Maximo Armando Pantoja v The King

[2025] NSWCCA 10

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Maximo Armando Pantoja v R [2025] NSWCCA 10

Hearing dates:

04 February 2025

Date of orders:

24 February 2025

Decision date:

24 February 2025

Before:

Stern JA at [1]
Garling J at [2]
N Adams J at [96]

Decision:

(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:

SENTENCING – Appeal against sentence – Severity – Sentence manifestly excessive – Relevant factors on sentence – Objective seriousness – Sentencing statistics – Aggravating factors – Where actual bodily harm is inflicted – Where the aggregate sentence falls within the discretionary range allowed to a sentencing Judge

CRIMINAL PROCEDURE – Sentencing proceedings – Whether comparable cases are relevant in determining duration of imprisonment and non-parole period – Whether comparable sentences fix an outer limit for the imposition of rational sentences

Legislation Cited:

Crimes Act 1900, ss 59(1), 61I, 61J

Crimes (Sentencing Procedure) Act 1999, ss 3A, 54A

Cases Cited:

Black v R [2013] NSWCCA 265

Hili v R [2010] HCA 45; (2010) 242 CLR 520

Hughes v R [2018] NSWCCA 2

JM v R [2014] NSWCCA 297

Kentwell v R [2014] HCA 37; (2014) 252 CLR 601

R v SS (a pseudonym) [2022] NSWCCA 258

SC v R [2019] NSWCCA 25

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Maximo Armando Pantoja (Applicant)
The Crown (Respondent)

Representation:

Counsel:
J Stratton SC (Applicant)
S Lind (Respondent)

Solicitors:
Just Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/298470

Publication restriction:

Not Applicable

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

04 August 2023

Before:

Hock DCJ

File Number(s):

2020/298470

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 4 August 2023, Maximo Pantoja (the applicant), was sentenced to an aggregate sentence of 15 years imprisonment, with a non-parole period of 11 years and 3 months.

The applicant had been found guilty of three offences. Counts 1 and 2 were the offence of sexual intercourse without consent contrary to s 61I Crimes Act 1900 (NSW). Count 3 was an offence of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW). Both offences were committed against a woman that the applicant was, at one time, in a domestic relationship with, however the relationship had since ended. Notably, the applicant had previously been convicted of the murder of his ex-wife.

The applicant sought leave to appeal the sentence on the grounds that the aggregate sentence was manifestly excessive, and in particular the indicative sentence for Count 3 was manifestly excessive. When assessing the objective seriousness of each offence, the sentencing judge determined:

Count 1: the form of sexual intercourse was digital penetration, ‘which is generally regarded as less serious than penile/vaginal intercourse’;

Count 2: the form of sexual intercourse was penile/vaginal intercourse, which lasted 20 minutes, done so without use of a condom;

Count 3: the form of sexual intercourse was digital penetration in the context of a violent struggle, continuing for 15 to 20 minutes in a small room. The circumstance of aggravation was a tear to the victim’s vagina which, although visible on medical examination, was at the lower level of actual bodily harm which can be occasioned.

The Court (Per Garling J, Stern JA and N Adams J) granted leave to appeal and held:

1. That consideration of the sentencing statistics demonstrates that only a small number of offenders had received a higher head sentence than the indicative sentence for Count 3 and that, again, only a small number of offenders had received a higher non-parole period than that indicated by the primary judge [87].

2. That the totality of the circumstances, the deliberate nature of the conduct in which the applicant engaged, the fact that he could have been under no misapprehension as to the victim’s refusal to consent to the conduct, where the conduct occurred at the time of night at which it occurred, the length of time over which Count 3 continued, the nature of the offending being that it arose in the context of a domestic relationship, and against the background of his previous offence of murder (an offence involving serious personal violence, as did this offence), all combine to demonstrate that, whilst the aggregate sentence could not be regarded as lenient, and may be higher than a sentence that some other Judges may have imposed, it nevertheless fell within the discretionary range available to the Judge in this case [88]. As such, it did not involve a manifestly excessive sentence such as to indicate an error of law on the part of the primary judge [89].

3. The Court upheld the sentence imposed by the District Court and dismissed the appeal.

JUDGMENT

1. STERN JA: I agree with Garling J.

2. GARLING J: Maximo Pantoja (“the applicant”) was convicted, after a lengthy jury trial, of three offences. Two of those were offences contrary to s 61I of the Crimes Act 1900, namely sexual intercourse without consent. The third offence was one contrary to s 61J of the Crimes Act, being aggravated sexual intercourse without consent. The element of aggravation was the reckless infliction of actual bodily harm.

3. Hock DCJ (“the Judge”) imposed an aggregate sentence of 15 years imprisonment with a non-parole period of 11 years and 3 months, to commence on 18 October 2020, being the date that the applicant was arrested and taken into custody.

4. The applicant seeks leave to appeal against the sentence imposed upon him. He relies on the following ground of appeal:

“The aggregate sentence was manifestly excessive, and in particular, the indicative sentence for Count 3 was manifestly excessive.”

5. For the following reasons, I propose that this Court should grant leave to appeal, and that the appeal should be dismissed.

The Relevant Facts

6. In her Remarks on Sentence, the Judge summarised the relevant facts with respect to each Count. Neither party to the application for leave to appeal took exception to her Honour’s summary.

7. That summary provides a sound basis for the consideration of the facts relating to the offending and the issues raised on this application. The following is largely drawn from her Honour’s Remarks.

8. The applicant and the victim had come to Australia separately from Peru. They were married in 2009. In November 2019, after difficulties in their relationship, they separated.

9. The applicant did not accept that the relationship had come to an end. For a period of about six months leading up to the end of August 2020, on occasions the victim agreed to have sexual intercourse with the applicant, although they were not living together, because if she did not, the applicant would threaten to kill her or their children. Some of these consensual encounters happened at the victim’s workplace. Ultimately, the victim ceased to comply with the applicant’s sexual demands, and the consensual encounters came to an end.

10. In respect of Counts 1 and 2 which occurred during that six-month period, on one occasion the applicant unexpectedly attended the victim’s workplace at Eastern Creek where she was employed as a cleaner. The applicant pleaded with the victim to permit the resumption of their relationship. He made threats and assertions of fact which placed the blame on the victim for “destroying the family”.

11. During the course of this encounter, whilst in the kitchen area of the building, the applicant pushed the victim against a table. She struggled against him, but the applicant managed to pull down her tights and her underwear, and digitally penetrated her vagina for about two minutes. The victim told the applicant to stop many times. This conduct constituted Count 1.

12. The applicant then had penile/vaginal intercourse with the victim from behind whilst holding her with one hand against a table. The victim was crying and saying loudly “stop” and “please don’t do it”. She resisted the applicant physically, during which she scratched the applicant’s face, leaving a visible mark. This conduct on the part of the applicant constituted Count 2.

13. Later, on 15 October 2020, in the evening, the applicant again unexpectedly attended one of the victim’s workplaces at Smeaton Grange.

14. In the course of her cleaning duties, the victim entered a bathroom to clean it. The applicant followed her into the bathroom, picked her up and placed her on top of a basin. The victim asked to be left alone, but the applicant stated that he wanted to perform oral sex on her. The victim did not consent, and said that since they were not together, she was entitled to his respect.

15. There was then a violent struggle for about 30 minutes as the victim tried to leave the bathroom to escape the applicant’s sexual advances. Initially, the applicant tried to penetrate the victim’s vagina, but she kept trying to sit down to prevent this from occurring. The applicant kept trying to remove her pants, which she was holding with one hand. In the process, he scratched the back of her hand. When the victim attempted to crawl out of the bathroom, the applicant pulled her back by her legs.

16. Ultimately, the applicant penetrated the victim’s vagina digitally from the back of her body, causing a tear to the opening of her vagina. The penetration lasted 15 to 20 minutes, during which the victim was crying and imploring the applicant, saying to him words to the effect of “Please stop, stop. Do not – don’t do that”.

17. The offender did not stop. He finally did so when the defendant said to him “think about our kids”. He then responded “Sorry, I feel really bad. After you leave me, I can’t sleep and eat for a year”. Although no further physical conduct occurred, the applicant declined to leave the workplace and insisted on staying. He told the victim that what occurred was all her fault because she had ended their relationship. He remained with the victim, extending the length of her ordeal, for another hour or so. This conduct constituted Count 3.

Sentence

18. The Judge, having related the details of the facts as I have described them, considered the assessment of the objective gravity of the three offences.

19. In the proceedings on sentence before her, the Judge had been provided with Outline Submissions by counsel for the applicant and for the Crown.

20. With respect to objective seriousness, the Crown submitted that the conduct in Count 1 was towards the lower end of the range, Count 2 was in the mid‑range for offences of that type, and that Count 3 was also, at least, in the mid‑range for offences of that type. Counsel for the applicant submitted to the Judge that Counts 1 and 2 were to be assessed as falling below the mid-level of objective seriousness. She accepted that Count 3 was to be assessed at the mid‑level of objective seriousness. Accordingly, with respect to the objective seriousness of Count 3, there was no difference in the submissions placed before the Judge by either the Crown or those for the applicant.

21. In her Remarks on Sentence, the Judge did not identify specifically where each Count fell on a range for those offences. She preferred to describe the features of the offending, concluding it would be obvious from what she outlined, and from the indicative sentences which she would describe, what the level of seriousness of each offence was.

22. Her Honour pointed to the following features as being applicable to her assessment of the objective seriousness of the applicant’s conduct and any sentence being imposed, namely:

• violent attacks in the context of a domestic relationship must be treated with great seriousness;

• the conduct usually involved aggression by men who are physically stronger than their victim, and who are often in a position economically or otherwise, to enforce their silence;

• such conduct is brutal, cowardly, and inexcusable;

• that Courts have a duty to ensure that it is adequately punished; and

• sentences must demonstrate strong elements of personal and general deterrence.

23. Her Honour was satisfied that with respect to each of the offences, the state of mind of the applicant was that he had actual knowledge that the complainant was not consenting. She reached this conclusion having regard to the facts which indicated what the complainant said and did to convey the absence of consent. Her Honour noted that on the occasions of each of the Counts, the victim was alone in her workplace at night, and the applicant on each occasion arrived uninvited. None of these factual conclusions are challenged.

24. Her Honour turned to consider the applicant’s subjective circumstances. She noted that he was 60 years old, and that on a previous occasion he had been convicted of the murder of his then wife. As a consequence of that conviction on 5 March 1997, he was sentenced by Barr J in this Court, to imprisonment for 18 years to date from 14 November 1992 and to expire on 13 November 2010. Barr J fixed a minimum term of 13 years and 6 months. Her Honour noted that the applicant, although eligible for release on parole in May 2006, in fact was not released to parole until 13 May 2009. Her Honour noted that this previous criminal history did not entitle the applicant to any leniency. She noted that he was not to be punished again for that earlier offence. However, properly, her Honour noted that the fact that the applicant had again committed offences of such violence against his wife, with whom he had children, demonstrated that “… little, if any, rehabilitation had taken place in respect of such offences”.

25. Her Honour concluded that the applicant had displayed a sense of entitlement towards his domestic partner, here the victim, and a continuing disregard for the law in that respect.

26. Her Honour noted that the applicant had an unremarkable family background and upbringing, that he had received good references with respect to his work since being released from prison and that he continued to have family support.

27. Her Honour noted that that the applicant maintained his innocence and, accordingly, that there was no evidence of remorse, nor insight into his offending. Her Honour noted her view that the applicant had given deliberately false evidence before the jury. She regarded him as an astute and cunning man.

28. Her Honour noted that, notwithstanding the over two-decade period which had elapsed between the applicant offending in October 1992 and when these offences had taken place, for the vast majority of those years, the applicant had been in custody. She regarded it as disturbing that the applicant had again committed offences of violence against his wife. Her Honour said this:

“All of these factors have a negative impact on the likelihood of the offender reoffending and his prospects of full rehabilitation, which in my view are guarded. However, given the inevitably lengthy sentence that the offender must serve, both may improve as he ages.”

29. Her Honour noted and accepted the submission that the effects of custody during the COVID-19 period had been particularly difficult for the applicant because, in the 12-month period up to 25 October 2022, the applicant had been locked in his cell all day on 45 occasions. The Judge noted that there would continue to be such restrictions on prisoners for an unknown period into the future.

30. Her Honour declined to find special circumstances, as she was satisfied that the usual ratio would provide an adequate period for the applicant’s re‑integration into the community.

31. Her Honour proceeded to impose an aggregate sentence. She set out the indicative sentences which are contained on the table below, to which I have added for convenience the maximum penalty and standard non-parole periods which apply to the offences.

Count	Maximum Penalty	Standard Non-Parole Period	Indicative Sentence	Indicative Non‑Parole Period
1	14 years	7 years	6 years	4 years 6 months
2	14 years	7 years	8 years	6 years
3	20 years	10 years	12 years	9 years

32. Her Honour declined to indicate the standard non-parole period for any of the three offences for reasons which:

“include my findings as to the objective gravity of each offence and the more onerous conditions for prisoners during the pandemic”.

33. With respect to Count 3, the indicative non-parole period was only 1 year less than the non-parole period fixed by statute.

34. Her Honour then proceeded to identify the role of totality and other sentencing objectives in the process of instinctive synthesis to arrive at the aggregate sentence which she imposed as described at [3] above.

Applicable Legal Principles

35. As the proposed ground of appeal is that the sentence imposed is manifestly excessive, it is appropriate to briefly record the legal principles applicable to such an issue.

36. A judgment of this Court, of which I was a member, in Hughes v R [2018] NSWCCA 2, at [86], set out the relevant principles which are applicable when a manifest excess ground is advanced on an application for leave to appeal against sentence. Shortly put, we expressed the principles in this way:

1.   appellant intervention is not justified simply because the result arrived at in the Court below is markedly different from sentences imposed in other cases;

2.   intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing Judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

3.   it is not to the point that this Court might have exercised the sentencing discretion differently;

4.   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

5.   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

37. As well, the applicant relied upon comparable cases as indicating that the sentence was manifestly excessive.

38. On an application such as this some assistance can be obtained from looking at the sentence in previous cases involving the same or similar offences. But, because the individual circumstances of each case would be necessarily different, and must be carefully examined, caution should be exercised by a Court in considering sentences which are said to be comparable. Even if the comparative cases drawn to the attention of the Court appear to establish a range of sentences, those cases do not fix any outer limit for the imposition of rational sentences.

39. Comparative cases establish a record of what has occurred, but they do not fix the boundaries within which Judges exercising their discretion in the future are bound. As the High Court said in Hili v R [2010] HCA 45; (2010) 242 CLR 520 at [53]-[55]:

53    Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases.

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)

Submissions of Applicant

40. The applicant submitted that the aggregate sentence was manifestly excessive. Although he accepted that he could not appeal against the indicative sentence for Count 3, he nevertheless submitted that it too was manifestly excessive and must, therefore, have caused the aggregate sentence itself to have been excessive. Put differently, he accepted that the indicative sentence for Count 3 was not amenable to appeal but submitted that it provided a guide as to whether error had been established in relation to the aggregate sentence.

41. The applicant did not make any submission which suggested that the indicative sentences for Counts 1 and 2 were inappropriate or otherwise excessive.

42. With respect to Count 3, the applicant submitted that the aggravating factor, which was a feature of the offending, was a physical injury which, whilst not minor, was, as the Judge had correctly found “… at the lower level of actual bodily harm which can be occasioned”.

43. The applicant submitted that this was important having regard to the fact that an offence against s 61J of the Crimes Act covers a wide range of circumstances of aggravation which were listed in s 61J(2). He noted that such circumstances, included the infliction of grievous bodily harm, the use of a knife to threaten injury, committing the offence whilst in custody and committing the offence when a victim suffered from an intellectual disability, a cognitive impairment or a serious physical disability, all of which were considerably more serious than the aggravating feature in Count 3. The applicant noted that the standard non-parole period was applicable to offences involving these forms of considerably more serious circumstances of aggravation.

44. The applicant noted that the indicative non-parole period was only one year less than the standard non-parole period for the offence, which represents the period that, “taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”: s 54A Crimes (Sentencing Procedure) Act 1999.

45. As earlier noted, although the applicant pointed to what he submitted was an excessive indicative sentence with respect to Count 3, he accepted that the indicative sentence is not amenable to appeal but submitted that it may provide a guide as to whether error is established in relation to the aggregate sentence. In that respect, the applicant’s approach is correct: see JM v R [2014] NSWCCA 297 at [40].

46. The applicant submitted that having regard to the indicative sentence imposed with respect to Count 3, which although it did not involve any discount for any plea of guilty or other similar allowance, was less than the standard non-parole period provided by one year, the Court should conclude that, although not specifically so found, the Judge must have assessed the offence as being slightly less than the mid-range of offences of this kind.

47. The applicant then submitted that, having regard to that assessment, the fact that the circumstances of aggravation were found by the Judge to be at the lower end of the range of aggravating circumstances with respect to an offence against s 61J(1) of the Crimes Act, and the range of sentences to which attention has been drawn and which have been referred to earlier, the Court would conclude that the indicative sentence was manifestly excessive, and having regard to its significant role in the aggregate sentence, as a consequence the Court would conclude that the aggregate sentence was manifestly excessive.

48. The applicant largely relied upon comparable cases and sentencing statistics to support his submission that the indicative sentence was manifestly excessive. It is necessary to consider those cases.

Black v R [2013] NSWCCA 265

49. Mr Black was found guilty following a trial by jury of four offences contrary to s 61J of the Crimes Act and three further counts of indecent assault. Mr Black was sentenced to an aggregate term of 14 years imprisonment with a non‑parole period of 9 years and 6 months. With respect to the s 61J offences, he was sentenced to three terms of 6 years and one term of 7 years.

50. Mr Black sought to appeal on the basis of what was then generally known as a “Muldrock error”. There was no appeal by the Crown against the sentence.

51. Mr Black and the victim, who were both in their 40s, had a purely platonic relationship. The victim commenced a relationship with another person and told Mr Black that she did not want to see him again. She asked him not to come to her house. Notwithstanding that, Mr Black visited the victim’s house on two occasions prior to the offending.

52. The aggravating features of the offences against s 61J were that the victim was threatened by Mr Black using a knife, putting it to her throat and making threats to kill her if she screamed. The sexual assaults involved digital penetration, penile/vaginal intercourse and anal intercourse.

53. The sentencing Judge found that the s 61J offences were extremely serious, that the actions of Mr Black were premeditated without any thought given to the consequences for the victim, and that the experience was degrading and terrifying, causing the victim to fear for her life.

54. The sentencing Judge was unable to reach any definitive conclusion about Mr Black’s prospects of rehabilitation, although the Judge concluded that it was unlikely that Mr Black would reoffend. The sentencing Judge found that Mr Black’s ill health would have the consequence that the custodial sentence would be harsher for him. This resulted in a finding of special circumstances. All of the offences occurred on the one evening as part of a continuous course of conduct which was over a limited period of time.

55. The Court of Criminal Appeal found error but concluded that no lesser sentence was warranted in law.

56. I note that this decision preceded the decision of the High Court of Australia in Kentwell v R [2014] HCA 37; (2014) 252 CLR 601 which requires a court, where error is found, to embark on a full re-sentencing exercise.

57. The significance of this is that whilst error was found in a technical respect, the Court of Criminal Appeal held that it was satisfied that no unfairness or miscarriage had resulted, and formed a view that no lesser sentence was warranted as indicated. It did not embark on an exercise of resentencing the appellant.

SC v R [2019] NSWCCA 25

58. This case involved an application for leave to appeal against conviction and for leave to appeal against sentence.

59. With respect to sentence, there was an alleged error in the assessment of the gravity of offending and it was alleged that the sentences imposed were manifestly excessive.

60. The applicant, SC, was tried by jury on an Indictment which contained nine counts. The applicant was found guilty of three counts, one being an offence contrary to s 61J of the Crimes Act of aggravated sexual intercourse without consent. The element of aggravation was that the applicant inflicted actual bodily harm on the victim. SC was also found guilty of two counts contrary to s 59(1) of the Crimes Act of assault occasioning actual bodily harm.

61. The offence of aggravated sexual assault without consent occurred on one occasion over a relatively short period of time when, against the wishes of the victim, SC had anal intercourse with her. That intercourse led to an anal fissure, which is a superficial tear to the edge of the anus, caused by trauma. The sentencing Judge imposed an aggregate sentence of 10 years with a non‑parole period of 7 years and 6 months. Insofar as the offence against s 61J was concerned, the sentencing Judge indicated a sentence of 8 years with 6 years non-parole. The sentencing Judge found that the objective seriousness of the aggravated sexual intercourse without consent offence was slightly above the middle of the range of objective seriousness for offences of that type.

62. SC had no relevant criminal history, except for a minor offence which the Judge found did not “disentitle him from leniency”. His prospects of rehabilitation were found to be guarded in light of his failure to express remorse and his ongoing attempts to displace responsibility to the victim.

63. In considering whether the aggregate sentence was manifestly excessive, Adamson J (with whom Gleeson JA and Schmidt J agreed) concluded that it was not open to argument, having regard to the findings made by the sentencing Judge, that any of the three indicative sentences were in themselves, excessive. Her Honour concluded that the aggregate sentence, which contained a degree of accumulation, was well within the bounds of a sentencing judge’s discretion. Her Honour drew attention to the need for general and specific deterrence and denunciation, with respect to the offences.

R v SS (a pseudonym) [2022] NSWCCA 258

64. SS was convicted following a late entry of a plea of guilty to one offence of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act. The aggravating factor was intentionally inflicting actual bodily harm immediately before the offence. He was also convicted following a plea of guilty to one count of sexual intercourse without consent contrary to s 61I(1) of the Crimes Act. Two charges were placed on a Form 1.

65. An aggregate sentence of 8 years with a non-parole period of 4 years was imposed by the sentencing Judge.

66. The Crown appealed against that aggregate sentence, arguing a specific error with respect to the assessment of objective seriousness of one of the Counts, and that the sentence imposed was manifestly inadequate. The four offences all occurred in the course of one evening when, after their relationship had ended and the victim had moved out from the family home, she returned to the former family home to collect her child as part of shared custody and collect some of her personal belongings. After two assaults, at a time when the victim felt scared for her life and thought that SS was going to kill her, SS punched her in the left side of the face for the fourth time and caused her to lose consciousness. He then engaged in penile/vaginal intercourse. The injuries to the victim required an overnight stay in hospital and a surgical procedure to reduce displacement of the tempero‑mandibular joint.

67. After the offending, SS left the house and drove away at speed. He attempted to commit suicide by inflicting multiple deep wounds to his neck and right leg. He was treated in hospital. Whilst being treated in hospital, he suffered a stroke.

68. SS was a man who, at the time of offending, was 48 years old with no prior criminal history. He was 53 at the time he was sentenced. He had a history of employment and being involved in commendable community volunteering activities. He wrote a letter of apology to the victim which was tendered to the Court. He acknowledged the impact of his offending conduct on the victim and her extended family and told the Court that he was aware that his actions were “totally unacceptable”.

69. Prior to the offending, SS had attended upon a General Practitioner seeking assistance with his psychological distress occasioned by his failing relationship with the victim. A mental health care plan was set up and about a month before the offending, his mental condition appeared to have deteriorated. He was prescribed anti-depressant medication, and a low dose of another drug to assist with sleep, for a diagnosis of adjustment disorder with depressed mood.

70. An expert psychiatrist opined that SS had good prospects of rehabilitation and recommended treatment for depression and adjustment issues, including counselling and cognitive behavioural therapy.

71. The sentencing Judge found that SS had a reduced moral culpability for the offences. The sentencing Judge found that the aggravated sexual assault with consent offence fell just above the mid-range.

72. With respect to that offence, the sentencing Judge indicated a sentence of 7 years imprisonment with a non-parole period of 3 years and 6 months, which took into account a 5% discount for a plea of guilty.

73. The Crown appealed against the sentence on the ground that it was manifestly inadequate. The Court upheld the Crown appeal.

74. The Court considered that the aggregate sentence of 8 years with a non-parole period of 4 years “… failed to appropriately recognise the important principles of general deterrence and denunciation …” for the offending.

75. The Court upheld the Crown appeal that the sentence was manifestly inadequate.

76. The Court concluded that it should re-sentence SS. It imposed a term of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months. With respect to the aggravated sexual intercourse without consent offence, the Court indicated a sentence of 8 years and 6 months, with an indicative non-parole period of 5 years, which was reached after taking into account a 5% discount for the late plea of guilty. With the discount, the indicative sentence would have been about 9 years with a non-parole period of about 5 years and 3 months.

Submissions of the Crown

77. The Crown in response drew attention to the explanation provided in imposing the standard non-parole period. In her Sentencing Remarks, the Judge said:

“My reasons for not imposing the standard non-parole period for any of the offences have already been outlined, but they include my finding as to the objective gravity of each offence and the more onerous conditions for prisoners during the pandemic.”

78. The Crown submitted that, having regard to those remarks, one could not engage in the drawing of any inference as to what the Judge had assessed the objective seriousness of Count 3 to have been.

79. The Crown also submitted that in light of the approach of both parties during the proceedings on sentence, this Court would be reluctant to conclude that its own assessment of Count 3 should be that it fell within the mid-range of objective seriousness of offences of that type. The Crown submitted that this Court approach the consideration of whether there was manifest excess to be identified in the indicative sentence for Count 3 on that basis.

80. Given that the applicant had been sentenced upon conviction after trial, the Crown submitted that the identification of an indicative non‑parole period as being 12 months less than the standard non-parole period could not be said to be manifestly excessive.

81. The Crown did not accept that the decisions cited by the applicant were truly comparable and pointed to significant differences, particularly in the subjective factors applicable to each offender in those cases.

Discernment

82. Even though the offences provided for a standard non-parole period, the Judge was not obliged to assess the objective criminality with respect to each offence by reference to its place on a notional scale of seriousness for offences of the same kind.

83. Here, both counsel appearing at the sentencing proceedings submitted that the objective seriousness of Count 3 meant that it fell within the mid-range of offending. Her Honour did not reject those submissions explicitly, and it should be taken that her Honour was of the view that those assessments were not unreasonable. If she had rejected those submissions, her Honour would have been obliged to draw to the parties’ attention that view and give them an opportunity to make further submissions.

84. In any event, by reference to the facts which were found, the consequences of the criminal conduct upon the victim, and the features set out in [22] above, some of which impact upon the assessment of the objective gravity of the three offences, it ought not be readily concluded that her Honour was finding that objective seriousness of the offence in Count 3 was below the mid-range. It was open to her Honour to have found, notwithstanding that the injury actually inflicted was at a lower level than many seen in similar offences, that the offending was at or above the mid‑range. It is not necessary for this Court to itself make a finding about where the offending fell on the notional range, but the applicant’s argument that the Court should find that Count 3 was below mid-range cannot be accepted.

85. With respect to the comparative cases and sentences drawn to the Court’s attention by the applicant, none were submitted to be entirely on all fours with this case. One would not ordinarily expect that to be so.

86. I have not found the comparable cases cited by senior counsel for the applicant to have been of much assistance. The sentences reached are indicated and then imposed, after a consideration of all the facts including the objective facts of the offending and, the seriousness in all of the circumstances. As well, the subjective cases of each of the offenders were considered. Those subjective circumstances were quite different from those of the applicant here.

87. In this case, there was a particular reason why the aggregate sentence imposed, and the sentences individually indicated, may well be higher than other cases. Part of the material which the Judge had to consider was the applicant’s previous criminal record.

88. In March 1997, the applicant was sentenced to a term of imprisonment of 18 years with a minimum term of 13 years and 6 months by Barr J in this Court for the murder of his wife in her home in a most violent manner. That murder occurred in circumstances where there had been difficulties in the marital relationship between the deceased and the applicant which led to each of the parties to the marriage instructing solicitors and considering proceeding to a divorce. The surrounding circumstances included that, although the deceased would not agree to a divorce, the applicant wished to have a sexual relationship with the deceased’s sister, who also lived in the same house.

89. Her Honour drew attention to these facts and considered the Remarks on Sentence of Barr J. She then said this:

“The offender’s criminal history does not entitle him to leniency. Of course, he is not to be punished again for the earlier offence. However, the fact that he has again committed offences of such violence against the person with whom he had a marital relationship and children, demonstrates that little, if any, rehabilitation has taken place in respect of such offences.

The offender displays a sense of entitlement towards his domestic partner and a continuing disregard for the law in this respect.”

90. The applicant accepted that this approach was correct. I would add that the previous offence would also have the consequence that specific deterrence of the applicant, the protection of the community from the offender and the denunciation of his conduct relating to his recent convictions, each of which are objects of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act, assume significant weight in the determination of the appropriate sentence.

91. I accept, as submitted by the applicant, that consideration of the sentencing statistics demonstrates that only a small number of offenders had received a higher head sentence than the indicative sentence for Count 3 and that, again, only a small number of offenders had received a higher non-parole period than that indicated by her Honour.

92. However, the totality of the circumstances, the deliberate nature of the conduct in which the applicant engaged, the fact that he could have been under no misapprehension as to the victim’s refusal to consent to the conduct, where the conduct occurred and the time of night at which it occurred, the length of time over which Count 3 continued, the nature of the offending being that it arose in the context of a domestic relationship, and against the background of his previous offence of murder (an offence involving serious personal violence, as did this offence), all combine to demonstrate that, whilst the aggregate sentence could not be regarded as lenient, and may be higher than a sentence that some other Judges may have imposed, it nevertheless fell within the discretionary range available to the Judge in this case.

90. It certainly, in my opinion, did not involve a manifestly excessive sentence such as to indicate an error of law on the part of the Judge.

91. Although the applicant has failed to persuade me that any appeal would succeed, the matter was fully argued and could not be said to have lacked any substance. On that basis, I would grant leave to appeal.

92. Accordingly, I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

96. N ADAMS J: I agree with Garling J.

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Decision last updated: 24 February 2025