R v Abdulla - [2011] SASCFC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ABDULLA
[2011] SASCFC 20
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
1 April 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Respondent convicted of anally raping an 11 year old boy - sentenced to seven years and nine months imprisonment with non-parole period of one year and nine months after three months credit for time in custody was allowed - Director of Public Prosecutions sought permission to appeal against sentence on the basis that the non-parole period was manifestly inadequate - whether permission to appeal should be granted - whether sentence was manifestly inadequate - effect of s 340 of the Criminal Law Consolidation Act 1935 (SA) - whether s 340 abolishes consideration of double jeopardy at all stages of a prosecution appeal or only at point of resentencing.
Held - appeal allowed (by majority) - sentence set aside and new sentence of seven years nine months with non-parole period of three years and nine months imposed - observations as to delay in sentencing.
Criminal Law (Sentencing) Act 1988 (SA) s 10(1), s 10(4); Criminal Law Consolidation Act 1935 (SA) s 340; Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA), referred to.
R v Stewart (1984) 35 SASR 477, applied.
R v Shrestha (1991) 173 CLR 48; R v Creed (1985) 37 SASR 566, discussed.
Everett & Phillips v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Mangelsdorf (1995) 66 SASR 60; R v Robinson [2004] SASC 189; Director of Public Prosecutions v Dinsley [2007] VSCA 31; Malvaso v The Queen (1989) 168 CLR 227, considered.

R v ABDULLA
[2011] SASCFC 20
Court of Criminal Appeal Gray, Vanstone and White JJ
GRAY J:

This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
Introduction
The respondent to this appeal, Gilbert William Vincent Abdulla, was found guilty by jury verdict in May 2009 for rape, contrary to section 48 of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offence were that the defendant between 24 January 2003 and 10 April 2006, at the cemetery at Gerard, South Australia, had anal sexual intercourse with a young male, without his consent.
On 15 November 2010, the trial Judge sentenced the defendant to a term of imprisonment of seven years and nine months. A non-parole period of one year and nine months was fixed. However, it is to be noted that both the head sentence and non-parole period were reduced by three months on account of time spent in custody and on home detention bail. Accordingly, the Judge considered that the defendant should be subject to a total period of imprisonment of eight years and a non-parole period of two years.
The complaint advanced by the Director was that the non-parole period of one year and nine months was manifestly inadequate and that this Court should interfere to maintain adequate levels of punishment for offences of this nature. It was said that the non-parole period was so far below the appropriate range of non-parole periods that it represented an error of principle and would “shock the public conscience”.
Background
At the time of the offence, the male victim was about 11 years of age. The defendant was about 19 years of age. The defendant and the victim were known to each other. They were both Aboriginal and resided at the Gerard Aboriginal Reserve. On the night of the offence, the defendant offered to drive the victim to a house to get some sugar. The defendant instead drove the victim to the local cemetery. The defendant took the victim out of the car, held him over the bonnet and anally raped him.
When he came to be sentenced, the defendant was 25 years of age. He was raised by his aunt and uncle. When the defendant was eight or nine years old he was raped on one occasion by an older male.
The defendant attended school until he was 15 years old and experienced learning difficulties. Intelligence testing conducted by Allen Fugler, a forensic psychologist, revealed that the defendant operated in the borderline intelligence range and in the lowest five percent of the general population. Despite this, the defendant had been gainfully employed at the Gerard Council for some time leading up to the time he was taken into custody.
At the time of sentencing, the defendant had been in a relationship with the same woman for over 10 years and was the father of five children. He was sentenced on the basis that he had no prior convictions as an adult. However, since committing the rape, the respondent had committed several relatively minor offences. Shortly before he was sentenced, and some 17 months after he was found guilty following a trial, the defendant admitted to the offending.
The Approach of the Appellate Court
The Director will be granted permission to appeal if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or, if a sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”.[1] An error in the sentencing process may be inferred from a result that is manifestly unreasonable or plainly wrong, or by identifying the adoption by a sentencing Judge of an incorrect principle, or the giving of weight to some extraneous or irrelevant matter, or failing to give weight to some material considerations or making a mistake as to the facts.[2]
[1] R v Nemer (2003) 87 SASR 168 at [22]-[24]; R v Osenkowski (1982) 30 SASR 212 at 212-213. See further and generally Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321.
[2] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
The basis for the “rare and exceptional” test for Crown appeals lies with the principle of double jeopardy, as explained by the majority of the High Court in Everett:[3]
… An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed …
[footnote omitted]
[3] Everett v The Queen (1994) 181 CLR 295 at 299.
Earlier, in Malvaso, Deane and McHugh JJ noted that the Crown appeal against sentence:[4]
… represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy …
[4] Malvaso v The Queen (1989) 168 CLR 227 at 234.
Furthermore, the discretion of a sentencing Judge in fixing a sentence is not to be interfered with lightly. As King CJ noted in Osenkowski:[5]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform …
[5] R v Osenkowski (1982) 30 SASR 212 at 212-213.
Finally, an error must be identified before a sentence may be interfered with. As Kirby J explained in Dinsdale:[6]
… As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
[footnote omitted]
[6] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
Such error may be inferred from a result that is manifestly unreasonable or plainly wrong. However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[7]
[7] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340. See further the authorities on Crown appeals against sentence as set out in R v Marikar [2010] SASCFC 36.
The Application
The Court’s powers and duties on an appeal against sentence are set out in sections 353 and 340 of the Criminal Law Consolidation Act.
Section 353 relevantly provides:
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must –
(a)     if it thinks that a different sentence should have been passed -
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case – dismiss the appeal.
(5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
Section 340, introduced as from 3 August 2008 by section 5 of the Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA), provides:
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must –
(a)     impose the sentence that should have been imposed in the first instance;
and
(b)     order that the sentence -
(i)will be taken to have come into effect on a date before the date of the order;
or
(ii)     will take effect on a date on or after the date of the order.
The principle of double jeopardy has historically been taken into account by an appeal Court in all stages of the appeal process in relation to an appeal against sentence by the Director of Public Prosecutions. That is, double jeopardy has been taken into account when assessing whether permission to appeal should be granted;[8] whether an appeal should be allowed;[9] and, when considering the sentence to be imposed if that imposed at first instance is quashed, and the Court is resentencing the offender.[10]
[8] R v Marikar [2010] SASCFC 36 at [33-37]; R v Nemer (2003) 87 SASR 168 at [26]; Everett v The Queen (1994) 181 CLR 295 at 299; Malvaso v The Queen (1989) 168 CLR 227 at 234.
[9] R v Drewett (1983) 35 SASR 344 at 346.
[10] R v Mangelsdorf (1995) 66 SASR 60 at 71; Dinsdale v The Queen (2000) 202 CLR 321 at [62]; R v Elliott (2001) 121 A Crim R 254 at [96].
Notwithstanding its mandatory terms,[11] section 353(4)(a)(i) has been interpreted as still being subject to the application of the double jeopardy principle.[12] This has allowed the Court to resentence and impose a sentence which is in fact something less than or other than the sentence which the Court thinks ought to have been passed.[13]
[11] That is, by the use of the word “must”.
[12] R v Mangelsdorf (1995) 66 SASR 60.
[13] See for example R v Ivic [2006] SASC 8 at [56]-[57]; R v Robinson [2004] SASC 189 at [60]-[61] and [65]; R v Mangelsdorf (1995) 66 SASR 60 at 71. See also R v Meers (1998) 101 A Crim R 329 at 332-333.
The common law provides the Court, when resentencing, with the discretion to impose a different or lesser sentence than the sentence it thinks should have been imposed at first instance on a basis other than the principle of double jeopardy. This separate discretion is founded on notions of fairness or mercy.
On the hearing of the appeal, an issue arose regarding the effect, scope and interpretation of section 340 of the Criminal Law Consolidation Act, and in particular, its relationship to section 353(4) of the Act.
A purposive construction is the general approach to be taken to issues of statutory construction.[14] Further, it is settled that reference can be made to certain extrinsic materials in this inquiry, including second reading speeches.[15] The second reading speech relating to section 340 of the Criminal Law Consolidation Act, relevantly provides:[16]
Prosecution Appeals Against Sentence—Proposed Reform
The COAG Working Party concluded that although the courts have used the term 'double jeopardy' to describe the situation that a convicted person faces as a result of a prosecution appeal against sentence, the situation is different from the double-jeopardy faced by an acquitted person who again faces trial. An acquitted person who endures a retrial faces, for the second time, the prospect of being found guilty, whereas a convicted person enduring a prosecution appeal against sentence faces the less severe prospect that their sentence may be varied.
It is intolerable that prosecution appeals against sentence fail although the court is of the opinion that the sentence is inadequate. Although there can be no question of a court's micro adjusting sentences on appeal, equally, courts of appeal should not be affirming inadequate or erroneous sentences. The Bill therefore provides that, when a court is considering a prosecution appeal against sentence, no principle of sentencing double jeopardy should be taken into consideration by the court when determining whether to exercise its discretion to impose a different sentence, or in determining what sentence to impose.
This correction will not affect underlying principles that say:
that prosecution appeals against sentence should be rare;
that an appeal court will only intervene where error is shown; and
· that the court has a discretion to refuse to intervene even if error is established or to substitute a discounted sentence where re-sentencing does occur.
[14] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J); Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36]. A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[15] See for example K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [50]-[53] (French CJ).
[16] House of Assembly, Parliamentary Debates, Wednesday 13 February 2008, 2037 (The Honourable MJ Atkinson).
The second reading speech indicates that section 340 was designed to remove the issue of double jeopardy from consideration by the appeal Court. However, the words of the section make it clear that section 340 only imposes a duty on the Court at the point after the question of the grant of permission to appeal and the question of whether the appeal should be allowed, have been decided.
Section 340 precludes the Court from having regard to the “rule of law”, known as double jeopardy when resentencing. The words “Despite any other rule of law” should be presumed to have some work to do and should be given some meaning and effect.[17] In my view, the effect of section 340 is to remove from consideration any rule of law enabling a Court to impose, when resentencing, a sentence other than the sentence which the Court thinks ought to have been imposed at first instance.
[17] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
If sections 340 and 353(4)(a)(i) are read together, and given that it is to be presumed that section 340 has some work to do, that work, in my view, is to remove the Court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence. Of course, this does not arise until after the stage of permission to appeal, which stage is not, as earlier mentioned, subject to section 340.
As mentioned, section 340 of the Criminal Law Consolidation Act came into operation on 3 August 2008. Therefore, it came into operation after the defendant in the present proceeding committed the offence of rape, but before he was convicted and sentenced and before the prosecution instituted an application for permission to appeal the sentence.
In my view, section 340 should be construed prospectively as applying to any appeal proceedings instituted after 3 August 2008.[18] Accordingly, the section applies to the present proceeding. The amendment was intended to alter the existing law with respect to appeals against sentence. I agree with the submission of the Director, that the amendment did not operate to affect existing rights or obligations but operated to affect the way in which rights fell to be determined at an appeal against sentence. In this respect, the amendment is procedural in character.[19] Finally, a party does not acquire a right to a particular mode of procedure on appeal until such time as the occasion for the application of the procedure arises;[20] that is, when an application for permission to appeal is lodged.
[18] Compared with section 334 of the Criminal Law Consolidation Act 1935 (SA), which specifically provides for the retrospective operation of part 10 of the Act, which encompasses sections 331 to 339.
[19] See Rodway v The Queen (1990) 169 CLR 515 at 522-523.
[20] As a result, section 16(1)(c) of the Acts Interpretation Act 1915 (SA) does not preserve the right to the appeal procedure in force before the enactment of section 340 of the Criminal Law Consolidation Act 1935 (SA).
Consideration
The Director accepted that the head sentence of seven years and nine months imprisonment was at the higher end of the range of sentences normally imposed for an offence of the nature of the subject offending. However, it was pointed out that there was no appeal in respect of the head sentence by the defendant. As earlier mentioned, it was submitted by the Director that the non-parole period of one year and nine months was wholly inadequate and so low as to shock the public conscience.
The Director submitted that the offence of rape carries a maximum penalty of life imprisonment. It was said that although there was no tariff or standard for the offence of rape, it always is a serious offence and that in the present proceeding, the defendant’s rape of an 11 year old boy was very serious. Attention was drawn to section 10(1)(cc) and section 10(4) of the Criminal Law (Sentencing Act) 1988 (SA), and in particular, to the legislative edict requiring the Court to give paramount consideration to the need for deterrence in circumstances where the defendant’s offending was committed against a child. In these circumstances, it was contended that a non-parole period of one year and nine months was wholly disproportionate to the seriousness of the defendant’s conduct and, in particular, to the head sentence of seven years and nine months.
The Director accepted that the defendant had good prospects for rehabilitation and that there was only a limited risk of reoffending. The Director also accepted the defendant’s history of his own sexual abuse as a child. It was acknowledged that the defendant’s partner and five young children will be deprived of care and love while the defendant is in custody. However, it was said that none of these factors could justify the clear disproportion between the length of the non-parole period and the seriousness of the offending.

Counsel for the defendant submitted that although the non-parole period was merciful, it was justified by the particular circumstances confronting the sentencing Judge. It was contended that, properly considered, the non-parole period was not one that required this Court to intervene so as to establish and maintain an adequate standard of punishment for the offence of rape or to maintain public confidence in the administration of justice.
It was submitted that having regard to the circumstances of the offence, the head sentence was in the upper range of penalty. It was pointed out that, although the offence involved a child, it was not the worst type of rape; the offence was an isolated incident of relatively short duration and the offence was not accompanied by any extraneous violence or the use of an offensive weapon.
Further, attention was drawn to the observations of Doyle CJ in Major[21] that a sentence of five years imprisonment might be appropriate for a single offence of rape.
[21] R v Major (1998) 70 SASR 488 at 491.
As the head sentence is for a period greater than five years, the defendant has no automatic right to parole.[22] Accordingly, on the expiration of the non-parole period of one year and nine months, the defendant is entitled to apply for parole. It is then for the parole board to consider whether parole should be granted. In the event of a breach of parole, once granted, the defendant faces a return to prison to serve out the balance of the sentence. Such a penalty is a substantial penalty faced by a young man. It is a penalty that will operate to personally deter the defendant from further criminal conduct.
[22] Correctional Services Act 1982 (SA), sections 66 and 67.
Before addressing the length of the non-parole period imposed by the sentencing Judge, it is appropriate to set out the statements of King CJ in Creed[23] in which he outlined relevant factors to consider when fixing a non-parole period. He observed:[24]
…[I]n fixing a head sentence, a judge has to bear in mind the purposes for which sentences are imposed. The non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard both to the offence and the offender, and it must reflect the community's sense of justice, what in some of the cases is called "the moral sense of the community". For that reason alone the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.
In every case, but particularly in the case of serious crimes such as the present, it is necessary that the non-parole period, no less than the head sentence, operate as a deterrent to others who may be minded to commit similar crimes. It is necessary for the courts in fixing non-parole periods, just as in fixing head sentences, to convey a message to those who may be tempted to commit similar crimes, serious crimes, that the commission of those crimes will result in a period spent in prison of a sufficient duration to operate as a real deterrent. It is necessary, moreover, that the courts in fixing non-parole periods, no less than in fixing the head sentence, should make it clear that if there is repetition of crime, there will be no question of the punishment for the subsequent crimes being absorbed in that which is imposed for the earlier crimes, but that on the contrary the offender will have imposed upon him salutary punishment for the subsequent crimes also. The non-parole period, no less than the head sentence, must reflect the punitive, the deterrent, and also the preventive purposes of punishment. The preventive purpose of punishment requires that a serious offender be deprived of the opportunity of posing any further threat to the public for a period of time which the gravity of his conduct justifies.
…
…Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case. In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part. Nothing in the nature of a norm can be acceptable.
[23] R v Creed (1985) 37 SASR 566.
[24] R v Creed (1985) 37 SASR 566 at 568-569.
There are a number of factors relevant to the defendant that justify a low non-parole period. He was aged 19 years at the time of the offending. He is an Aboriginal man who was abused as a child. Notwithstanding the difficulties of his early life, he has done well when judged against his peers. Leaving aside the present offending, his criminal antecedents are minimal. He has a stable family relationship with his partner and five young children. He has cared and provided for his family. He has been in regular employment and has undertaken courses to qualify himself in that employment. This personal history supports the view that he has good prospects for rehabilitation. It also supports the view that he has done well in his community and will probably do well in the future. Once these matters are recognised, understood and known to the community, I do not consider that the sentence imposed would shock the public conscience or would in any way fail to maintain public confidence in the administration of justice. To the contrary, the sentence demonstrates the care with which sentencing discretions are exercised and in particular, in appropriate cases, with compassion and mercy.
One Further Matter
It is true that the time that has passed between the jury’s verdict in this matter in May 2009 and the sentence from which the Director presently appeals, is greater than might usually be the case. However, it is to be understood that this was an unusual case.
The defendant appealed against his conviction. The decision of the Court of Criminal Appeal, by majority, dismissed the appeal, the decision being handed down on 11 March 2010. This decision was the subject of a special leave application before the High Court of Australia, which application was refused.
A review of the Court file discloses that the matter came back before the sentencing Judge later in March 2010. Sentencing submissions were adjourned to allow time for a pre-sentence report to be arranged. Sentencing submissions continued on 5 August 2010, on which occasion the following exchange took place between counsel for the Director, counsel for the defendant and the Judge:
[Counsel for the defendant]: There is an appeal still on foot that I am told. I spoke with [counsel arguing the appeal] yesterday and I understand that there’s leave to appeal in the High Court and it is likely to be heard on 3 September. …
[His Honour]: I wasn’t aware of that and I had assumed the fact that there was no further appeal. I have taken the position having regard to the nature of the issue in this matter, that I would not sentence [the defendant] until his appeal had been exhausted. Whilst that’s a somewhat unusual step having maintained that position for what is now well over a year, I propose to continue to maintain that position.
[Counsel for the defendant]: …I am not sure that I can make any other submission with respect to his maintaining his innocence [during the appeal process] and the effect that that has. It does impact on his prospects of rehabilitation.
[His Honour]: He is hardly able to demonstrate contrition while there is an appeal.
…
[Counsel for the Director]: I am instructed to submit that the matter should proceed but I understand the point your Honour makes particularly in light of the particular issue in this matter. … Given what is before your Honour I certainly don’t oppose the matter being adjourned if that’s the course your Honour wishes to take.
[His Honour]: I acknowledge that it is not the usual course, this is an unusual matter.
[Counsel for the Director]: And the Director agrees with that.
The High Court matter was finalised in early September and the parties came before the sentencing Judge on 10 September 2010. Further appearances ensued in October 2010 where sentencing issues were resolved and a date fixed for sentencing, that date being 15 November 2010.
Although in the usual course, sentencing of persons who are awaiting determinations of appeals against conviction should not be delayed, this was not a usual case. In particular, an issue arising in the conviction appeal had the potential to affect the appropriate sentencing regime to which the defendant should be subject in light of the issue that arose in the trial regarding the defendant’s age at the time of the offending. As the discussion above demonstrates, it was accepted by the Director that this was not a usual case.
Conclusion
I would refuse the Director permission to appeal.
VANSTONE J: After a trial by jury in the District Court the respondent was found guilty of the anal rape of an eleven year old boy. He was sentenced to a term of imprisonment of seven years and nine months with a non-parole period of one year and nine months. Both periods had been reduced by three months on account of his having spent almost one month in custody and some time on home detention bail and simple bail.
The Director of Public Prosecutions now applies for permission to appeal against that sentence upon the ground that the sentence, and in particular the non-parole period, is manifestly inadequate.
Background
The sentencing judge found that the offence was committed when the respondent was about 19 years of age. He turned 19 in January 2004. At that time both the respondent and the victim lived at the Gerard Aboriginal Reserve. On the day of the offence they were at a house at the reserve in company with others. The victim was asked to go to another house to obtain some sugar and the respondent offered to drive him there. Instead, he drove the victim to a nearby cemetery, stopped the vehicle, took the victim from the car and, holding him over the bonnet, anally raped him. The victim’s evidence to the jury was that he was screaming and struggling in an effort to prevent the rape.
It appears that the victim did not report the offence for several years and a charge was not laid until July 2007. The jury’s verdict was delivered late in May 2009. At that point bail was not revoked. Apparently the judge took the view that he should not proceed to sentence until the respondent’s appeal to the Court of Criminal Appeal had been determined. Then, when the respondent made application for special leave to appeal to the High Court, the judge again delayed sentence. Principally for these reasons, submissions in mitigation of penalty were not heard until October 2010. On that day the respondent’s bail was revoked. On 15 November 2010 sentence was imposed.
At the time of the offending the respondent had not previously been convicted for any offence. Although he had appeared in the Youth Court for several offences, convictions had not been recorded. Since the current offence he was convicted for driving offences. It appears that, as an adult, the respondent worked for the Gerard Council doing manual work for a period. He has five children from a relationship with a woman spanning about ten years. Plainly, the loss of his support and role as a father to those children constitutes a heavy burden on his de facto wife and the children, the oldest of whom was aged seven years at the time of submissions.
Late in the period spanned by submissions made on the respondent’s behalf, and in October last year, the judge was told that the respondent now admitted guilt. It was put to the judge that this admission, albeit some seventeen months after the jury verdict, enhanced the respondent’s prospects for rehabilitation. It appears that the judge placed great emphasis on that admission. The judge was also told that the respondent had himself been raped as a young boy by an older member of his community. There was evidence before the judge that the respondent was of limited intellectual ability.
Arguments on appeal
In support of the application for permission to appeal, counsel for the Director of Public Prosecutions, Ms C Mealor, acknowledged that permission to appeal should only be granted in rare and exceptional cases: Everett & Phillips v The Queen (1994) 181 CLR 295. Counsel suggested that the non-parole period imposed in this matter was a departure from adequate levels of punishment for offences of this nature and was so low as to “shock the public conscience”: R v Osenkowski (1982) 30 SASR 212. It was put that in imposing a non-parole period as low as one year and nine months, the judge failed to ensure that the non-parole period bore a proper relationship to the seriousness of the crime. It was argued that the non-parole period failed to reflect both personal and general deterrence and that it failed to reflect sections 10(1)(ec) and 10(4) of the Criminal Law (Sentencing) Act 1988 which require the court to give paramount consideration to the need for deterrence where a sexual offence is committed against a child.
Counsel for the respondent submitted that the offence was not the most serious of its kind in that it was of relatively short duration, was an isolated incident, and was not accompanied by violence or the use of a weapon. She argued that there were compelling reasons of a personal nature for extending leniency to the respondent, in particular his young age at the time of the offence and his good record, together with good prospects of rehabilitation which were enhanced by his later acknowledgment of guilt. Counsel further pointed to the long period of time which had now elapsed since the respondent’s conviction and indeed since the offence itself. It was said that the head sentence imposed on the respondent was at the higher end of the available range for an offence of this type. Had it been lower the relationship between the head sentence and non-parole period would have been unexceptional.
Analysis
In my view this is a case where the Director of Public Prosecution’s application for permission to appeal should be granted and, furthermore, the appeal should be allowed. I consider this to be one of the rare and exceptional cases where the proper purposes of a prosecution appeal are served by such an outcome. A non-parole period of two years (before reduction for time in custody) against a head sentence of eight years for the anal rape of an eleven year old boy is not only manifestly inadequate, but is so low as to erode standards of punishment and to shock the public conscience.
It is without controversy that all factors bearing on the sentencing process are relevant at each stage of that process. In R v Shrestha (1991) 173 CLR 48, Deane, Dawson and Toohey JJ made this point (at 68-69):
All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time.
In their separate, dissenting, judgment, Brennan and McHugh JJ at 60, made a similar observation. In R v Stewart (1984) 35 SASR 477, King CJ, in fixing a non-parole period in relation to a person who had pleaded guilty to murder, approached the task on the basis that the relevant question was as follows. What is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventive purposes of punishment? Of course there is more scope, in setting a non-parole period, to emphasise matters related to the prospects of rehabilitation of the offender. But the processes of setting a head sentence and setting a non-parole period are integrally linked. The non-parole period is fixed in relation to the head sentence and it must reflect the punitive, preventive and deterrent purposes of punishment, just as does the head sentence. As King CJ (with whom Cox and Olsson JJ agreed) said in R v Creed (1985) 37 SASR 566:
The non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard both to the offence and the offender, and it must reflect the community’s sense of justice, what in some of the cases is called “the moral sense of the community”. For that reason alone the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.
These observations remain particularly apposite in cases where the court retains an unencumbered discretion in respect of setting the non-parole period. Where the mandatory minimum non-parole period is provided by statute, proportionality is achieved by application of the legislation. It is for these reasons that a non-parole period set within the proper parameters should always demonstrate an appropriate relationship to the head sentence.
In my view, leaving aside the exceptional case, a crime so grave as to attract a starting point of eight years imprisonment could not properly attract a non-parole period as low as two years. This was not an exceptional case. In my view it is necessary to grant permission to appeal, set aside the sentence and sentence afresh.
Sentencing afresh
The practice of this Court upon re-sentencing after setting aside a sentence on an appeal by the Director of Public Prosecutions has been to impose a sentence at the lower end of the appropriate range. That has been done in acknowledgment of the fact that the respondent has been exposed to a form of “double jeopardy” in terms of the sentencing process. Examples of this practice include R v Mangelsdorf (1995) 66 SASR 60 at 71 and R v Robinson [2004] SASC 189 at [60]-[61]. The same practice is followed elsewhere, for example, R v Clarke [1996] 2 VR 520.
As part of the Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008, the Parliament introduced s 340 of the Criminal Law Consolidation Act 1935. That Act came into operation on the date of its proclamation, being 3 August 2008. The section provides as follows:
340—Appeal against sentence
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a)impose the sentence that should have been imposed in the first instance; and
(b)order that the sentence—
(i)will be taken to have come into effect on a date before the date of the order; or
(ii)will take effect on a date on or after the date of the order.
The section which previously regulated the powers and duties of the court where an appeal against sentence was to be upheld, section 353(4), remains in force. It requires that if the court “thinks that a different sentence should have been passed” it must “quash the sentence … and substitute such other sentence as the court thinks ought to have been passed …”. It appears that the only material change, for present purposes, is the opening phrase of s 340 constituting the words “[d]espite any other rule of law”.
In my opinion this section applies to any appeal heard (or perhaps lodged) on or after it came into effect on 3 August 2008. There is no element of unfairness or revisionism in holding so, as the end result of applying it is the imposition of a sentence that “should have been imposed in the first instance”: s 340(a). Although the amendment is directed to the issue of sentence it is procedural in nature.
I turn to the effect of the section. In written submissions of the Director of Public Prosecutions furnished to the Court after the appeal was heard, it was suggested that the impact of s 340 is limited to removing consideration of double jeopardy at the point of re-sentencing. It was said that the section only imposes a duty on the court “at the point after the question of the grant of permission to appeal and the question of whether the appeal should be allowed have been decided.” It was put that the work of the new section is to remove the Full Court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence. It was argued that the section’s limited ambit flows from the plain words of the new section. Counsel for the respondent pointed to a change in the wording of the provision during its progress through Parliament and submitted that the final wording of the section lacks clarity, to the extent that a clear intention to abolish the operation of the double jeopardy rule in relation to prosecution appeals cannot be discerned.

As originally introduced into Parliament the new provision was as follows:
340-Court may impose more severe sentence on appeal by prosecution
Despite any other rule of law, if, on an appeal against sentence brought by the prosecution, the court is satisfied that the sentence should be quashed and a more severe sentence substituted, the court may substitute a more severe sentence even if, in so doing, the court may be exposing the convicted person to a form of double jeopardy.
These submissions can be read against the background of the Second Reading Speech made by the Attorney-General on 13 February 2008 (South Australia, Parliamentary Debates, House of Assembly, 13 February 2008, 2040, Michael Atkinson, Attorney-General) in respect of the provision. There, the Attorney-General made reference to Everett and the principles established by the High Court in respect of prosecution appeals and the impact of the rule against double jeopardy. He referred to the refusal of the Victorian Court of Criminal Appeal in Director of Public Prosecutions v Dinsley [2007] VSCA 31 to intervene to increase a sentence even though it had found that the primary judge had erred in principle and imposed a manifestly inadequate sentence. He referred to the increasing use of the court’s discretion to refuse to intervene to correct such sentences and to the tendency to discount the fresh sentences even when it did intervene. The nature and scope of the double jeopardy involved in re-trying an acquitted person was contrasted with that involved in merely imposing sentence afresh. The Attorney-General then said (at 2041):
It is intolerable that prosecution appeals against sentence fail although the court is of the opinion that the sentence is inadequate. Although there can be no question of a court’s micro adjusting sentences on appeal, equally, courts of appeal should not be affirming inadequate or erroneous sentences. The Bill therefore provides that, when a court is considering a prosecution appeal against sentence, no principle of sentencing double jeopardy should be taken into consideration by the court when determining whether to exercise its discretion to impose a different sentence, or in determining what sentence to impose.
This correction will not affect underlying principles that say:
•    that prosecution appeals against sentence should be rare;
•    that an appeal court will only intervene where error is shown; and
•    that the court has a discretion to refuse to intervene even if error is established or to substitute a discounted sentence where re-sentencing does occur.
The Honourable P Holloway, Minister for Police, who had responsibility for passage of the Bill in the Legislative Council, made the same speech in that House.
It is true that after the introduction of the relevant Bill and after the Attorney-General’s speech, the specific reference in the proposed section to double jeopardy was deleted. In explaining the deletion, the Minister for Police said:
The policy of the government on this point is clear, and it is that there is not a question of double jeopardy here, nor should the sentence be discounted. The court on prosecution appeals against sentence will interfere with the original sentence only in exceptional cases. It will interfere when there is some point of principle; it will interfere where there is manifest inadequacy; and it will interfere where the sentence is such as to shock the public conscience. These criteria are well established.
Once that initial threshold is reached, there should be no question of discount just because it happens to be an appeal. While the policy is clear, the way to deal with it in statutory words without unintended or unforeseeable consequences is not so clear. There are no successful models to follow.
The clause in the bill as introduced into the council received late comment. We have done our best to address those comments. This bill is proposed as a compromise wording.
(South Australia, Parliamentary Debates, Legislative Council, 9 April 2008, 2370, Paul Holloway, Minister for Police)
The Bill containing the provision as redrafted was later passed (South Australia, Parliamentary Debates, Legislative Council, 19 June 2008, 3454-5).
The critical issues raised by a prosecution appeal are first, whether permission to appeal should be granted and, second, whether the appeal should be allowed. That statement is consistent with the reasons of all members of the High Court in Everett. It is also consistent with the statement of Mason CJ, Brennan and Gaudron JJ in the earlier case of Malvaso v The Queen (1989) 168 CLR 227 at 233 that the question of “whether leave should be granted was … distinct from the question of the inadequacy of the sentence imposed at first instance”. The question of permission to appeal involves issues ranging beyond those involved in the merits of the appeal.
Speaking generally, if the court determines that permission to appeal should be granted, it then considers whether the appeal should be allowed, the sentence quashed and what other sentence should be imposed in its place. Although that process can be described sequentially, as I have just done, it is in fact an integrated process not readily susceptible of compartmentalising. The question of what new sentence would be imposed (if one were to be) is a fundamental question informing the decision whether or not the appeal should be allowed. As seen, the notion of double jeopardy has traditionally had an impact upon, not only the question of permission to appeal, but the process which follows the grant of permission.
Although the section in its final form does not refer to double jeopardy, I think it plain that the words “despite any other rule of law” must be taken to encompass it. The plain meaning of the other words of the opening clause of s 340 tends to a conclusion that the change effected in terms of prosecution appeals is to remove regard to the double jeopardy notion only at the point when consideration is to be given to the new sentence. I consider that this interpretation may, in many cases, involve an artificial distinction. However, that it is the correct interpretation is reinforced by the history of the progress of the provision through the Parliament.
As I have said, I would have set aside the sentence irrespective of the operation of s 340. Moreover, the section has a limited impact on the resentencing in this appeal because the Director’s appeal is targeted only at the non-parole period fixed in relation to Mr Abdulla’s sentence. There is no suggestion that a head sentence of eight years is manifestly inadequate or that upon re-sentencing a longer term should be set. Indeed here, in my view, the Director of Public Prosecutions could have made no complaint about the head sentence.
Conclusion
Having allowed credit of three months on account of time spent in custody and on bail, the judge imposed a head sentence of seven years and nine months. I would affirm that head sentence. I consider that a non-parole period of four years less the same period of three months on account of time in custody was appropriate in this case. That is a lower non-parole period than would usually be set in relation to a head sentence of eight years, but in this case there were factors justifying such an approach. I refer there particularly to the respondent’s young age at the time of the offence, to his good prospects of rehabilitation – enhanced by the support of his de facto wife and family – and his recent acknowledgment of the offence; also to his record of offending containing no serious offences.
Accordingly, I would make the following orders:
1.grant permission to appeal to the Director of Public Prosecutions;
2. allow the appeal;
3.set aside the sentence imposed by the judge;
4.impose in its place a head sentence of seven years and nine months imprisonment, with a non-parole period of three years and nine months to be taken to have commenced on 22 October 2010 when the respondent went into custody.
Observations in respect of the delay in this matter
With all respect to those concerned, I consider that the delay which has occurred in this matter between the time of the jury’s verdict in May 2009 and the sentence on 15 November 2010 is to be regretted.
While I can understand that the judge was not anxious to send this relatively young respondent to gaol while he had outstanding an appeal against conviction, that reticence has led to a most unfortunate lapse of time.
The delay in dealing with the matter is unfortunate for the victim of the offence, for whom this matter must have seemed to have dragged on interminably. The same might be said in respect of the community from which both the respondent and the victim come; it too must have found the delay in the matter intolerable. It is also most unfortunate from the viewpoint of the respondent himself. Had he gone into custody following the jury’s verdict he would have already served almost two years of his sentence. In addition, the delay is most unsatisfactory from the viewpoint of this Court. The matter has already come to this Court, differently constituted, as an appeal against conviction. Had sentence been imposed nearer to the time of trial then the Court could have dealt with both appeals in the one sessions. The expense incurred in prosecuting this appeal and in the respondent defending it and the need for this Court to convene afresh to consider it, could all have been avoided.
I would urge judges not to adopt a practice of delaying the sentencing of persons who have been found guilty at trial to await determination of appeals against conviction.
WHITE J. I agree with the orders proposed by Vanstone J and with her reasons.