Hampton v The Queen - [2008] NTCCA 5

Hampton v The Queen [2008] NTCCA 5

PARTIES: HAMPTON, Wayne Andrew

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 5 of 2007 (20508002)
DELIVERED:  28 April 2008
HEARING DATE:  21 April 2008
JUDGMENT OF:  Martin (BR) CJ, Riley and Southwood JJ
APPEALED FROM:  Angel J
CATCHWORDS:
APPEAL – CRIMINAL LAW

Application for leave to appeal – application for extension of time to seek leave to appeal – error in sentencing – cumulative sentences – principle of totality – sentence manifestly excessive – sentence on an erroneous factual basis

Attorney-General v Tichy (1982) 30 SASR 84; Brown v Lynch (1982) 15 NTR 9; Dinsdale v The Queen (2000) 202 CLR 321; Liddy v R [2005] NTCCA 4; Miles v The Queen [2001] NTCA 9; Mill v The Queen (1988) 166 CLR 59; Murphy v The Queen [2005] NTCCA 15, followed

REPRESENTATION:
Counsel:
Applicant:P Elliott
Respondent:  P Usher and E Armitage
Solicitors:
Applicant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ril0807
Number of pages:  24

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Hampton v The Queen [2008] NTCCA 5

No. CA 5 of 2007 (20508002)
BETWEEN:

WAYNE ANDREW HAMPTON

Applicant

AND:

THE QUEEN

Respondent

CORAM: Martin (BR) CJ, Riley and Southwood JJ
REASONS FOR JUDGMENT
(Delivered 28 April 2008)
Martin (BR) CJ:

I agree with the reasons of Riley J for dismissing the applications for leave to appeal and extension of time within which to seek leave to appeal.
The crimes were premeditated, callous and vicious. They ended only when the victims escaped. In particular, the second victim, T, was subjected to a prolonged and horrific ordeal which has lifetime consequences for her.
There is no apparent error by the learned sentencing Judge. The individual sentences and total of 24 years are well within the range of the sentencing discretion. Indeed, it was open to his Honour to have reached a total in excess of 24 years.
Riley J:
On 17 July 2006 the applicant pleaded guilty to 13 counts contained in an indictment dated 21 October 2005. There followed a number of “unavoidable delays" until, on 12 April 2007, he was sentenced to imprisonment for a total period of 24 years with a non-parole period fixed at 16 years. On 22 June 2007 an application for leave to appeal was refused by a judge of this Court. The applicant sought to have the application for leave to appeal determined by three judges of the Court. Further, the applicant applied for an extension of time within which to seek leave to appeal in respect of an additional three proposed grounds of appeal.
At the conclusion of the hearing of the appeal the Court refused leave and refused the application for an extension of time. I now set out my reasons for refusing the applications.
The offences arose from a course of conduct upon which the applicant embarked early on 3 April 2005 and which continued through to his arrest at 11:15am on that day. The offences were correctly described by the learned sentencing judge as "very serious crimes" of a type that "give rise to indignation and to moral outrage in the community."
The first count on the indictment was that the applicant deprived his female victim, K, of her personal liberty. The remaining 12 counts relate to the female victim, T, and were four counts of aggravated unlawful assault, one count of depriving T of her personal liberty, three counts of committing an act of gross indecency upon T, and four counts of having sexual intercourse with T without her consent.
The admitted facts of count 1 relating to K were that, at about 5.00 am on 3 April 2005, the applicant was driving in Smith Street Darwin when he saw K, a 20-year-old female student, standing on the footpath. He stopped alongside her and had a conversation with her. She entered the vehicle after being offered a ride to a take-away food shop further along the street. K later had no recollection as to how she came to be in the car. The applicant drove beyond the take-away food shop and K became alarmed. She was concerned for her welfare and tried to open the front passenger car door but was prevented from doing so by the central locking mechanism. She pleaded with the applicant to be released but he continued driving. K became increasingly concerned for her welfare and was distressed and crying. The applicant said to her, "I’m not fucking going to let you go". This was said in a serious and deliberate tone that frightened K. She took hold of her mobile phone and dialled 000 but the applicant snatched the phone from her and threw it into the back seat of the car. K subsequently said, "That is when I started going psycho and began clawing at the passenger's side window, the door trim and lock, trying to get out of the car." The applicant then leant across the car and pushed against the chest of K pressing her into the passenger seat. As the vehicle approached traffic lights on Gilruth Avenue K moved in her car seat presenting her back to the applicant. She managed to unlock the passenger door which opened slightly. She then pushed the door completely open and escaped from the vehicle by jumping from it at a time when it was travelling at about 60 km per hour. K then managed to attract the attention of the driver of a police van and was taken to the Darwin Police Station and then to the Royal Darwin Hospital. At the hospital she was noted to have “extensive abrasions to her back, bilateral scapula regions, right thoracic region and across the lower back; abrasions to her left lateral thigh, left lateral lower leg, left knee and left ankle; abrasions to her left arm; and abrasions to medial surface right knee".
When the applicant was interviewed some days later he admitted the offending and when asked why he refused to stop his vehicle thereby depriving K of her liberty, he said, "I was going to take her home and have a coffee with her". When asked why he snatched the phone from her hand he said he was angry and scared and when asked why he did not assist K after she jumped from his vehicle he said, "I panicked. I kept driving". The maximum penalty for the offence of depriving his victim of her personal liberty is imprisonment for seven years. A sentence of three years imprisonment was imposed for this offence.
The remaining counts on the indictment related to the victim T and arose out of events which occurred soon after the completion of the incident involving K. The applicant was again driving in the city and he picked up a male passenger. He informed the male passenger that he wanted to "pick up a girl". He saw the second victim, T, walking along the road. T was a 21 year old female of slight build. The male passenger got out of the car and called to her. She ignored him and walked away. The passenger left the area and the applicant followed T to the corner of Woods and Knuckey Streets in the city. He offered her a lift but she declined. She said she wanted to be left alone. The applicant observed that she looked scared and he continued to follow her. He again approached her and she again refused his offer. The applicant then walked quickly towards T. She tried to use her mobile phone but the applicant took it from her and threw it away. He grabbed hold of her and she resisted by trying to knee him in the groin. He then forcefully pushed her back causing her head to strike a fence post. She was stunned and suffered a cut to the back of her head. T started screaming and the applicant placed his mouth over hers. She bit him on the tongue as hard as she could and he then put his index finger in her mouth to force it open. The applicant became angry and forced T to his car. He swung her to the ground and pinned her down, choking her using both hands around her throat until she became limp. He later told the police, "I grabbed her around the throat and I just squeezed and she stopped. I didn't want to kill her or nothing, I just wanted her to be quiet". T pretended to be unconscious so that the applicant would stop choking her. Those are the circumstances of the aggravated assault referred to in count 2 of the indictment. The maximum penalty for such offending is imprisonment for five years and the applicant was sentenced to imprisonment for three years.
Count 3 is a charge of deprivation of liberty which arose out of the events that followed the assault and continued through to the time the victim made her escape. Following the assault the applicant opened the boot of his car. T was too weak to escape and the applicant returned to where she was lying, picked her up and forced her into the boot of the vehicle. She struggled and the applicant again began to choke her in an effort to stop her struggling. The victim later complained that the applicant was "squeezing my neck a lot harder and longer, I could not breathe. I could feel my eyes and nose watering and thought I would pass out as I could not breathe at all". Her attacker told her, "It's your own fault. If you hadn't struggled I would not have had to do this". T was locked in the boot of the car.
The applicant then drove out of the city area along the Stuart Highway. He stopped at a roadside cafe and purchased food and a soft drink. He told T, who remained in the boot, to remain silent and she did so because of her fear. The applicant drove to a remote bush location 1.4 km past the Batchelor turn off and some 85 km from Darwin. He there released T from the boot and directed that she remove her clothes. She informed him that she was menstruating and he responded, "That is all right, I like it anal anyway." In fear for her safety she complied with his directions to undress and removed her tampon.
The applicant then forcefully struck the victim to the right side of her face with an open hand. He struck her again with an open hand, this time to the left side of her face. On each occasion she was knocked sideways by the force of the blow. T then said to the applicant, "Look, I will do whatever you want, just don't hurt me." The applicant told the victim that she should perform fellatio upon him saying, "Now, if you suck on my dick, you are not going to bite me, you wouldn't want to bite me. If you bite me, you’re in too much trouble". Those facts constitute the aggravated assault referred to in count 4 on the indictment. The maximum penalty for the offence of unlawful assault is imprisonment for a period of five years. The applicant was sentenced to imprisonment for a period of 12 months.
Count 5, an indecent assault, occurred when the applicant began sucking on the nipples of his victim and fondling her genital area. The maximum penalty for this offence is imprisonment for five years and the applicant was sentenced to imprisonment for a period of 12 months.
Count 6, a count of gross indecency, occurred when the victim knelt in front of the applicant and his penis was in contact with her mouth. The maximum penalty for this offence is imprisonment for 14 years and the applicant was sentenced to imprisonment for two years.
Count 7, a further count of gross indecency, occurred when the applicant required the victim to insert her finger into his anus. She continued to "mouth" the applicant's penis and to penetrate the offender's anus with her finger until she began gagging. The applicant was sentenced to imprisonment for a period of two years in respect of this offence.
Count 8, an offence of having sexual intercourse with T without her consent, occurred when the applicant required the victim to "lean over the boot". He then placed his penis in her vagina and had sexual intercourse with her until he ejaculated inside her. He did not use a condom. Thereafter the applicant feigned a telephone call in which he referred to his "Sergeant" instructing him to make his victim "a casualty” which he explained to her by saying he was "supposed to leave you out here". He then handed the car keys and a pole to his victim and told her to "just kill me and leave me here". She was afraid and rolled the pole under the car to ensure it was not used against her. The applicant instructed the victim to get dressed and get back into the boot of the car. She did so. The maximum penalty for the offence of sexual intercourse without consent is imprisonment for life. The applicant was sentenced to imprisonment for eight years.
The applicant drove the vehicle with the victim in the boot to his unit situated in Nightcliff. He took the victim into the unit and told her to have a shower. She started to wash her face and hair but remained fully clothed and he insisted that she take her clothes off. After she had finished her shower he directed her to leave her clothes off because "she wouldn’t run away without clothes on". The applicant then tied her hands behind her back with a length of electrical wire and made her lie face down on a mattress.
Count 9, a count of sexual intercourse without consent, occurred when the applicant instructed the victim to spread her legs as far apart as possible and then placed his penis inside her vagina. He rolled her onto her back and attempted unsuccessfully to penetrate her a further time. Again, he did not use a condom. He was sentenced to imprisonment for nine years.
Count 10, a further count of sexual intercourse without consent, occurred when the applicant turned the victim onto her stomach and penetrated her anus with his penis. In his subsequent interview he acknowledged to the police that the victim "did not like me having anal sex with her and said it hurt". He was sentenced to imprisonment for 10 years.
Count 11, an offence of gross indecency, occurred when the applicant spread the victim's buttocks and licked her anus with his tongue. He was sentenced to imprisonment for two years.
Count 12, a further count of aggravated assault, occurred when the applicant obtained a bottle of amyl nitrate and held that under the nose of his victim, forcing her to sniff the fumes as a result of which she could feel her heart racing. He then repeated the exercise covering her mouth and each of her nostrils one at a time. She felt her heart "racing violently". The applicant subsequently told police that he gave his victim "a smell of it and then I proceeded to have sex with her". He was sentenced to imprisonment for 18 months.
The applicant thereafter continued to penetrate the victim both anally and vaginally and the sentencing judge took that to be a continuation of the activity comprising counts 9 and 10.
The final count, another count of rape, occurred when the applicant inserted a blunt instrument into the vagina of his victim. The instrument was subsequently identified as the handle of a claw hammer. The victim described the object as being "really hard" and said that it hurt. It was removed from her vagina and then re-inserted. Thereafter the applicant inserted his penis into her vagina and continued to have sexual intercourse until he ejaculated inside her. He was sentenced to imprisonment for eight years.
Throughout the whole of the period the victim was deprived of her liberty and that offence is the subject of count three on the indictment. The applicant was sentenced to imprisonment for five years for the offence.
The ordeal of the victim came to an end when she escaped. Following the activities in the Nightcliff unit the applicant tied her feet together and then extended the tie to her wrists so that she was "hog-tied". The applicant insisted that the victim go to sleep. She was so exhausted that she did in fact fall asleep but later awoke to find the applicant was asleep. She managed to untie the knots that bound her to the bed and, whilst her feet and hands were still bound, she shuffled into the kitchen and used a steak knife to cut the binding. Her hands remained tied behind her back but she managed to open the rear door of the unit and escape. At all times she was "petrified" that she would be discovered by the applicant. She ran naked across the road and alerted a neighbour. Police were then called and the applicant arrested.
The impact of the conduct of the applicant upon his victims was significant. The first victim, K, sustained serious injuries after jumping from the moving vehicle. She sustained extensive bruising and deep cuts and abrasions to her back area extending from her shoulders to the top of her tail bone, her arms, her hands, her legs and her ankles. Her abrasions were cleaned at the Royal Darwin Hospital in what was a lengthy and painful process. She was not able to walk properly for about two weeks. She could not lie on her back due to the abrasions. The abrasions took months to heal and she was left with scars on her back, ankles and arms. She also had a scar on her left knee. She was required to give evidence at the committal hearing. Her university studies suffered and she lost earnings from her part-time work as a waitress. She lost trust in people.
In relation to the victim, T, the learned sentencing judge said:
"T’s life was irrevocably changed as a consequence of the crimes committed against her. She used up all her sick leave and annual leave trying to find her feet again following the crimes. As one would expect, she has had recurrent nightmares, has suffered financially due to disruption to her work, has suffered anxiety attacks and depression and has had to take antidepressants. She has had to leave Darwin. In her record of interview she says: "I've been through enough. Back in April, this man took me to hell and back. I spent two days giving all the gory details to police. I spent a month being pumped with hard-core drugs, weeks having blood tests. Now I have a lifetime of fears, overwhelming emotions and memories." She was also required to give evidence at the committal. Until the results of the blood tests became known to her she was in fear of sexually transmitted diseases including AIDS from unprotected sex."
The learned sentencing judge described the offences as "very serious crimes”. He said that the deprivation of liberty counts were in the most serious category of offences of their kind. He observed that each of the victims was a young woman minding her own business and was a complete stranger to the applicant. Each was "abducted off the street by (the applicant) for an unlawful purpose". In relation to the deprivation of liberty of T, his Honour noted that the deprivation continued over a lengthy period of time and was maintained by, amongst other things, locking the victim in the confined space of a car boot and hog-tying her with rope.
The learned sentencing judge described the offending against T as involving repeated violence, repeated degradation of the victim and depraved conduct which was carried out "callously and without pity or misgivings". He characterised the offending as being "in the worst category of sexual offences against women” and, in this regard, referred to the level of violence (including gratuitous violence and the threat of further violence), the repeated acts of rape extending over hours, the pre-planning involved, the fact that the applicant had "plenty of time to cool down", the subjecting of T "to sexual indignities and perversions including penetration with the handle of a claw hammer” and, finally, the fact that she would have permanent emotional scars as a consequence of the crimes.
The learned sentencing judge provided a personal history of the applicant and expressly took into account the matters in mitigation which had been placed before him by his counsel. No complaint is made by the applicant in this regard. His Honour proceeded to pass sentence allocating terms of imprisonment to each count. He then directed concurrency and cumulation between the sentences imposed in relation to various counts and finally reached a net head sentence of imprisonment for 24 years. He fixed a non-parole period of 16 years.
Proposed grounds of appeal:
(a)Ground 3: That the learned sentencing judge erred in making the sentences on counts 9 to 13 (inclusive) cumulative on the sentences for counts 2 to 8 (inclusive).

The applicant did not take exception to any of the sentences imposed by the learned sentencing judge in respect of the individual counts 2 to 13. Challenge was made to the sentence imposed in relation to count 1 and that is the subject of proposed ground of appeal 8.
In determining the appropriate sentence to impose upon the applicant the learned sentencing judge divided the offending of the applicant into four episodes being: (1) the abduction of K; (2) the initial assault upon, and the abduction of, T in Darwin; (3) the offences committed against T at the remote bush location south of the Batchelor turnoff; and (4) the offences committed against T at the applicant’s unit in Nightcliff. His Honour acknowledged that all of the offences relating to T occurred during the period T was unlawfully detained which, of course, was itself an offence. Having determined the sentences to be imposed in relation to the individual offences his Honour ordered that the sentences be served as follows:
(a)the sentence on count 2 be served cumulatively upon count 1;
(b)the sentences in relation to counts 3 to 8 (the Batchelor offences) be served concurrently with each other but cumulatively upon counts 1 and 2; and
(c)the sentences in relation to counts 9 to 13 (the Nightcliff offences) be served concurrently with each other but cumulatively upon counts 3 to 8.
The applicant complains of the approach adopted by his Honour to the issue of accumulation. It was noted that the offending, which all took place on the one day, commenced shortly after 6.00 am and was completed by the time of the arrest of the applicant at 11:55 am, a period of between five and six hours. In those circumstances it was contended that it was artificial to categorise the differences in the places of the offending, and the short period of time between the groups of offending, where the nature of the offending is the same, and the victim of the offending is the same, as sufficient to amount to "distinct episodes of offending". Whilst the applicant conceded that counts 2 to 13 comprised a number of discrete offences, it was submitted that the proper approach to be taken in relation to those counts was that they were part of a continuing course of conduct, or alternatively, had a sufficient nexus so that they could not properly be classified as three distinct episodes of offending.
Section 50 of the Sentencing Act creates a prima facie rule that terms of imprisonment are to be served concurrently unless the court "otherwise orders". It has been observed that there is no fetter upon the discretion exercised by the court and the prima facie rule can be displaced by a positive decision: Miles v The Queen[1]. Generally speaking, when a number of offences arise from substantially the same act or same circumstances or a closely related series of occurrences, and subject to the ultimate sentence adequately reflecting the gravity of the total criminal conduct, concurrent sentences are appropriate: Brown v Lynch[2]. In Attorney-General v Tichy[3] Wells J observed:
"It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether the sentences should be ordered to be served concurrently or consecutively ... What is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct."
As was stated in Murphy v The Queen[4]:
"The assessment will always be a matter of fact and degree. Reasonable minds might reach different conclusions as to the need for accumulation especially in cases that may be described as borderline. In many cases there will be no clearly correct answer and the overriding concern is that the sentences for the individual offences and the total sentence imposed be proportionate to the criminality in each case."
Although, on one view, the applicant was engaged in one course of conduct because each offence followed on from a previous offence committed on the same day, those offences occurred over a substantial period of time and involved quite different episodes. The learned sentencing judge separated the offending against T into three broad categories. First was the assault on T in Darwin. Secondly, the Batchelor offences which involved the abduction of T and the offences which followed upon the abduction and occurred some time later in the bush some distance from Darwin. That offending was preceded by a significant journey which included stopping at a roadside cafe to purchase food and drink. The Batchelor offences occurred at a quite separate time and place from the earlier offending and involved conduct of a different kind, namely the abduction of T and then a series of assaults of a sexual kind facilitated by that abduction. The sentences in relation to the Batchelor offences were appropriately ordered to be served concurrently.
The final group of offences were those occurring after the return journey to Darwin and took place in the unit of the applicant in the suburb of Nightcliff. The Nightcliff offences were quite separate from the earlier offending both in time and in location. It was appropriate for the sentences imposed for these offences to be the subject of an order for concurrency amongst themselves.
In my view it was open to the learned sentencing judge to proceed as he did. There was a logical and identified basis for grouping the offences in the manner described and also for ordering concurrency of sentences imposed in relation to the offences within each separate group. Similarly, there was a logical and identified basis for ordering accumulation as between the separate groups. Each group of offences was separate in time and location. In the intervening period the applicant had ample opportunity to reconsider his position and to desist. In the words of the sentencing judge the applicant had "plenty of time to cool down" between the groups of offences. Error has not been shown in the approach adopted by the learned sentencing judge.
Importantly, as has been observed, the overriding concern is that the sentences for the individual offences and the total sentence imposed should be proportionate to the criminality in each case. In the present case the overall sentence was, in my view, proportionate to the gravity of the offending.
(b)      Grounds 4 and 5:
(4)      The learned sentencing judge erred in failing to apply the principle of totality; and
(5)      The sentence of 24 years imprisonment is manifestly excessive.
These grounds were argued together. It was submitted on behalf of the applicant that the learned sentencing judge erred in not giving effect to the principle of totality resulting in him arriving at a sentence that was manifestly excessive. It was acknowledged that his Honour referred to the totality principle but, so it was said, the length of the sentence itself indicated that the principle was not properly applied in the sentencing of this applicant.
It is clear that the learned sentencing judge did remind himself of the totality principle and he observed that he should refrain from passing a crushing sentence. He noted that "the requirements of reasonable proportionality with the circumstances of these crimes require lengthy custodial sentences" and, correctly observed, that the crimes committed against T were in the worst category of sexual offences against women. He then proceeded to impose the sentences in relation to which complaint is now made.
The totality principle requires a sentencer who has passed a series of sentences to review the aggregate sentence and consider whether the aggregate is just and appropriate: Mill v The Queen.[5] It is clear that his Honour undertook that process.
In relation to the submission that the sentence of imprisonment for 24 years is manifestly excessive it is necessary for the excess to be "plainly apparent": Dinsdale v The Queen[6]. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive as to manifest such error. In relying upon this ground it is incumbent upon an appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously, and not just arguably, excessive.[7]The sentence must be so very obviously excessive that it was unreasonable or unjust. As has been observed on other occasions, a submission that a sentence is manifestly, and not merely arguably, excessive, is not one which is capable of a great deal of elaboration.
In the present case, in my view, the overall sentence imposed upon the applicant was not manifestly excessive. It was comfortably within the range of outcomes available to the learned sentencing judge.
(c)Ground 6: The learned sentencing judge erred in that, in sentencing the applicant in respect of count 1, he sentenced on an erroneous factual basis, in that he found the victim was "abducted off the street ... for an unlawful purpose".
In sentencing the applicant the learned sentencing judge observed that "the deprivation of liberty counts are in the most serious category ... each was a young woman, minding her own business, a complete stranger to you, abducted off the street by you for an unlawful purpose". The applicant argued that there was no evidence that the victim, K, was in fact "abducted off the street” and that he should not have been sentenced on that factual basis. The submission is without merit.
The evidence placed before the learned sentencing judge by way of agreed facts included that the applicant, in his record of interview, "told the police that he stopped his vehicle alongside K who then opened the passenger door and had a conversation with him. K entered the vehicle ... K however has no recollection as to how she came to be in the offender's car." No matter how she came to be in the car the unchallenged evidence is that she was offered a ride to a take-away shop further along the street but the applicant did not stop his vehicle at the take-away shop and continued on in the manner previously described. It was not disputed that the victim was not able to open the front passenger door because the central locking was engaged or that the applicant ignored her repeated and distressed requests to be let out of the vehicle. It was also not disputed that the applicant refused the requests and said, "I’m not fucking going to let you go", in a serious and deliberate tone. Further, when K sought to call help on her mobile phone, the applicant snatched the phone from her and threw it into the back of the car. Throughout the ordeal the victim was screaming and pleading to be released. She was "clawing at the passenger side window, door trim and lock trying to get out of the car" and the applicant pushed her back against the passenger seat. The agreed facts made it clear that she only managed to escape the vehicle by jumping out of it whilst it was travelling at about 60 km per hour.
The complaint of the applicant comes down to a matter of semantics. The dictionary meaning of "abduction" includes "kidnap" and "take away (especially woman) by illegal force". That is what occurred in the circumstances described. On the basis of the agreed facts put to, and adopted by, the learned sentencing judge, it is hardly to the point whether the observation that she was abducted "off the street" is strictly correct. The criminal conduct as described by his Honour was not in dispute.
(d)Ground (7): The learned sentencing judge erred in that in sentencing the applicant in respect of count 1, he made a finding that the applicant abducted K for a sexual purpose.
It was contended on behalf of the applicant that the learned sentencing judge sentenced the applicant on the basis that "there is a clear inference that you abducted K for sexual purposes and that, when frustrated in this endeavour, only an hour later, you abducted T". It was argued that this finding was not available to the learned sentencing judge. It was submitted that the only basis upon which the learned sentencing judge could have made such a finding was the subsequent offending of the applicant. It was said that there was no evidence as to the intentions of the applicant other than "his assertion in his record of interview that he wanted to talk to her and have a cup of coffee with her".
To the contrary, there was ample evidence upon which the conclusion drawn by the learned sentencing judge could be founded. The applicant provided various reasons for not taking the victim to the take-away shop as he agreed he had promised. These included his suggestion that he wanted to talk to her and have a cup of coffee with her, that he drove past the shop "inadvertently", that he could not remember the incident, that the police had the wrong man and that he was unaware of the whereabouts of the take-away shop. In light of the agreed facts these claims are fanciful and readily rejected. Supportive of the conclusion drawn by the learned sentencing judge was the short period of time between K escaping from the vehicle and the commencement of the offending against T. Soon after K escaped from the vehicle the applicant told his male passenger that "he wanted to pick up a girl", he then did so and commenced the offending of a sexual nature against his next victim, T. The inference drawn by the learned sentencing judge was clearly available to him.
(e) Ground 8: The sentence in respect of count 1 is manifestly excessive.
The only individual sentence challenged by the applicant relates to the sentence to imprisonment for three years imposed in relation to count 1, the offence of depriving K of her personal liberty. The applicant did not seek to identify any specific error in the sentencing process but, rather, submitted that the sentence was manifestly excessive. As was observed in relation to Ground 5 above, for the applicant to succeed on this ground it is necessary for the claimed excess to be "plainly apparent": Dinsdale v The Queen[8]. The sentence must be so very obviously excessive that it was unreasonable or unjust. A submission that a sentence is manifestly, and not merely arguably, excessive is not one which is capable of a great deal of elaboration.
The maximum sentence available to the learned sentencing judge was imprisonment for seven years. The penalty imposed was less than half that maximum. It was imposed in circumstances where the offending included the facts that the victim was a stranger to the applicant and was put through a terrifying ordeal that only ceased when she jumped from his moving vehicle causing significant injuries to her. The conduct of the applicant instilled terror in the victim at the time and the consequences of her ordeal continued with her long after the events occurred. The learned sentencing judge concluded that the applicant expressed little remorse for his victim and continued to deny the occurrence of the offence over a substantial period of time. Ultimately, there was a plea of guilty but that came at a late time and in face of a strong Crown case. The unchallenged conclusion of his Honour was that the prospects for rehabilitation of the applicant were poor.
In my opinion the sentence imposed by the learned sentencing judge was not manifestly excessive.
For these reasons I agreed that the Court should refuse to grant leave to appeal in relation to grounds 3, 4 and 5 and refuse the application for extension of time in relation to proposed grounds 6, 7 and 8.
Southwood J:
For the reasons given by Riley J I agree that the application for leave to appeal against sentence should be refused. Although very ably argued by Mr Elliott, the application was without merit.
The crimes committed by the applicant were brazen and evil crimes which demonstrated that the applicant had no empathy for his victims. The applicant’s crimes were deserving of severe punishment. In order to ensure the safety of the female members of the community it is necessary that the applicant be incarcerated for a lengthy period of time. There is a very real risk that the applicant would re-offend if a shorter term of imprisonment had been imposed upon him by the learned sentencing judge.
When considering if the applicant should be released on parole the Parole Board should give paramount consideration to the protection of the female members of the community.

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[1] [2001] NTCA 9

[2] (1982) 15 NTR 9 at 11-12

[3] (1982) 30 SASR 84 at 92-93

[4] [2005] NTCCA 15 at par 26

[5] (1988) 166 CLR 59 at 62

[6] (2000) 202 CLR 321 at[6]

[7] Liddy v R [2005] NTCCA 4 at [12]

[8] (2000) 202 CLR 321 at [6]