R v Driver - [2011] SASCFC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DRIVER
[2011] SASCFC 130
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
11 November 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence - appellant sentenced in respect of several offences to 16 years' imprisonment with a non-parole period of ten years - no reduction was made on account of totality - whether sentence was manifestly excessive in light of the mitigating factors put before the sentencing Judge such as the appellant's limited cognitive capacity, youth and lack of antecedents.
Held: Appeal allowed - sentences imposed by the sentencing Judge are set aside - appellant sentenced to one term of imprisonment in respect of all offending of 11 years and a non-parole period of five years and six months - sentences imposed by sentencing Judge were manifestly excessive - sentencing Judge failed to accord proper weight to the limited cognitive capacity, youth and lack of antecedents of the appellant - the Judge was in error in not applying the principle of totality to the total sentence imposed - discussion of the appropriate non-parole period.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 20B, s 23, referred to.
Muldrock v The Queen [2011] HCA 39; R v Mills [1998] 4 VR 235; R v Misokka [1995] VSC 215; R v Edwards (1993) 67 A Crim R 486; Hendy v Kraft (1991) 55 SASR 345; R v GDP (1991) 53 A Crim R 112; R v Randall-Smith (2008) 100 SASR 326; Cameron v The Queen (2002) 209 CLR 339; Reg. v. Portolesi [1973] 1 NSWLR 105, discussed.
R v Mooney (unreported, Supreme Court of Victoria, Full Court, 21 June 1978); Wilcox v The Queen (unreported, Supreme Court of New South Wales, Yeldham J, 15 August 1979); R v Smith [1964] Crim LR 70; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v Place (2002) 81 SASR 395, considered.

R v DRIVER
[2011] SASCFC 130
Court of Criminal Appeal: Gray, Sulan and Blue JJ
THE COURT:
Introduction

This is an appeal against sentence.
The defendant and appellant, Aiden Harvey Driver, was sentenced in respect of several offences to a term of imprisonment of 16 years, with a non-parole period of ten years’ imprisonment. The defendant complains that the overall sentence is manifestly excessive.
Background Facts
On 27 April 2009, at about 5.15 am, the complainant, who was awake in bed, heard the sound of glass shattering. The sound was caused by the defendant breaking into the house through the rear door. The complainant and her husband confronted the defendant, causing him to run away. In respect of this offending, the defendant pleaded guilty to aggravated serious criminal trespass in a place of residence.
On 16 May 2009, a different complainant returned to her home in the early hours of the morning. She had just gone to bed when she heard a knock on the front door. When she opened the door, there was no-one present. The complainant returned to her room and went to bed. She again heard knocking on the front door. She then heard someone at the back door of the house and heard the sound of glass breaking. She was frightened and telephoned a friend. As she was calling her friend and was about to open her bedroom door, the door was kicked in. The complainant saw the defendant coming towards her. He was wearing a mask. The defendant pushed the complainant on to the bed and subsequently grabbed and pushed her to the floor. She yelled. The defendant placed his hand over her mouth, pushed down on her throat and lifted her on to the bed. He forced the complainant to commit two acts of fellatio. The defendant then forced her on to the floor again and to have vaginal sexual intercourse with him. As this was occurring, she heard voices. The complainant managed to escape from the bedroom to where her friend was at the back door. The friend telephoned the police. The defendant fled. The police arrived shortly thereafter.
The complainant sustained physical injuries, including bruising to her shoulders and back. She feared for her life. She is now frightened at night and fearful that she may be attacked again. She suffers depression and panic attacks. She feels ashamed. She has not felt able to tell her family about the incident.
The events of 16 May 2009 gave rise to the offences of aggravated serious criminal trespass in a place of residence, assault causing harm and three counts of rape, being the two acts of fellatio and the act of vaginal sexual intercourse. The defendant pleaded guilty to each offence.
The defendant also pleaded guilty to two counts of indecent assault which arose from incidents occurring on 6 July 2009.
On that date, a third complainant was walking along the Linear Park track when she noticed a person behind her. That person was the defendant. The complainant began to jog to get some distance between her and the defendant. She saw the defendant again as she walked towards Lower Portrush Road. She stopped to allow the defendant to pass and, as he did, he grabbed her on the left buttock. The defendant fled. The complainant ran home. She now fears being out in public alone. She feels unsafe and isolated. She has trouble trusting people. She feels a loss of independence.
On the same day, a fourth complainant was walking along the Linear Park track when she saw the defendant walking towards her. They passed each other and, a few moments later, the complainant was grabbed from behind by the defendant. The defendant grabbed at her pants and dragged her to the ground. The complainant screamed. The defendant attempted to drag her towards the trees near the track. The complainant kicked the defendant, causing him to release her. He fled. The complainant continues to feel frightened when left alone in an empty house. She panics easily. The attack upon her was the day before her year 12 exams. Her results were less than she had anticipated.
The prosecution made an application, pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA) (“Sentencing Act”), as amended, for a declaration that the defendant is incapable or unwilling to control his sexual instincts. As a consequence, the matter was transferred to the Supreme Court. The Judge refused the application. A further application was made pursuant to section 20B of the Sentencing Act to have the defendant declared a serious repeat offender. The Judge also declined to make that order.
The Judge received reports from Dr Craig Raeside, Mr Mark Reid and Dr William Brereton. Dr Raeside summarised the position as follows:
Diagnosis
Based on the information available to me and from my interview with Mr Driver I was unable to find any evidence of a previous or current psychiatric disorder. However, I would be concerned about the possibility of some underlying cognitive impairment, possibly related to alcohol abuse. Nevertheless, the information suggests that his communication difficulties have been lifelong, aggravated by some degree of shyness, probably further aggravated by the nature of the charges against him.
Other than alcohol abuse I obtained no other history of other substance abuse apart from occasional marijuana.
Offending Behaviour
…
I also offered the opinion that Mr Driver was barely fit to plead, but would require considerable assistance.
In my view, Mr Driver’s offending clearly indicates limited ability to control his sexual behaviour. If he is shown to have marked cognitive impairment this would further strengthen his case. However, I would not suggest that he is totally unable to control and although his behaviour has been difficult to deter, it has been deterred by victims who have fought back, or dogs approaching him, etc.
Nevertheless, I would be strongly of the opinion that Mr Driver’s offending behaviour indicates that he is unwilling to control his behaviour and given opportunity reacts quickly and severely, immediately attempting to engage in sexual behaviour with the victim.
Dr Raeside considers the defendant to be a poor candidate to be involved in sexual behaviour clinics within a custodial setting, given his language and cultural issues and his possible intellectual impairment.
Mr Reid, a clinical psychologist, relevantly concluded:
In general, I would concur with the earlier conclusions that Mr. Driver does have a learning disability and that this is likely to be of longstanding, but the contributing factors are more in keeping with cultural issues and possibly emotional difficulties (shyness) and possibly hearing deficits in a classroom, rather than any specific cognitive impairments which could be attributable to any form of acquired brain injury, such as alcohol or other substance abuse. He is a man of below average intellectual ability, more evident in verbal intellectual tasks due to his limited formal education and unwillingness to engage in any verbal interactions throughout his lifetime.
There is no neuropsychological evidence at least within the constraints of this examination, which would suggest that Mr. Driver has any impulsive loss of control over his sexual urges or other forms of behaviour, including aggressive behaviour in general. I would support the comment of Dr. Raeside, namely that (“the behaviour is also suggestive of a pattern of spontaneous sexual aggression when an opportunity arises”), most likely with varying degrees of premeditation involved. Furthermore, I have no neuropsychological evidence to suggest that Mr. Driver is unable to control his behaviour, although there may be a degree of this in the context of his below average intellectual level, lack of social skills and underlying anger. It is these factors, rather than any underlying neuropsychological or cognitive disorder, which are likely to lead to reduced or poorly controlled behaviour, but not a total inability to control his behaviour.
Dr Brereton is also of the opinion that the defendant has limited intellectual functioning and that his communication skills are poor. Dr Brereton concluded that, although the defendant recognises that his offending is legally wrong, he has little appreciation of the effect of the offending on his victims. He considers that the defendant is a significant risk and if given the opportunity to sexually offend he would do so and he would not control his sexual instincts. Dr Brereton recommends a sex offender treatment program, but considers that the defendant’s ability to benefit from such a program is limited.
Dr Proeve, the manager of rehabilitation programs for the Department for Correctional Services, reported to the Court that the sexual behaviour clinic conducted within the prisons is an intensive rehabilitation program of three sessions per week over a period of six to nine months. Offenders undertake the program prior to their earliest release date. Dr Proeve is of the opinion, having read the reports of Dr Raeside, Dr Brereton and Mr Reid, that although the defendant might experience difficulties in engaging in the program, this would not preclude his participation.
The Approach of the Sentencing Judge
The Judge described the circumstances giving rise to each offence and the defendant’s personal circumstances. The Judge went on to observe that the defendant has difficulty controlling his sexual instincts. The Judge considered the defendant to be a danger to the community, especially women. The Judge stated that, in setting the sentence, he must give precedence to the protection of the community. Further, although it was noted that the defendant’s pleas of guilty came about one week before trial, it was accepted that this was due to his difficulties with communication.
In respect of the charge of aggravated serious criminal trespass in a place of residence on 27 April 2009, the Judge set a notional head sentence of two years’ imprisonment, reduced to one year because of the plea of guilty. No explanation was offered as to why a reduction as high as 50 per cent was made.
In respect of the aggravated serious criminal trespass in a place of residence, assault causing harm and the three counts of rape, committed on 16 May 2009, the Judge imposed one sentence, pursuant to section 18A of the Sentencing Act. He set a notional head sentence of 14 years’ imprisonment, reduced to 12 years having regard to the pleas of guilty. No explanation was offered as to why a reduction of about 14 per cent was made when compared with the earlier reduction of 50 per cent. He ordered that the sentence be served cumulatively with the one year sentence which was imposed for the 27 April 2009 offence.
As for the two counts of indecent assault which occurred on 6 July 2009, the Judge imposed the one sentence pursuant to section 18A of the Sentencing Act of four years’ imprisonment, but reduced the sentence to three years’ imprisonment, having regard to the pleas of guilty. Again, there was no explanation made as to the markedly different reduction to the earlier referred to reductions.
Accordingly, the total sentence imposed by the Judge was 16 years imprisonment. A non-parole period of ten years’ imprisonment was set. The Judge made no reduction on account of totality.
The Appeal
On appeal, counsel for the defendant did not point to a specific error in the Judge’s approach to sentencing. It was said that to impose a term of imprisonment on an 18-year-old of 16 years’ imprisonment with a non-parole period of ten years, while having regard to the defendant’s antecedents, is manifestly excessive and as such indicated that error must have occurred. It was contended that the defendant had limited cognitive capacity, had poor communication skills, was to be treated as a first offender and had only just attained his majority. These were said to be relevant mitigatory matters that could not have been properly addressed in the sentencing process.
Limited Cognitive Capacity
In Muldrock,[1] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, in a joint judgment, considered the exercise of the sentencing discretion in the case of a sexual offender when the victim was a young child. Muldrock was assessed as mildly intellectually disabled, functioning at a level lower than 99 per cent of the population. The Court observed:[2]
The assessment that the appellant suffers from a "mild intellectual disability" should not obscure the fact that he is mentally retarded. The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. "Significantly subaverage intellectual functioning" is defined as an intelligence quotient (IQ or IQ-equivalent) of about 70 or below. The position is well explained in a discussion paper published by the New South Wales Law Reform Commission:
"A person's intellectual disability can be classified as 'mild', 'moderate', 'severe' or 'profound', based upon certain IQ (intelligence quotient) ranges. A further category, 'borderline', is also used to indicate people just above the mild range in terms of intellectual functioning. A person with a 'severe' or 'profound' disability may be unable to learn basic social skills such as speech, walking and personal care, and is likely to require supported accommodation. The majority of people with an intellectual disability have a 'mild' level of intellectual disability and 'can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community.' These classifications have limited utility and can sometimes be misleading. For example, such terms may suggest to criminal justice personnel, who do not have a full understanding of the disability involved, that a 'mild' intellectual disability is inconsequential." (footnotes omitted)
[1] Muldrock v The Queen [2011] HCA 39.
[2] Muldrock v The Queen [2011] HCA 39, 11 [50].
The High Court approved dicta in Mooney,[3] where Young CJ remarked:[4]
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
[3] R v Mooney (unreported, Supreme Court of Victoria, Full Court, 21 June 1978).
[4] R v Mooney (unreported, Supreme Court of Victoria, Full Court, 21 June 1978) as cited in Muldrock v The Queen [2011] HCA 39, 11-12 [53].
The High Court observed that the retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.
The defendant’s limited intellectual capacity, as earlier outlined, is a matter which calls for careful consideration. On the one hand, it renders general deterrence materially less important. On the other hand, it may be a circumstance that calls for a greater need for the sentence to provide for personal deterrence. This latter consideration is directly linked to the defendant’s prospects of rehabilitation.
The evidence established that the defendant does have some prospects of rehabilitation. Those prospects will be assisted by close supervision together with appropriate treatment and counselling over a period of some years. This would suggest that the defendant would benefit from a longer than usual non-parole period. Such an approach would allow the Parole Board, at the time of the application for parole, to consider the defendant’s rehabilitative progress whilst in custody and what may be available by way of supervised parole to assist in his further rehabilitation. The Parole Board will be in the best position to assess the defendant’s progress and his fitness for release on parole and the terms to be attached to that release.
Notwithstanding the gravity of his crimes, the defendant is a person who has been disadvantaged in life. This is exemplified by his limited cognitive abilities. It is in the interests of the community that his rehabilitation be supported and encouraged. There will come a time for his release. Those concerned with his wellbeing in custody should have regard to these considerations.
In our view, the sentencing Judge gave insufficient weight to the defendant’s limited cognitive capacity.
Youth as a Mitigating Factor
Youth is generally treated as an important mitigating factor, particularly in the case of an offender as young as 18 years of age. Unsurprisingly, the Court’s consideration of youth in criminal offending is closely allied with issues of rehabilitation.
In Mills, the Victorian Court of Appeal relevantly observed:[5]
[Counsel for the defendant] submitted that in general terms the authorities established the following propositions:
i.      Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii.     In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.)
[Counsel], who appeared for the respondent, informed the court that he did not cavil with those propositions as general propositions. In my view, that attitude was correct: R. v. Martin [1973] V.R. 854 at 856; R. v. Seymour (1983) 5 Cr. App. R. (S) 85 at 87; R. v Smith (1988) 33 A. Crim. R. 95 at 97; R. v G.D.P. (1991) 53 A. Crim. R. 112 at 116; R. v. Edwards (1993) 67 A. Crim. R. 486 at 489 (a very strong case, albeit that it was a Crown appeal); and R. v. Misokka (unreported, Court of Appeal, 9 November 1995) at 6‑7 per Callaway, J.A. and at 10-11 per Vincent A.J.A.
[Counsel for the defendant] accepted that, for the purpose of determining whether the applicant was "youthful" within the propositions, the relevant date was the date of sentencing. By that date the applicant was 21 years of age and therefore no longer a "young offender" within s 3(1) of the Sentencing Act. He was also of full age in law. But those factors do not mean that he was not "youthful" for the purpose of the propositions, and a case such as Edwards (where the applicant was 22 years old at the date of the hearing of the application and at least 21 at the date of sentence) shows that the applicant is to be treated as youthful in the application of the above propositions. No doubt, as the age in question increases the force of the propositions diminishes.
[5]    R v Mills [1998] 4 VR 235.

The following remarks of Callaway JA in Misokka support the propositions set out above:[6]
[6]    R v Misokka [1995] VSC 215.
In assessing this branch of counsel's argument I bear in mind two principles. The first is that, in the case of youthful offenders, rehabilitation is usually far more important than general deterrence. See, for example, Attorney-General v Chmil and Zanoni (Full Court, unreported, 1st August 1977) at 3 and R v G D P (1991) 53 A Crim R 112 at 116. The second principle is that such an offender is not, if it can be avoided, sent to an adult prison for a first offence. Cf R v Smith (1988) 33 A Crim R 95 at 97 in the judgment of Young, CJ, with whom Crockett and Marks, JJ concurred.
In the same matter, Vincent AJA also made relevant observations:[7]
The central principle when dealing with young offenders is, in my view, quite clear and has been enunciated on many occasions over the years. The incarceration of a young person in the adult prison system, carrying as it does a real potential to cause damage of a kind for which both the offender and the community may pay dearly in the long term, should not be ordered unless the court is satisfied that the powerful factors which have been accepted by the legislature and the courts as requiring and justifying the existence of a separate youth correctional system have been very clearly displaced in importance in favour of the adoption of a more punitive approach.
It is to be noted that s5(4) of the Sentencing Act 1991 states: "A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender."
That requirement has been from time to time expressed in the adage that prison is to be regarded as a sanction of last resort. Broadly accepted, that must be so. It has even greater effect and impact when a prison sentence is to be imposed upon a young person.
Further, Crockett J’s remarks in Edwards are pertinent:[8]
…[T]he authorities plainly show that it is possible to grant non-custodial dispositions to youthful offenders who offer a real chance of complete rehabilitation even in the case of very serious offences. It must also not be lost sight of that the fact remains that the suspended terms of imprisonment imposed are deemed to be terms of imprisonment for the period of the suspension. …
[7]    R v Misokka [1995] VSC 215.
[8]    R v Edwards (1993) 67 A Crim R 486 at 489.
The importance of the rehabilitation of a young offender has also been recognised in this Court. In Hendy v Kraft, Olsson J relevantly observed:[9]
This Court has repeatedly stressed a concept, which is reinforced by the express provisions of the Criminal Law (Sentencing) Act, that, in the case of young offenders, considerations of rehabilitation must occupy a prominent role in the sentencing process: see R v Weaver …; R v Rousseff …. The imposition of crushing first custodial sentences upon young offenders is counter-productive to the attainment of such an aim.
[9] Hendy v Kraft (1991) 55 SASR 345 at 347 – 348.
However, it is evident from the extract below from GDP,[10] that general deterrence is still a relevant consideration in sentencing a young offender in some circumstances. In that decision, Mathews J, with whom Gleeson CJ and Samuels JA agreed, quoted passages from Wilcox[11] and Smith[12] which, like some of the above extracts, indicate that considerations of the young offender’s rehabilitation should prevail over considerations of general deterrence. Mathews J then went on to make the following observations:[13]
Subsequent decisions of this Court, however, suggest that considerations of general deterrence should not be ignored completely when sentencing young offenders. In Broad, (unreported, 30 March 1984) Street CJ referred to "the necessity to deter anti-social conduct ... commonly manifested by vandals in this city in current times" but also was "concerned that for a young man of 19 with a clear earlier record and a supportive family background, importing as it does the prospects of real confidence in rehabilitation, a custodial sentence does not reflect the appropriate approach to be taken."
In C, S and T, (unreported, Court of Criminal Appeal, NSW Gleeson CJ, Allen and Studdert JJ, 12 October 1989), accepted a submission that "in sentencing young people ... the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed."
[10] R v GDP (1991) 53 A Crim R 112.
[11] Wilcox v The Queen (unreported, Supreme Court of New South Wales, Yeldham J, 15 August 1979).
[12] R v Smith [1964] Crim LR 70.
[13] R v GDP (1991) 53 A Crim R 112 at 116.
As noted above, the present offending occurred when the defendant was aged only 18 years. In our view, the sentencing Judge gave insufficient weight to the defendant’s youth.
Antecedents
When considering an appropriate sentence, regard should be had to the defendant’s personal and cultural antecedents as well as any criminal antecedents. As noted above, the defendant had no prior criminal antecedents. His personal and cultural antecedents gave rise to matters to be addressed by the sentencing Judge. His difficult upbringing when coupled with his limited intellectual functioning does provide some explanation for his conduct. Although these factors do not provide an excuse, they do call for, where possible, an approach of some leniency. This of course must be considered in light of the very serious offending and the need to provide protection to the community and, in particular, women in the community.
In our view the Judge failed to properly weigh these considerations when sentencing the defendant.
Totality
We consider that the Judge was in error in not applying the principle of totality to the total sentence that he was minded to impose. This is an alternative way in which the proposed sentence could and should have been moderated.
That principle was expressed by Thomas as follows:[14]
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. The principle has been stated many times in various forms: “when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong”; “when cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.
[14] Thomas, Principles of Sentencing (2^nd ed, 1979) at 56.
The description of the principle has been approved by the High Court in Mill[15] and Postiglione[16] and it has been discussed and applied by this Court in Place[17] and Randall-Smith.[18]
[15] Mill v The Queen (1988) 166 CLR 59.
[16] Postiglione v The Queen (1997) 189 CLR 295.
[17] R v Place (2002) 81 SASR 395.
[18] R v Randall-Smith (2008) 100 SASR 326 at [103]-[108] per Gray and Layton JJ.
Applying the principle in this proceeding and considering the totality of the defendant’s criminal conduct, we consider that the trial Judge erred in making no reduction on account of the principle of totality.
Reduction for the Pleas
The High Court in Cameron[19] discussed the relevance of a plea of guilty in the sentencing process. Gaudron, Gummow and Callinan JJ observed:[20]
[19] Cameron v The Queen (2002) 209 CLR 339.
[20] Cameron v The Queen (2002) 209 CLR 339 at [11], [13]-[14].
It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said:
"a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case."
…
It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.
[Footnote omitted.]
Kirby J commented as follows:[21]
The discount for a plea of guilty to the charge brought against the accused is to be distinguished from a discount for a spontaneous and immediate expression of remorse conducive to reform and for immediate co-operation with investigating police. The latter has always been treated as deserving of such recognition in the sentencing of an accused. In many cases such feelings of repentance will continue and manifest themselves in an early plea of guilty that is adhered to at the trial. Obviously, the timing of any plea of guilty has a large bearing on the credit that should be given to the prisoner. A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity. But even a belated plea will normally attract a discount.
[Footnotes omitted.]
It is important for Judges when sentencing to recognise the true significance of a plea of guilty. A plea of guilty demonstrates a willingness on the part of a defendant to facilitate the course of justice. A plea may also evidence contrition and remorse. There may of course be additional material relevant to the making of a reduction, more particularly, further evidence of contrition and remorse.
[21] Cameron v The Queen (2002) 209 CLR 339 at [65].
The approach of the Judge suggests that the question of reduction was addressed without regard to these principles.
Conclusion
Having regard to the foregoing, we consider that the sentence imposed was manifestly excessive. The reason is to be found in the failure of the sentencing Judge to accord proper weight to the factors identified above. The sentences imposed should be set aside and the defendant resentenced by this Court.
Resentence
After the Court reserved judgment, it re-listed the matter and we indicated that we were intending to allow the appeal and to resentence the defendant. We sought further information considered to be relevant to both the appeal and the question of the appropriate sentence.
We have been advised by the Department for Correctional Services that the defendant is currently on a waiting list to be assessed for suitability for the sexual behaviour clinic. This is a sex offender treatment program of moderate intensity, usually delivered in the last two years of a prisoner’s sentence. Prisoners are assessed and there can be programs which are tailored specifically for those prisoners with cognitive disabilities, and where there may be cultural considerations.
The defendant, as a consequence of the length of his sentence, is subject to oversight by the serious offender committee which considers matters such as his placement in prison, his security rating, prospects of rehabilitation and other individual needs. We are informed that the defendant is located at Port Augusta prison with a fellow prisoner who knows some of the defendant’s relations. The defendant has had contact with Aboriginal support services and agencies which have assisted him to make contact with his family in the Northern Territory.
We have also been advised that it is possible for parolees on release to transfer their parole to, in the case of the defendant, the Northern Territory, but that is subject to the Parole Board being satisfied that there are appropriate support systems and rehabilitation programs available. We have been advised that, in the more remote regions of the Northern Territory, there are limited or no rehabilitation resources and limited resources to supervise parolees. We have had regard to these factors in resentencing the defendant.
We have earlier in these reasons set out the circumstances of the offending. On any view, it was very serious offending. The effect on the defendant’s victims has been serious, and is ongoing. The circumstances of the defendant’s offending give rise to a need to protect the community. We have regard to these matters.
We have also considered the defendant’s personal and cultural antecedents, his young age, his cognitive capacity, his prior good record and his prospects for rehabilitation. We consider that a number of these matters reflect a strong case for a longer than usual non-parole period.
The defendant’s offending constitutes an ongoing course of criminal conduct with many features of a like nature. We propose to resentence utilising our power to impose the one sentence pursuant to section 18A of the Sentencing Act.
The incident on 27 April 2009 was the defendant’s first incursion into criminal conduct. In the ordinary course, this may have led to a suspended sentence of a relatively short term, perhaps of the order of 12 months or possibly a conviction and a release on a bond without any term of imprisonment being imposed. One would expect a reduction on account of a plea in the order of 25 per cent.
The offending of 16 May 2009 all formed part of the one course of conduct on the one occasion. We consider that it is artificial to separate the offences that occurred on this occasion. In our view, an immediate term of imprisonment would be appropriate. Again, a reduction of 25 per cent on account of the plea should be made and were this the only sentence to be imposed, having regard to the reduction, we would fix a head sentence of nine years.
The offending of 6 July 2009 involved two separate incursions into crime, but in a very real sense, it was ongoing conduct of a like nature on the one day. Again we consider it artificial to separate the offences that occurred on this occasion. In our view, an immediate term of imprisonment should be imposed. A reduction of 25 per cent on account of the plea is appropriate. Were these the only crimes to be considered we would fix a term of three years’ imprisonment.
As noted above, we consider it appropriate to invoke our powers under section 18A of the Sentencing Act and impose the one sentence in respect of all offending. In all the circumstances and having regard to the principle of totality, we impose the one head sentence of 11 years’ imprisonment.
Non-Parole Period
We fix a non-parole period of five years and six months’ imprisonment. Our reasons for setting a lower non‑parole period than might be the case for serious offending of this kind are as follows.
The defendant is a first-time offender who is young. He is in need of treatment. The treatment available to the defendant whilst in custody is extremely limited. Any treatment will probably not be available until two years before his release. A long period of supervision whilst the defendant is on parole will better assist the defendant’s rehabilitation and return to the community. The Parole Board is best placed to assess the defendant, determine whether he is ready to be released on parole following the expiration of the non-parole period and, if released, the conditions under which he should be released into the community. A sentencing judge attempting to look into the future, particularly in the case of a long sentence, is not as well equipped to make decisions as to the appropriate time to release a person on parole, once the non-parole period has been served.
In Portolesi, Kerr CJ, with whom Jacobs P and Lee J agreed, observed:[22]
Very little, if anything, has so far been said about the positive approach which should be adopted to the fixation of the actual length of the non-parole period. It is to this problem that I now turn my attention. Generally speaking, a relatively short non-parole period should be fixed, unless there are good reasons for not doing so. This leaves the problem to the parole authorities to determine whether and when, after the expiration of that period, a prisoner should be released on parole. They will make that decision on the basis of detailed information and investigation. They will make it in the knowledge that, if their decision to release on parole fails to achieve its purpose, the prisoner goes back to serve his sentence. If a relatively short period is fixed for the non-parole period, it does not follow that the prisoner is entitled to have his release on parole speedily granted. It must be a matter of expert consideration and decision in the light of all the circumstances. The parole authorities are just as well able to decide whether a person is unsuitable for parole as they are to decide that he is suitable. They are the best authority to make both types of decision. The fixation of the non-parole period does not operate as an indication that the prisoner should be released at the end of that period.
The judge is ill-equipped to consider whether a prisoner is or will be fit for parole at a particular future time. The Parole Board can come to a reasoned conclusion on this matter, for it, and under the existing system, it alone, has the material, the knowledge and the expertise upon which to form a reasoned conclusion at the relevant time, i.e., at some point of time whilst the sentence is being served. Whether a man in prison serving a sentence imposed by a judge should serve the balance of his sentence outside the prison under supervision, or whether he should remain incarcerated, is a question which should be decided in the light of all the circumstances as assessed at a point of time during the serving of the sentence, and this should be done by an authority able to look at the whole situation as it exists at the time that decision is being made.
…
There may be good reasons in particular cases for fixing a parole period which is not short but if, in a particular instance, there are, they should be known and explicit in the judge’s mind. He should not act on a formula but he may in proper cases reflect, in the fixation of the non-parole period as well as in the main sentence, punitive or retributive ideas. If he attaches much importance to deterrent notions, these too may in some cases be relevant, but generally deterrent ideas to the extent that they have currency are more apt in fixing the main sentence. It does not seem appropriate that a man’s real chance of rehabilitation should be delayed for alleged reasons of deterrence. The proper general approach is to fix a relatively short non-parole period, unless there are good specific reasons in an individual case for not approaching the matter in this way.
Judges should not, as I see it, fix a non-parole period on the assumption that the period fixed will be more or less automatically accepted by the parole authorities, but should assume that those authorities will consider each case properly, regarding the period fixed as doing no more than opening the matter up to them for their positive attention. It is to be assumed that they have the resources to do this work properly.
[Emphasis added]
[22] Reg. v. Portolesi [1973] 1 NSWLR 105 at 107-108.

The passages to which we have referred are of particular significance in this case. The defendant can be observed whilst in custody, receive treatment and then be assessed by the Parole Board, which is equipped, unlike the sentencing court, to monitor his progress and ensure that he has the best opportunity that can be provided to assist his rehabilitation. In this way, the need to protect the community is best addressed.
Conclusion
The orders of the Court are that the appeal is allowed, the sentences imposed by the sentencing Judge are set aside, the defendant is sentenced to the one term of imprisonment in respect of all offending of 11 years and a non-parole period of five years and six months is fixed. The head sentence and the non-parole period are backdated to commence on 7 July 2009.