Day (a pseudonym) v The Queen

The applicant, Day (a pseudonym), appealed against his sentence for two charges of indecent assault and one charge of gross indecency with a person under 16, which occurred in the late 1980s. Day was sentenced to a total effective period of imprisonment of 3 years and 5 months, with a non-parole period of 2 years. Day argued that the judge erred in not considering his apology to the complainant during a pretext call as evidence of remorse and that the sentence was manifestly excessive. The High Court of Australia was asked to consider these arguments.

The court examined whether the judge's failure to consider Day's apology constituted an error and whether the sentence was manifestly excessive. In addressing the first issue, the court noted that while the judge was entitled to consider various factors in sentencing, the judge did not err in not taking the pretext call apology into account as evidence of remorse. The court held that the judge was entitled to consider the circumstances of the offence and the applicant's character, including any evidence of remorse, but was not obliged to accept the pretext call apology as evidence of remorse. Regarding the second issue, the court found that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for deterrence and rehabilitation.

The court concluded that the judge did not err in not considering Day's apology during the pretext call as evidence of remorse, and the sentence was not manifestly excessive. Consequently, the High Court refused leave to appeal. The applicant's appeal was dismissed, and the original sentence stood.