R v David Lee Garrett Nos. SCCRM 95/619 and SCCRM 96/9 Judgment No. 5652 Number of Pages 13 Criminal Law Evidence Propensity Evidence

[1996] SASC 5652

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL DOYLE CJ(1), MILLHOUSE(2) AND WILLIAMS(3) JJ

CWDS
Criminal law - evidence - propensity evidence - Crown case that Garrett had trapped F into being handcuffed, and had then detained her and raped her - Garrett denied possession or use of handcuffs - evidence adduced by prosecution relating to possession of keys or handcuffs at various times - evidence admissible in each case as relevant to proof of the offence in issue, although only of slight relevance - evidence not to be excluded as character evidence - evidence did not disclose or rely on a relevant propensity - other complaints also dismissed. Pfennig v R (1995) 69 ALJR 147; R v Turney (1990) 52 SASR 438; Cleland v R (1982) 151 CLR 1, applied. Thompson and Wran v R
(1968) 117 CLR 313; Thompson v R (1918) AC 221, distinguished.

Criminal law - sentencing - previous offences meant great weight to be given to deterrence and community protection - no mitigating factors - heavy sentence not manifestly excessive.

HRNG ADELAIDE, 18 March 1996 #DATE 29:5:1996 #ADD 4:7:1996

Counsel for appellant:     Mr C Kourakis

Solicitors for appellant:    Caldicott and Co

Counsel for respondent:     Mr S McEwen

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 DOYLE CJ The appellant was convicted upon the verdict of a jury. He was convicted upon two counts of rape, one count of detaining with intent to have sexual intercourse and one count of threatening life. The victim in relation to each offence was F, a woman of 23 years.

CIRCUMSTANCES OF OFFENCES
2. To understand the arguments advanced on appeal it is necessary to have an understanding of the circumstances of the offence.

3. The appellant and F were known to each other. They became friendly and a sexual relationship developed. They took up residence together. They lived together on a farm at Tarcowie, a small country town, from about December 1993 until early February 1995.

4. F had decided that she wanted to end the relationship, and so in February 1995 she returned to her father's home to live. F and the appellant remained friendly and saw each other from time to time. On two or three occasions she visited him at the farm at which they had lived together, and on one of these occasions consensual sexual intercourse occurred. The events in question occurred on 17 April 1995, about one month after the occasion on which consensual sexual intercourse took place.

5. F said that she was driving to her father's home that morning, having finished work on a night shift. She came across the appellant walking along the road. The appellant knew where she worked, could have known what shift she was working and would have known the route she usually took home. He told F that his car had broken down. She then drove him to the farmhouse where they had lived together. On the prosecution case, this was a trap set by the appellant. Having got her to the house the appellant got F to agree to being handcuffed by a trick which need not be explained. Having done that, he detained her at the house against her will. He raped her twice. He struck her and mistreated her when she attempted to get free. He threatened to kill her, and behaved in a manner that must have made that threat seem very real. These events occurred over a period of some hours on the morning in question. The farmhouse was relatively isolated.

6. On two occasions people came to the property looking for F but the appellant had hidden her car in a shed. The appellant made F stay quiet in the house, and on each of the occasions referred to, the people who came to the property left again. In circumstances which need not be explained, the police came to the house, and at about this time the appellant allowed F to speak to her father by telephone. By a combination of persuasion and threats and promises, the appellant had persuaded F not to complain about what he had done to her, and so initially what F said was that she had gone to the appellant's house but had not wanted anyone to know that she was doing so. F told her father that she had gone there to see the appellant but had fallen asleep. F then returned to her father's home. Later that day some things happened at her father's house which made her believe that the appellant had been there. She became alarmed and she then contacted the police and told them what had in fact happened. F had suffered some relatively minor injuries which were consistent with her story, although in no sense decisive.

7. The thrust of the defence case was along the following lines. The appellant said that this was a pre-arranged meeting between him and F. He said that his car had broken down some distance from his farmhouse, but that he had already walked home when F arrived. He said that F's car was put in a shed to prevent gossip if it was seen by passers by. The appellant said that intercourse occurred but that it was consensual. He denied altogether that he had mistreated F in any way, and denied possessing or using handcuffs. He said that when the police came to the house F was sheepish and apologetic because her failure to inform her father of her whereabouts had resulted in him becoming alarmed and the police looking for her. That was why she had appeared upset and a little distressed at the time.

8. The two policemen who went to the appellant's farmhouse variously described F as at the time seeming upset, embarrassed, sheepish, with untidy clothing and looking as if she might have been crying. They confirmed that the appellant told them that what had happened was a discreet rendezvous between the appellant and F.

9. At trial the primary issue was that of consent, there being no dispute that intercourse had taken place. Related to that, but more or less indistinguishable from it, was the issue of whether F was detained at the farmhouse against her will and whether the appellant threatened F's life.

10. Detective Gore gave evidence that about five months after the alleged offences he was given a key ring with a number of keys attached. On testing, he found that one of these keys opened the doors of the appellant's car, another opened the petrol cap and another opened the door to a room apparently occupied by the appellant at his father's house in Adelaide. Detective Gore gave evidence that in the appellant's car in a bag he found two pairs of handcuffs and four keys to those handcuffs. He further gave evidence that one of the keys on the key ring already referred to fitted the handcuffs. The key ring and the keys were tendered as exhibit P8.

11. Evidence at the trial established that the handcuffs and the keys found in the car had been purchased in Adelaide only a day or two before they were found by Detective Gore. The appellant said that he had bought them as a birthday present and as a practical joke for his son and his son's girlfriend.

12. As to the key ring P8, the appellant said that he had acquired the car in question a few months before from a friend, and by implication that the friend delivered to him the keys to the car on a key ring. As to the handcuff key on P8, he said that he did not recall having seen it before and could not say whether it was or was not there when he acquired the car. He said that he had not put it on the key ring. He said that he was not aware of the handcuff key being on P8.

13. The appellant was arrested by police and charged with the alleged offence on 18 April, the day after the events in question.

EVIDENCE OF MRS CHANTRELL ABOUT THE USE OF HANDCUFFS
14. The appellant was released on bail after being charged. He went to stay with Mr and Mrs Chantrell for several days after his release. He was friendly with them, and they also knew F.

15. In the course of conversation within a day or two of the offence the appellant told Mrs Chantrell that he had been charged with unlawfully detaining F. He also told Mrs Chantrell that they had made love, and described the events in question briefly but in a manner consistent with his defence. In the course of that conversation, or in some way related to it, he told Mrs Chantrell that F was "... kinky or had a fetish about handcuffs ...".

16. On appeal, it was argued that this evidence should have been excluded because its prejudicial effect outweighed its probative force.

17. I reject that submission. The appellant said that he did not own handcuffs at the time of the alleged rape and had not ever used handcuffs for sexual purposes or at all with F. In my opinion, evidence of what he said to Mrs Chantrell was relevant because it could lead the jury to conclude that the appellant had used handcuffs for sexual purposes with F. In my opinion, there was nothing unfairly prejudicial about this evidence, and the judge was right not to exclude it.

EVIDENCE OF MRS CHANTRELL ABOUT A HANDCUFF KEY
18. Mrs Chantrell also gave evidence that in a telephone conversation with F about what happened on the Monday, F had said something to Mrs Chantrell on the topic of handcuffs. As a result of that, Mrs Chantrell decided to see whether the appellant had a handcuff key with him. Mrs Chantrell got some handcuffs which she and her husband had, the handcuffs having been used on Mr Chantrell at his "buck's party" some ten years before. Mrs Chantrell told the appellant that she had the handcuffs but could not unlock them and asked him if he had a key. She said that he went to the room in which he was staying, came back with a number of keys on a key ring and that with one of those keys she was able to unlock the handcuffs. She described the key as having a clover leaf top.

19. On the evidence at trial, if it is clear that the key described by Mrs Chantrell was not the key on P8, nor, obviously enough, was it one of the keys found in the appellant's car with handcuffs some five months later.

20. Complaint was made on appeal that the jury was told of the conversation between Mrs Chantrell and F, the complaint being that the manner in which Mrs Chantrell referred to the conversation conveyed the inference that F had complained to Mrs Chantrell about the use of handcuffs. The conversation was admissible only to the extent that it established the setting in which Mrs Chantrell got the appellant to produce a handcuff key. It could not be used to prove that the appellant had handcuffs in his possession or that he had used them on F. In directing the jury His Honour did not tell them that the use of the evidence was limited in this way. But in my opinion, nothing turns on that.

21. The jury knew that F had complained to the police about the appellant's conduct and about the use of handcuffs before the conversation with Mrs Chantrell took place. It follows that the inference that F made a similar complaint to Mrs Chantrell was not something new. Nor do I think there is any real risk that in this case the jury would have reasoned that the conversation with Mrs Chantrell made it more likely to be true that the appellant had used handcuffs on F. The portion of evidence complained of was very brief and seems to have received little or no attention thereafter. His Honour was not asked to give the jury a direction on the point. Being satisfied that there was no realistic chance that the jury misused the evidence, I would reject this complaint.

22. There was a further complaint that this evidence had been disclosed late in the piece to the defence, as it had been, and that the defence had inadequate time to investigate the evidence. The circumstances under which this came about do not matter. This issue was thoroughly considered by the trial judge at the time. In the end, he adjourned the trial for several days to allow the defence to investigate the matter. The defence were permitted to examine Mrs Chantrell on the voir dire about the matter. Other steps were taken to assist the defence. In my opinion, the trial judge did everything reasonable to give the defence a fair opportunity to deal with this late emerging evidence.

23. On appeal, no specific prejudice was identified, the complaint being of the possibility that with more time something might have been turned up which was adverse to Mrs Chantrell's credibility on this point. It seems to me that the trial judge did all that could reasonably be expected of him. I am not satisfied that any miscarriage of justice occurred as a result of the prosecution being allowed to lead this evidence. I would reject this complaint.

EVIDENCE OF DETECTIVE GORE ABOUT P8 AND HANDCUFFS
24. I have already summarised the effect of the relevant evidence given by Detective Gore.

25. When objection was taken to the admissibility of the evidence about the finding of the handcuffs and the keys in the appellant's car, the matter was dealt with on the basis that the defence had evidence, as indeed it did, that the handcuffs and keys had been purchased in Adelaide only a few days before they were found by Detective Gore. Evidence to that effect was led in due course and was not disputed by the prosecution. It follows that the handcuffs and keys found in the car could not have been used on F.

26. As to P8, Mrs Chantrell gave evidence that the handcuff key on P8 was not the key which the appellant used to unlock the handcuffs in her possession. The effect of her evidence was that the bunch of keys comprising P8 was not the bunch of keys which she had seen.

27. No separate objection seems to have been taken to the admissibility of P8. On appeal the matter was approached on the basis that the admissibility of P8 stood or fell with the admissibility of the evidence of the finding of the handcuffs and keys in the appellant's car.

28. The trial judge ruled that the evidence of Detective Gore was admissible:
    "The fact that the accused had handcuffs in his possession
    is logically probative of the fact that he had handcuffs in
    his possession on 17 April 1995. It indicates that the
    accused is not unaccustomed to having handcuffs, or that he
    is inclined to purchase them."

29. He went on to say:
    "The evidence is capable of supporting the evidence of the
    complainant - even though it is not corroborative in the
    strict sense - that handcuffs were used on the occasion
    alleged. It would place a great strain on human credulity
    if it were contended that the complainant had lied or was
    mistaken about handcuffs used on the occasion in question,
    or that another witness, Mrs Chantrell, had lied or was
    mistaken about the appellant telling her that he used
    handcuffs on the complainant on several occasions, despite
    the fact that he had handcuffs in his possession in late
    September."

30. His Honour also considered whether the evidence should be excluded under what is sometimes called the similar fact rule. He doubted whether that rule extended to evidence of conduct which, while not criminal, was discreditable. But in any event, he concluded that there was nothing criminal or discreditable about possessing handcuffs, because generally speaking they were used for innocent purposes. There was no basis to exclude the evidence as suggesting any bad character on the part of the appellant.

31. The first question is whether the evidence was relevant.

32. The prosecution sought to prove that the appellant was in possession of and used handcuffs in April in the manner alleged by F. The appellant denied that he possessed handcuffs at that time. The prosecution relied upon the evidence of F. It relied on two pieces of evidence from Mrs Chantrell, which evidence has already been summarised. It relied upon the fact that P8, the key ring which had been in the appellant's possession after the offence, included a handcuff key, although not the key seen by Mrs Chantrell. It relied upon the later purchase and possession of handcuffs in September. On appeal the prosecution stressed the combined effect of these items as together constituting proof of the possession of handcuffs in April.

33. Under the particular circumstances of this case, it seems to me that the key on P8 and the finding of handcuffs in the car in September could only be admitted if those items viewed in isolation supported the inference that the appellant had an interest in handcuffs or was a person likely to possess them. That seems to be how the trial judge approached the matter. In another part of his reasons he said that it was possible to infer from the later possession of handcuffs that the appellant was in the habit of having handcuffs in his possession.

34. To my mind, the link between P8 and the finding of the handcuffs in September and the possession of handcuffs in April is a slender one, particularly as it seems to have been common ground that the key which Mrs Chantrell saw was not the key on P8 and it was also common ground that the handcuffs found in the car were not purchased until just before they were found.

35. Although in my opinion the probative force of P8 and of the finding of the keys was not strong, I agree that there was a link there. It would, as the trial judge remarked, be an odd coincidence if F had lied that handcuffs had been used or Mrs Chantrell had lied or was mistaken, and yet there were two other independent pieces of evidence linking the appellant to the possession of handcuffs. Although I regard the link as not strong, I consider that the evidence was relevant.

36. It is important to understand, because of what comes later, that P8 and the finding of the handcuffs were not tendered as proof of a disposition or tendency to use handcuffs in the manner alleged by F, or indeed as proof of a disposition of tendency to do anything in particular with them. They were tendered in proof of the fact that the appellant had handcuffs in his possession in April. The proof of P8 and of the finding of the handcuffs disclosed a tendency or propensity on the part of the appellant to have handcuffs in his possession, but proof of that did not disclose any discreditable or criminal propensity or conduct. In my opinion, the judge was right to conclude that there is nothing unlawful or discreditable in the possession of handcuffs as such. Indeed, as the evidence of Mrs Chantrell demonstrated, people do have possession of handcuffs for quite innocent reasons. P8 and the finding of the handcuffs prove no more than that the appellant might be a person who had possession of handcuffs in April.

37. It follows from this that I reject the argument advanced on appeal that the evidence was irrelevant. But counsel for the appellant argued further that the evidence should have been excluded applying the principles most recently expounded by the High Court in Pfennig v R (1995) 69 ALJR 147. Those principles relate to the admissibility of "propensity" or "similar fact" evidence in criminal cases.

38. I would reject that submissions and there are several reasons why I would do so.

39. Despite the large number of cases on the topic it is not always easy to determine whether a given item of evidence falls within these principles. It is common in this area to talk about the "similar fact" rule. That expression is misleading. It is misleading for two reasons. First, because what is in issue here is an exclusionary rule, which is subject to an exception, or, one might say, an inclusionary rule in certain situations. One of those situations is so called "similar fact" evidence. To identify the rule in terms of one of the leading exceptions to it is confusing and tends to conceal the underlying rationale of the rule. Secondly, the description is all the more misleading because it identifies the exclusionary rule by reference to what is only one of the exceptions and so is likely to be productive of further confusion.

40. A useful statement of the relevant principle is to be found in Cross on Evidence (Australian Edition) para 21001:
    "It (the similar fact rule) is used here to connote that

    part of the law of evidence concerned with the rule which
    prevents a party, usually the prosecutor, from leading in
    chief evidence showing the discreditable disposition of the
    other, usually the accused, as derived from the
    discreditable acts, record, possessions, or reputation of
    the latter."

41. A footnote to this passage explains that "disposition" means "a propensity to act, think or feel in a particular way". In my opinion this passage rightly identifies the underlying principle of the exclusionary rule. It excludes evidence disclosing or used to establish a discreditable tendency to act in a particular way. The same point was made by McHugh J in Pfennig v R (1995) 69 ALJR 147 at 174:
    "The character and tendencies of a person are relevant in
    determining whether that person had committed the crime with
    which he or she is charged. But as a matter of policy the
    law generally excludes evidence of other incidents that
    reveals the criminal or discreditable propensities of the
    accused. Various reasons have been put forward to justify
    this exclusion. One reason is that it creates undue
    suspicion against the accused and undermines the presumption
    of innocence. Another is that tribunals of fact,
    particularly juries, tend to assume too readily that
    behavioural patterns are constant and that past behaviour is
    an accurate guide to contemporary conduct. Similarly,
    '(c)ommon assumptions about improbability of sequences are
    often wrong' and when the accused is associated with a
    sequence of deaths, injuries or losses, a jury may too
    readily infer that the association 'is unlikely to be
    innocent'. Another reason for excluding the evidence is
    that in many cases the facts of the other misconduct may
    cause a jury to be biased against the accused ..."

42. It is not altogether clear whether the exclusionary rule focuses upon the nature of the evidence covered by the rule, or upon the way in which that evidence is used: Palmer "The scope of the similar fact rule" (1994) 16 Adel L Rev 161 at 163.

43. In the present case, the handcuff key on P8 and the evidence of the finding of the handcuffs and keys in the car in September were a means of proof that the accused possessed handcuffs in April. While it could be said that this was propensity evidence, in the sense that it was evidence of a propensity to own handcuffs, one would not normally describe it as propensity evidence in the sense used in Pfennig v R (supra). This was simply evidence from which one could conclude that the accused had owned handcuffs at an earlier time. It was in no sense evidence which disclosed a propensity to commit the crime with which the accused was charged. To say that is not to overlook the fact that it was a step in the chain of proof of guilt. But the evidence did not disclose anything at all about the propensity of the accused in relation to the use of handcuffs. Nor, if it be relevant, was there any attempt by the prosecution to use it in this way. The prosecution case was no more than that this evidence made it more likely that the accused possessed handcuffs in April.

44. In my opinion, the exclusionary rule does not apply to the evidence in question. In brief, for the reasons which I have endeavoured to indicate, it is my opinion that this was evidence which did not disclose any relevant propensity nor was it used in proof of any relevant propensity. Its admissibility, therefore, did not fall to be tested according to the rule.

45. If I am wrong in that I would, nevertheless, adhere to my conclusion that the exclusionary rule does not apply for the reason given by the trial judge when he made his ruling. If there is one thing about the exclusionary rule which is clear, it is that it relates to evidence disclosing or used to establish some criminal or (subject to a point to be made later) discreditable propensity or disposition or, at the least, bad character. In my opinion, the judge was right when he concluded:
    "There is nothing either criminal or discreditable about
    possessing handcuffs. They are used, generally speaking,
    for innocent purposes."

46. It is important to remember that the relevant evidence was not evidence which disclosed or suggested anything about the manner in which the accused might use handcuffs, let alone disclose or suggest a discreditable use of handcuffs. Proof of the possession of handcuffs in September or in April was not the proof of something discreditable. The possession of handcuffs is, in itself, a neutral thing. To so conclude is not to overlook the significance in the context of this case of handcuffs. But in my opinion it would be fallacious to reason that because in this particular case it was alleged that handcuffs were used in the course of the commission of crimes, that proof of the possession of handcuffs became proof of something discreditable. I would distinguish the present case from, for example, evidence of the possession of safe breaking tools or other items, the mere possession of which, or the possession of which in a particular context, was suggestive of something discreditable or bad character: cf Thompson and Wran v R (1968) 117 CLR 313 dealing with the possession of implements for opening and breaking into safes, and Thompson v R (1918) AC 221 dealing with evidence relating to the possession of powder puffs and indecent photographs in a case in which a man was charged with acts of gross indecency with boys.

47. There is a further reason for rejecting the submissions of the appellant on this point. In R v Turney (1990) 52 SASR 438 at 441 King CJ said:
    "I am not aware of a case in which evidence of conduct,
    which does not amount to a criminal offence or does not
    disclose a disposition to commit a criminal offence, has
    been excluded by reason of the application of the
    exclusionary rule. It is not necessary to decide the point
    finally in the present case but I see no reason to depart
    from the observations on this point which I made in R v Von
Einem (1985) 38 SASR 207."

48. Cox J (at 442) agreed with the reasons of King CJ. Duggan J (at 443) noted that there was support for a wider view of the exclusionary rule. That view gains some support from what Mason CJ, Deane J and Dawson J said in Pfennig v R (1995) 69 ALJR 147 at 161A-B, and from what McHugh J said at 175B. Although not bound to follow the view which was expressed by King CJ in this case, I would not depart from it without the benefit of full argument on the point. Neither party chose to address to the Court full argument on the matter, counsel for the appellant contenting himself with a brief submission to the effect that the approach taken by King CJ should not be followed.

49. For all those reasons, I reject the submission that this evidence should have been excluded even though, as I have indicated, I myself do not regard it as particularly weighty. I do not accept that the prejudicial effect of the evidence outweighed its probative value. In my opinion there is no relevant or identifiable prejudicial effect distinct from the probative value. I should add that in summing up to the jury the judge made brief reference to the evidence now under consideration but such references treated the evidence as relevant to the fact of possession of handcuffs in April.

SUMMING UP
50. The appellant made a number of complaints about the judge's summing up.

51. A number of these complaints can be considered together.

52. The appellant complained that the summing up was unbalanced and unfair to the defence in that the defence case was not put to the jury as a whole. It is true to say that the judge, in touching on the facts, referred to the main aspects of the defence case, but at no stage put the defence case as a whole. Another aspect of this complaint is that the last page or two of the summing up focussed on points which were, by and large, adverse to the defence.

53. In considering this complaint it is helpful to remember what Gibbs CJ said in Cleland v R (1982) 151 CLR 1 at 10:
    "It is clear in principle that a trial judge, when directing
    a jury in a criminal case, must hold an even balance between
    the cases of the prosecution and the accused and must fairly
    direct the consideration of the jury to the matters raised
    by the accused in his defence. In what manner, and in what
    detail, this should be done must of course depend on the
    circumstances of each case."

54. Although the complaints are factually correct, in that there was no overall summation of the defence case and the concluding parts of the summing up were adverse to the defence, it is my opinion that the trial judge nevertheless discharged his duty. This was a case in which the defence story was clear and straight forward - a discreet rendezvous which went wrong when F's father became alarmed about her unexplained absence. The points made by the defence were clear and clearly identified and I do not consider that the failure to refer to all aspects of the defence case, or the failure to give an overall summation, meant that the summing up did not provide the jury with appropriate guidance or was not fair and balanced. The same applies to the concluding part of the summing up. Considerable latitude must be allowed to a trial judge in terms of style and approach, and none of the comments which the judge made went beyond what is appropriate. In particular, at the conclusion of the consideration of the defence case he stressed that he was merely trying to draw threads together and that the jury should not hesitate to reject any portions of it with which they did not agree. I would reject this complaint.

55. Complaint was also made that at the conclusion of the summing up the judge posed for the jury's consideration the question of what reason there would be for F to make up a story about the incident. Counsel for the appellant pointed out that it is unusual to put things this way, and that doing so might invite some assumption of the truth of F's story or might in some subtle fashion reverse the onus of proof. But I consider that the possible reasons for F to invent a story were so clear as not to need to be catalogued, and that in the context of the summing up as a whole the posing of this question was not inappropriate.

56. Complaint was also made that the judge did not remind the jury of the limited relevance of Detective Gore's evidence about finding the handcuffs, nor of the limited relevance of the handcuff key on P8. Nor did the judge remind the jury that the key on P8 was not the key which Mrs Chantrell had seen. As to the latter point, this was so evidently common ground at the trial that I do not think the jury needed to be reminded about it. As to the appropriate use of the evidence about the key on P8 and the evidence of Detective Gore, it seems to me that the way in which the judge touched on these matters put them in the right context because he did so in the context of the jury considering the likelihood of the appellant having been in possession of handcuffs. I do not think it was necessary for him to stress to the jury that this material was not to be used in any other way, because I do not consider there was any real danger that the jury would do so.

57. I have considered the summing up as a whole. It was relatively brief, but that is not a ground for criticism. It was to the point. It dealt adequately with all essential matters and while it may be said that the tenor of it was somewhat adverse to the accused, I do not consider that it was in any way unbalanced.

58. I would reject all of the complaints relating to the summing up.

SENTENCE
59. The judge imposed a single sentence in respect of all four counts. He imposed a head sentence of 25 years imprisonment and fixed a non-parole period of 20 years. The complaint was that this was manifestly excessive.

60. The judge rightly took the view that these were very serious offences. Rape is always a serious offence. Here it was combined with a cruel and frightening deception practised upon F. The detention of F over a period of time added to the seriousness of the matter. And the threats to her life, which must have seemed very real at the time, add further to the seriousness of the matter. Although the injuries inflicted upon F were not severe, the circumstances of the offences mean that each of them has to be regarded as a serious example of the kind of offence involved.

61. The appellant was 41 years of age when sentenced. The most significant aspect of his background was his previous record. He had been convicted in 1978 of rape and two counts of assault occasioning actual bodily harm. The victim of that offence was a woman with whom the appellant had been living in a sexual relationship for about a year. The appellant was sentenced to imprisonment for four years and three months.

62. As a result of incidents which occurred in June 1985 the appellant was ultimately convicted on three counts of rape and one count of assault occasioning actual bodily harm. Once again, the victim was a woman with whom the appellant had been living in a sexual relationship. The appellant was sentenced to seven years imprisonment with a non-parole period of six years.

63. As a result of certain events in 1986 the appellant was convicted of the offence of false imprisonment. On that occasion he threatened the victim and another with a knife and detained them. He was again sentenced to imprisonment.

64. As the judge said, there was a common element to the offences of rape for which the appellant had been convicted. In each the case the victim was a woman with whom the appellant had had a sexual relationship. In each case there had been an element of violence and an element of detention.

65. The judge had to sentence the appellant for offences which were, as I have already explained, of considerable seriousness. The appellant's history revealed the alarming fact that the appellant was a man who had not been deterred from offending by convictions and imprisonment for the very offence for which he was now convicted. There was the further alarming fact of the elements of similarity between the offences.

66. These matters made it clear that in arriving at an appropriate sentence, great weight had to be given to deterrence. It was also appropriate, in the light of the appellant's history, to consider the question of the protection of the community. The appellant is clearly a person from whom members of the community require protection. While protection of the public is an element of sentencing, it clearly cannot be given such weight as to lead to what becomes preventive detention.

67. It must also be said that there was nothing which could be put forward by way of mitigation. There was nothing in the circumstances of the offence or in the personal circumstances of the appellant to which one could point to reduce what was otherwise the appropriate sentence to be imposed. It should be mentioned that the appellant expressly declined to seek a psychiatric or any other report in relation to himself. The judge said, and he was clearly right, that there was a real likelihood that the appellant would offend again.

68. The sentence of 25 years' imprisonment was an extremely heavy sentence, but when one takes into account the seriousness of the offences, the appellant's record and what that disclosed, and the absence of any material to indicate that the appellant was ready to mend his ways, it is clear that a sentence of this order was appropriate. I do not consider that it can be said that the sentence was excessive. The judge was clearly aware of the need not to impose a sentence which amounted to preventive detention, and made the point himself that the protection of the community was not the only factor to which regard should be had.

69. I think it is appropriate to repeat the final portion of the judge's sentencing remarks, because they reflect the care which he took and, in my opinion, show that no complaint can be made about the approach which he took. He said:
    "This is a case where the protection of the community
    assumes a greater part in the sentencing process than it
    might in other cases. I emphasise what I hope is already
    apparent in these remarks, that the protection of the
    community is not the only factor to which I've had regard in
    imposing this sentence.

The purposes of criminal punishment are, it has been said,
    various. They are the protection of the community,
    deterrence of the offender and of others who might be
    tempted to offend, retribution and reform. The purposes
    overlap and none of them can be considered in isolation from
    the others. The weight to be attached to each will vary,
    according to the nature of the offence and the circumstances
    of the offender.

In weighing them all the court should not, if circumstances
    permit, overlook considerations of mercy. No matter how I
    search my conscience, I do not think it appropriate to order
    any shorter sentence than the sentence I am about to impose.
    As your existing record points to the conclusion that
    prospects of rehabilitation are remote, the non-parole
    period will represent a higher proportion of the head
    sentence than it might otherwise have done."

70. I have come to the conclusion that neither the head sentence nor the non-parole period were excessive and, accordingly, the appeal against sentence must be dismissed.

JUDGE2 MILLHOUSE J I agree that the appeal both against conviction and sentence should be dismissed.

JUDGE3 WILLIAMS J I agree.