McKay and R

The appeal concerned the sentencing of the applicant, McKay, by a Sentencing Judge in the Northern Territory. The applicant was convicted of two counts of rape against Ms D, an outreach worker assisting him with accommodation. The dispute on appeal centred on the severity and legality of the aggregate sentence imposed by the Sentencing Judge.

The grounds of appeal raised several legal issues for determination by the Court of Appeal. These included whether the Sentencing Judge erred in imposing an aggregate sentence, whether the sentence was manifestly excessive, whether the principles of general deterrence were incorrectly applied, whether the Sentencing Judge unlawfully took into account offences for which the applicant was not charged or acquitted, and whether the sentence infringed the totality principle.

The Court of Appeal considered the facts of the offending, which involved the applicant luring Ms D into a bedroom and, despite her resistance and distress, committing two separate acts of sexual intercourse without consent. The Sentencing Judge had found the offences to be of high seriousness, noting the applicant's use of superior physical strength and a pillow, and the significant ongoing harm suffered by the victim. The Court acknowledged the Sentencing Judge's finding that the applicant lacked remorse and that his mental state did not provide a mitigating factor. The Court also noted that the Sentencing Judge had considered the totality principle and had indicated that the case was a very bad example of its type, though not in the worst category. The Court ultimately dismissed the appeal, finding no error in the Sentencing Judge's approach to sentencing.