 2 October 1976.

In February 1978 the accused obtained employment with a firm of car mechanics and on 19 September 1979, that is to say after a continuous period of employment with the one employer for about 18 months, was promoted to manager of their Fyshwick branch. Apparently this employment suited him and his employers were well satisfied with his performance. He was thrilled with his promotion and on the night in question was celebrating with his superior from Sydney in the Wellington Hotel, Canberra. It was there that he met the prosecutrix for the first time, in what circumstances is not clear. She drank with his boss and himself, he played pool and had a drink with another man, and then he, the young woman and another person had a few drinks and he again played pool. Others came and went from time to time and he and the prosecutrix stayed on until closing time. Four of them then travelled in his car to a place called the Roxy, where they stayed for a short time before going to a discotheque at Dickson, only to find it shut. The prosecutrix did the driving because, although she only held a driver's permit, she felt she was the only one sober enough to do so. They then went to another place where they had a few drinks. They left, and, after filling up with petrol at a service station, returned to the Wellington. Two of the party were dropped there, leaving the young woman and himself. It is not clear just how much in all either of them had had to drink, but at the Wellington hotel the prosecutrix offered to drive the accused north to his home in Canberra and then to get a taxi south to her own home in Queanbeyan. The accused accepted her invitation to drive but said that they would go to her home first and he would then drive himself home. The time was about 2 or 2.30 am. They set out, with the prosecutrix driving, and when they were well on the way to Queanbeyan she repeated her earlier suggestion that she drive him home, and, of course, leave his car there. The accused acquiesced, and they started to drive back. They took a slightly indirect route, off the main Canberra-Queanbeyan road. A police car was soon observed in front of them, going their way, and they changed course. The accused put his head on the young woman's lap, but she said this interfered with her driving and he took over. The prosecutrix then complained of his manner of driving, and he stopped the car, apologised, and asked her if she would like to drive, but she declined. The accused then drove along the road running around the airport, which was not the direct route to Queanbeyan and was away from his home. He turned off on to a minor road or track leading to the memorial of the 1940 air disaster in Canberra. It is an isolated area surrounded by fairly heavy timber growth, and one which is quite often referred to in the Canberra courts as the location of sexual offences. The prosecutrix said she did not want to go to the memorial, but wished to go home. He continued driving to the memorial, but once, when the road turned sharply, he temporarily lost control of the car, which spun sideways along the road. He says that he was "pretty well affected" by liquor at this stage.

The accused reached the memorial, and stopped the car in the clearing adjacent to it. He made advances, which she firmly and unequivocally resisted. He became more insistent. She got out of the car and began walking to the major road from which they had come. He chased her, caught up, and seized her arm. She broke free and ran back to the car, apparently with a view to sounding the horn. The driver's door was stuck, and he caught up again, this time seizing her by the shoulders. She asked him what he was doing and he said he would show her. He pushed her to the back of the car, but she again broke away, and this time she managed to get into the car and sound the horn, with a view to seeking assistance, but this did not eventuate. He pulled her out of the car, possibly tearing some of her clothing in the process. He shoved her a short distance into the bush. She was screaming and calling on him to stop. She said in her statement that she was at this time getting hysterical. The accused told her to shut up, and when she didn't slapped her on the face several times. She again appealed to him to stop and he said "Get your clothes off or I will kill you". She undressed in part, but he insisted upon her taking all her clothes off. He completely undressed, and told her to get down on her knees. She has said that she thought he wanted "oral sex" and so said to him "I cannot, look at my mouth". He told her to turn around and put her hands on the gravel, and she did so. He inserted his penis into her vagina from the rear. At the same time he reached around and squeezed her right breast tightly. He moved his penis in and out of her vagina seven or eight times and then said "Lie flat on the ground". She lay flat, face down and, anticipating his intentions, said "Please Bobby, not that". He then inserted his penis into her anus gradually, but this caused her pain. She asked him to desist because it was hurting but he gained full penetration and after a while ejaculated. For reasons not established she thought at about this time that he was going to kill her. Her voice was failing and she became light-headed. She managed to hold off his arm with hers while she turned on to her side. His hold broke and she lay limp. She says in her statement that he hit her over the back of the head with his fists and that one of the blows caused her head to hit a rock, but he does not admit this. She then felt a "very severe" blow to the left side of the neck and thinks she may have passed out for a while. When she next had a realisation of events, he was asking her whether she would like him to take her home. He assumed her agreement and told her to go and get her clothes on. He also dressed, except for a sock neither of them could find. They got into the car and drove down on to the road. When they reached it he started to turn left but she grabbed the steering wheel and turned it to the right, saying "You are going the wrong way". I discussed this piece of evidence with counsel and from our own knowledge of the road layout believe she may have been wrong in her directions. In any event he is reported as saying "I am sorry, I just do not know where I am". Then, as she says "he talked a bit and apologised for what had happened and said he did not know what had come over him". There was further conversation and after a while he asked her to get out, which she did. A few minutes later he returned, picked her up and, his offer to drive her to Queanbeyan hospital being declined, then drove her home. There was further conversation on the way. He said to the police that he had felt "pretty bad about what I had done". At the end of his statement to them he said "I'm sorry for what I have done to the girl. All I can say it was stupid for me to do what I did."

She immediately went to the Queanbeyan hospital. He returned home. Later that morning she was examined at the Royal Canberra Hospital. I set out the more material part of the doctor's report:

"At interview, Miss FROST was showing signs of distress in that she was near tears and had fine tremour of her hands and some tremour in her voice. Her speech was slightly hoarse due to a sore throat but she was well oriented as to time and place, co-operative and of approximately her stated age of 18 years. She was wearing a Queanbeyan hospital patient identification tag on her right wrist. She stated that she had showered and washed, urinated and had had several bowel motions since the alleged assault and had also changed her clothes. On examination at Royal Canberra Hospital, I found the following injuries:- a. A 2 cm x 1 cm swelling of the scalp over the left occiput. b. Her right eye had bruising of both lids, the lower more than the upper with a small laceration at the outer corner. c. There was a laceration of her right forehead just below the hairline in the centre of a contusion 1.5cm x 1cm. d. Her lower lip was swollen and bruised with fine lacerations on the inner surface corresponding with her lower front teeth. e. Bruising of the right lower jaw from just below the lip to the jaw line 3.5cm x 1.5cm in area. f. There was pain in the left temporo-mandibicular joint on movement of the jaw and tenderness to touch over the joint. g. There were 12 definite and several less defined scratches on the front of her neck each approximately 1cm long. These were arranged in a "V" shaped pattern from the centre line over her cricoid cartilage (Adam's apple) to either side of the midline higher up the neck. The skin over her cricoid cartilage (more on the right than the left) had early bruising. h. Her right breast had bruising of the lower medial quadrant and swelling and bruising of the nipple. i. On the abdomen there were minor scratches of the left lower quadrant and an abraded area over the right anterior, superior iliac spine. j. On the right front thigh there were two linear scratches 10 and 11 cms long extending downward and outward from the midline. k. On the right lower leg just above the outer ankle, there was bruising with abrasion. l. There was a 2cm diameter bruise of the dorsum of the right foot. m. On the front of the mid right thigh there was an area of bruising 8cms long by 3cms wide. n. Examination of the vulva showed a small laceration and bruising of the left labia majora (external lip) and that the vagina was non virgo intacta. o. Examination of the anus revealed swelling and bruising of the mucous membrane and two lacerations of the membrane; one in the midline posteriorly and the other midway round the right side. Proctoscope examination showed inflamation of the anterior wall approximately 2 cms from the external margin."

Although the injuries were extensive, each was relatively minor. There was fortunately none of lasting consequence, unless it was to the mental or nervous welfare of the prosecutrix. Her mental distress did indeed continue for some time, and she had to take holidays and treatment to help her recover.

The accused was arrested on the following day (26th) and after an early denial, made a full confessional statement to the police.

A psychiatrist was called on behalf of the accused. He said, among other things, that the accused's mental status and emotional make up were within normal limits, that he does not have the personality of a sexual psycopath, and that it was unlikely that he would again commit a violent sexual offence. He has no record of violent offences. The psychiatrist pictured the occasion as follows:

"He is buoyed up by his promotion and disinhibited by alcohol. I can imagine he is beginning to feel overall successful and this begins to include the sexual area. The girl is not so inclined and her refusal bruises his ego. His excitation turns to aggression but vaginal intercourse without co-operation frustrates and humiliates him more. The anal assault appears to be an unconscious attempt to humiliate in return. His reactions to the girl after the assault is according to both their stories one of anger and rejection giving way to guilt, shame and concern."

Character evidence was called for the accused, but it does not assist particularly. His wife gave evidence for him; she remains loyal. The social worker reports that the accused appears to have low "self esteem", has a low ability to tolerate threats to his self esteem and is capable of reacting to such threats with violence. A part of the report reads as follows:

"It is considered likely that Robert was elated during that evening by his promotion and by what he considered to be the advances of the complainant towards him. These factors combined with the disinhibiting effect of alcohol are considered to have prompted Robert to make sexual advances toward the complainant. It is considered that her refusal to his advances constituted a severe blow to his elated self esteem with a resultant anger in Robert which brought on his violent assault upon her."

The report says that he is in need of an extended period of counselling, and this suggests a relatively long period of parole. It is said to be likely that he will find gaol a very traumatic experience. The accused spent a total of two weeks in custody before being sentenced.

In the narration of the facts by the learned judge there is one matter of some importance which troubles me. Following the account given by the prosecution he said, in relation to the events at the air disaster memorial after intercourse had taken place: "At or shortly after this time he seized her by the throat and pressed his hands into the front of her throat." This passage, or something to like effect, apparently appeared in her statement to the police, which is not itself in evidence. When shown her statement the accused said he did not remember doing what was stated. His counsel at first said he agreed with the prosecutrix' statement, which he had presumably seen earlier. At a later stage he drew attention to a number of statements, made in the course of several consecutive questions, in which the accused said in relation to passages of the prosecutrix' statement, either that he did not remember or that he denied what was alleged. The learned judge, without correction by counsel, and apparently with his acquiescence, treated only two denials in the answer to one question (Q.41) as not conceded. It was in the answer to Q.39, to which counsel had drawn attention, that the accused said he couldn't remember the event mentioned. My conclusion is that the particular matter could not be used against the accused.

There is always a difficulty in putting the court in possession of a fair and adequate account of the facts upon a plea of guilty. I would not want to encourage a system in which an accused person is handed a lengthy statement made by someone else, and asked whether or not he agrees with it, with a view to the result being presented as evidence. If counsel make admissions it must be on the clear instructions of their clients, and in doubtful or formerly disputed areas, any admission must be clear and unequivocal. If the prosecution has difficulty in getting an adequate statement of the facts before the court either because of disagreement or absence of assent, they will normally have to call witnesses. Material facts going to sentence are important, particularly where the crime is a serious one. The learned judge in the present case was at pains to see that only proper material was taken into account, and I regret that, due to no oversight of his, the particular piece of evidence was wrongly received.

The offence was a serious one. Taking a very general view, only the most serious offences of the nature in question are customarily visited with a sentence of 10 years or more. I find that I discussed at some length in R v Dixon (1975) 22 ACTR 13 many of the considerations affecting sentencing in rape cases. In that case I imposed a sentence of 6 1/2 years, with a non-parole period of 3 years. The learned judge in this case thought that 9 1/2 years was appropriate. He regarded this as "severe". His exercise of discretion should not be interfered with lightly. I believe nevertheless that the sentence should be reduced. I have already mentioned a factual element, which should not have been admitted into consideration, and may possibly (and reasonably) have had some influence in his Honour's decision.

There are two further elements, both of which his Honour had in mind but which I feel were not given what I would regard as adequate weight. One relates to the friendly association between the accused and the prosecutrix during the evening, over a period of nine hours or more. During much of that period they drank together, and moved from place to place, sometimes in the company of others. They had not previously known each other. She was a young woman, apparently lonely enough to take up an association in a hotel with a strange man. Whether she appreciated it or not, he was elated, and was celebrating. In the small hours of the morning, when she realised he had had too much to drink, she drove with him alone in his car. When most of the way to her home, they turned back at her suggestion to travel to his home on the other side of Canberra, and they then travelled by a less populated route. She does not appear to have protested when, changing course again, they took another route leading through relatively deserted country.

This is not to say that the circumstances gave him a licence to rape; what he did is inexcusable. It would not however be entirely unreasonable or totally contrary to human experience for him to expect that the young woman would be willing to have sexual intercourse. I share the learned judge's aversion to stigmatising the moral behaviour of an absent party, and particularly of an unrepresented prosecutrix, but I am looking at the proven facts and trying to establish whether there were or were not mitigating circumstances. It is plain that the accused's expectations were shattered and the young woman made her position abundantly plain. In the course of what happened he used, and threatened, violence and of such behaviour the court can only take on view. So far as concerns an assessment of the emotional basis of his actions, the summary versions given by the psychiatrist and the social worker, to which I have referred, are probably in this case a safer explanation than any the court might speculate on, although they are both probably influenced to some extent by self-serving statements made by him to them.

The next matter concerns the making of the plea of guilty, and the fact that it was at an early stage. The accused's full confession, combined with the evidence of injuries suffered, probably, but not necessarily, compelled the making of such a plea at some stage. There is the evidence that he apologised to the prosecutrix at the time for what he had done, and offered to take her to hospital to have her cuts and abrasions attended to. He said to the police (and others) that he was sorry for what he had done. His sorrow was doubtless compounded at that time by a realisation that his actions were likely to lead to a lengthy term of imprisonment. The matter of the plea of guilty was strongly pressed on the judge as a mitigating circumstance. In his reasons he said, without elaboration, that he had taken it into account.

The way in which such a plea should be treated was recently examined by a bench of five judges of the South Australian Supreme Court in R v Shannon (1979) 21 SASR 442, and, if one may say so, with respect, what was there said will provide a valuable guide to us all. Like nearly all aspects of sentencing, it is not possible to formulate comprehensive principles or state dogmatic rules. For myself, in the present case, I feel that not enough weight was given by the learned judge to the making of the plea by the accused. Although it is nowhere stated in the evidentiary material as a consideration in the mind of the accused, the effect of the plea was that the only evidence the prosecutrix might be called on to give would be to supplement what the prosecution could establish from the confession and other sources. The giving of evidence by a prosecutrix in a defended case can be, and often is, a distressing ordeal, in which her moral behaviour and attitudes, in a sexual sense, may be explored minutely and persistently. The courts try to keep the stress of the situation to a minimum, but the rights of the accused, particularly when the matter of consent, and knowledge of absence of consent are involved, have to be protected. In my view, at least in cases such as the present, the courts can properly manifest that "moderate encouragement to plead" to which the late Professor Cross, in a passage cited in R v Shannon (supra p.449), referred.

I am of the view that taking the plea of guilty into account, with the other circumstances, the sentence to be imposed for the crime of rape should be 7 1/2 years imprisonment. The sentence for buggery should stand, and the sentences should be served concurrently. I think that the time of the appellant's release should be in the hands of the Parole Board, and not pre-determined by this Court. The social welfare report, advocating a long period of counselling, is to be borne in mind. Taking that into account, the fact that he was in gaol for 2 weeks before sentence, and that he has a wife and young children, I think an appropriate non-parole period is 3 1/2 years.

I would therefore allow the appeals, set aside the sentences, substitute a sentence of 7 1/2 years imprisonment for the crime of rape, confirm the sentence for buggery, order that the sentences be served concurrently, and fix a non-parole period of 3 1/2 years.

JUDGE2

This is an appeal against a sentence imposed by the Supreme Court of the Australian Capital Territory. The appellant pleaded guilty, in the Court of Petty Sessions, to one charge of rape and one charge of buggery, and was committed to the Supreme Court for sentence. The learned judge, after being told the facts in detail, and hearing substantial evidence as to the appellant's antecedents, his family, social, economic, and other like circumstances, and also expert evidence as to his mental state, awarded a sentence of nine years and six months imprisonment on the charge of rape, and five years on the charge of buggery. He ordered that the sentences should be served concurrently and fixed a non-parole period of five years.

The circumstances of the offences were that the accused and the prosecutrix spent an evening drinking and dancing with two other persons, and the prosecutrix began to drive the accused to his home in his car. On the way, there was a change of direction and also a change of drivers, and the accused then proceeded to drive towards the prosecutrix's home. On the way there, he turned off the main road and drove to, and stopped at, the place where the offences were committed. He made advances to the prosecutrix, who asked him to stop and tried to run away; he caught her and pushed her towards the car. She got into the car and sounded the horn hoping that the sound might attract help. The accused then grabbed her clothing and tore it, pulled her out of the car, and pushed her into the bush. She was screaming and he told her to shut up, then slapped and punched her in the face, causing bleeding, and said "Get your clothes off or I will kill you". She obeyed, and he also undressed. He ordered her to kneel, which she did. He then first raped her and then committed buggery on her. When she lay limp, hoping that he might think she had fainted, he hit her with his fists on the head and neck, causing her temple to strike a rock. Eventually he took her home, after apologizing and offering to take her to hospital; an offer which she declined.

Her injuries included swelling, bruising, and lacerations of the face, scratches and bruising of the neck, swelling and bruising of one breast, scratches and bruising of the abdomen, legs and lacerations and bruising of the vulva and anus.

I adopt, with respect, what has been written by Fox J. about the allegation that the accused seized the prosecutrix by the throat, and I agree with his remarks about the procedure which resulted in the wrongful reception of this allegation as evidence against the accused.

The principles upon which this Court acts in an appeal against sentence have been clearly stated. The law was authoritatively reviewed and determined by Bowen C.J., Smithers and Connor JJ. in Kovac v. R. (1977) 15 A.L.R. 637. Again, in Anderson v. The Queen (1977) 19 A.L.R. 212, the Chief Judge and I applied the principle stated in Kovac v. R. and said:

"Our task is to decide whether the trial judge in any way erred in the exercise of his discretion, and unless we are satisfied that he did so, we will not vary the sentence passed by him even if we think it is more severe than we would have awarded in the circumstances."

Smithers J. applied the same principle.

In the case before us it was not suggested by counsel that the sentence itself was so obviously excessive as to demonstrate that the learned judge must have fallen into error. The contentions put forward for counsel for the appellant were two, namely that the learned judge paid insufficient attention or gave insufficient weight to the contrition and remorse shown by the appellant at all times after the offences, and in particular as manifested by his plea of guilty; and secondly, that he was wrong, upon the evidence, in coming to the conclusion that it was impossible to say whether the prosecutrix was a virgin at the time of the rape. Counsel contended that the learned judge should have found on the evidence that the prosecutrix was not a virgin at that time, and should have allowed that fact to weigh in fixing the sentence.

The second contention can be dealt with shortly. What the learned judge said was:

"I find no evidence which satisfies me that she was or was not a virgin before this evening (i.e. the evening on which the offence was committed) nor do I consider it of any cogency here."

I agree with the learned judge that in the circumstances of the case the question was one which carried no weight in the determination of an appropriate sentence.

I turn to the other contention. In his remarks on sentence, the learned judge, after giving an account of the two offences, said that the appellant offered to take the prosecutrix home; that he drove some distance, expressed contrition for what had happened, and said he did not know what had come over him. He further said that the appellant drove the prosecutrix home, and that on the way he wanted to take her to the hospital but was scared she might "press charges".

In an interview with police officers, the appellant, when asked "Why did you want to take her to Queanbeyan Hospital?" replied "She had blood all round her mouth and I felt pretty bad about what I had done and to make sure she was alright." He later said

"I'm sorry for what I have done to the girl. All I can say it was stupid for me to do what I did."

In a report prepared for the Court, a welfare officer said:

"Since the offences occurred Robert appears to have demonstrated considerable remorse over his actions and has indicated he will never again allow himself to be placed in a similar situation to that which preceded the offences. In particular he has expressed a determination to avoid excessive consumption of alcohol."

Later in the report the welfare officer said:

"It would seem that Robert is in need of counselling to help him gain insight into his behaviour and to accept himself as he is. During interviews in preparation for this report, however, Robert did not appear responsive to attempts at such counselling. . . . If Robert received no gaol term it is considered unlikely that he will accept the reality of his crime and be responsive to counselling. Should Robert receive a gaol sentence, it is considered a short period may creat sufficient shock to enable Robert to acknowledge the full extent of his deviant behaviour and motivate him to seek help for the personality difficulties which have contributed to that behaviour."

The appellant did not himself give evidence before the learned judge. The learned judge said:

"I have taken into account that the accused has pleaded guilty and has spent some time in custody."

Counsel contended that, nevertheless, insufficient weight had been given by the learned judge to the appellant's contrition and remorse and to his plea of guilty.

The evidence, in my opinion, shows a moderate degree of contrition in the appellant, but no more than that. I would certainly not accept the use of the word "remorse" to describe the appellant's attitude, and its use by the welfare officer appears to me simply incorrect, in the light of his own report. But there must, of course, be added the fact that the appellant pleaded guilty, and in fact almost always freely admitted the offences. I say "almost" because when first questioned by the police at his home he denied having any knowledge of the offences. Shortly afterwards, in an interview at police headquarters, he admitted them.

I turn, therefore, to a consideration of the weight to be given to the appellant's plea of guilty. The most complete and thorough examination of the law on this subject, within my knowledge, was performed by five judges of the Supreme Court of South Australia in The Queen v. Shannon (1979) 21 S.A.S.R. 442. I would respectfully adopt the propositions put by King C.J. at p.452, and I also note that, notwithstanding some differences of view among the judges, they all agreed that a plea of guilty is not in itself, apart from the circumstances in which it is made, a necessary ground for leniency. I accept, with respect, all these opinions, and in particular I note, as relevant to this case, that they all include a rejection of the view that a plea of guilty entails, or invariably requires, a reduction in the severity of the sentence.

In the case before us, the learned judge expressly said that he took the plea of guilty into consideration. Let it be assumed, in favour of the appellant, that the circumstances of the offences, combined with the moderate degree of contrition which he displayed, were sufficient to show that this case was not one in which the plea of guilty should be allowed no mitigating effect on the sentence. It follows that the sentence in this case would have been imprisonment for more than 9 1/2 years had the appellant pleaded not guilty and been convicted by a jury. This Court in my opinion is entitled to assume that the sentence in that event would have been at least 10 1/2 years. We were told what sentences have been imposed for rape in this Court for the last three years. They include one of seven years and one of eight years. In all cases the prisoners had pleaded not guilty. It may therefore be helpful to consider whether a hypothetical sentence of 10 1/2 years would have been properly considered so excessive as to be demonstrably erroneous.

With some hesitation and not without anxious concern, I have come to the conclusion that 10 1/2 years imprisonment for this offence would be so severe as to be wrong in principle. The Court must bear in mind sentences which have been passed recently for the same offence, and it is clear that the sentence of eight years was for a considerably worse case, in the sense that there was a greater degree of violence and a lesser degree of contrition. In my opinion, therefore, the learned judge erred in that he should have made a more substantial allowance for the fact that the prisoner pleaded guilty.

I consider that the public interest requires that, in proper cases, encouragement should be given to pleas of guilty. I am, of course, mindful that counsel and solicitors having the onerous task of advising clients charged with criminal offences should be able, in the appropriate case, to advise that a consequence of a plea of guilty may be a less severe sentence than would be awarded after a conviction by jury.

I would substitute a sentence of 7 1/2 years imprisonment and fix a non-parole period of 3 1/2 years. I would confirm the sentence for buggery and order that the two sentences be served concurrently.

JUDGE3

In this matter I have had the advantage of reading the judgment of Blackburn J. I agree in his reasons and conclusions and with the orders which he proposes.