R v Major

[1998] SASC 6569

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE, CJ, OLSSON and WILLIAMS, JJ

CATCHWORDS:

Criminal law - jurisdiction, practice and procedure - judgment and punishment.

Sentence - prosecution appeal against sentence - principles applicable to Crown appeal against sentence - respondent pleaded guilty to six counts of rape, two counts of indecent assault and two counts of burglary - unusual case - full and frank confession.

Strong remorse - good signs of rehabilitation - whether sentencing judge erred in application of totality principle - whether sentence wholly inadequate - whether reasonable member of public would regard sentence as inadequate - appeal allowed. Criminal Law (Consolidation Act) S352; Criminal Law (Sentencing) ActS18A, referred to. Everett v The Queen (1994) 184 CLR
195; Malvaso v The Queen (1989) 168 CLR 227; Griffiths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212; R v Dorning (1981) 27 SASR 481; R v Nixon (1993) 66 A Crim R 83; R v Knight (1981) 26 SASR 573; The Queen v Rossi (1988) 142 LSJS 451; Rumble v R (1977) 87 A Crim R 550; The Queen v Bird
(1987) 9 Cr App R(S) 77; The Queen v Lane (1996) 188 LSJS 93; Mill v The Queen
(1988) 166 CLR 59, applied. Arnold v The Queen (1996) 71 FCR 117; The Queen v Smith & Shoesmith (1983) 32 SASR 219, considered.

HEARING:

ADELAIDE, 19 February 1998 (hearing) 20 March 1998 (decision)

#DATE 20:3:1998

Appearances:

Appellant:

Counsel: Mr P Rofe QC

Solicitors: DPP (SA)

Respondent:

Counsel: Ms A Vanstone QC

Solicitors: Mr J Ibbotson

ORDER: appeal allowed.

DOYLE CJ

This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by a Judge of this Court.

The relevant facts and the relevant circumstances are set out in the reasons of Olsson J. I will not repeat them.

I agree with the decision of Olsson J, and with the substance of his reasons. There are a few matters on which I wish to add some remarks.

An unusual case

The facts set out in the reasons of Olsson J show that this is a quite unusual case. First, because of the number and seriousness of the offences to which the respondent pleaded guilty. Each offence was of a serious type. Each of them was, in my opinion, attended by circumstances that made it a relatively serious instance of its type. In particular, the entry into private homes at night, for the purpose of offending, adds to the gravity of the offences in the cases in which that was a feature of the offence. These are offences which cause considerable public alarm. The victim impact statement show that, years later, some of the victims still suffer serious adverse affects from the offences. Secondly, the case is unusual because the offending conduct continued over a prolonged period of time. The respondent had plenty of time, along the way, to reflect upon his conduct, but continued to offend. Thirdly, the case is unusual in that the respondent implicated himself to the police although he was not a suspect in relation to these offences. There is every reason to think that had the respondent not gone to the police he would never have been charged with these offences. Fourthly, the case is unusual because there are unusually strong indications of genuine remorse, of a genuine desire on the part of the respondent to take responsibility for his actions and of a genuine desire to change his behaviour. This emerges from his decision to admit guilt, from his reasons for doing so, and from what he has told the psychologist and the psychiatrists who provided helpful reports to the sentencing judge. Closely linked to this is the fact that there are good prospects of rehabilitation, but that that rehabilitation will not be advanced while the respondent is imprisoned.

Approach to sentencing

I agree with Olsson J that if a single sentence is imposed, using section 18A of the Criminal Law (Sentencing) Act ("the Act"), the Judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the Judge must consider whether the sentences imposed would be concurrent or cumulative. I agree that in the present case the starting point is that each sentence would be cumulative.

If the Judge does not do this, there is a real danger that a single sentence imposed under section 18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.

In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed.

I also agree with Olsson J that when an appropriate single sentence has been arrived at, taking account of all relevant factors, both adverse and favourable, it is then appropriate for the sentencing judge to consider whether the sentence contemplated is so crushing as to call for some reduction as an act of mercy. Once again, in a case in which the principle of totality is called into play, it is necessary for the sentencing Judge to give separate consideration to that factor.

I wish to reserve my position in relation to the question of whether, in the present case, it was necessary to consider the sentence that would have been imposed for each offence at about the time that the offence was committed. In my opinion it is not necessary to decide this point. That is because, as appears from the reasons of Olsson J, the appropriate sentence is in any event to be reduced, by reference to the totality principle, below what would otherwise be appropriate.

I doubt whether it is appropriate, in the present case, to depart from current sentencing standards. Granted, this is not a case in which the respondent absconded, therefore delaying the processes of the law, nor is it a case in which a delay in sentencing has occurred due to some delay on the part of the prosecuting authorities or the processes of the law: cf R v Shore
(1993) 66 A Crim R 37. I consider that the present case is similar to that of R v Dick (1994) 75 A Crim R 303. However, I accept that there are some differences. It is sufficient for me to say that I regard the question of the proper approach to be taken on this point as one that requires careful consideration, in the light of a more detailed review of the authorities than took place in the present case.

The sentence imposed

I agree with Olsson J that the head sentence of 20 years, that the Judge would have imposed but for the mitigating factors to which he referred, was wholly inadequate to reflect the seriousness of these offences, and the punishment that they required.

I agree with the general approach of Olsson J to the sentence to be imposed. In my opinion a head sentence of less than 20 years could not be justified, despite the unusually powerful mitigating circumstances. In my opinion a head sentence of less than 20 years would fail to reflect the seriousness of these offences, and the need for general deterrence.

I consider that the head sentence of 12 years that the Judge imposed is so low that it indicates that an error has been made. In my opinion, the Judge must have erred as a matter of principle. There must be some undisclosed error in her approach. It may be that she erred in failing to consider the appropriate sentences had each offence been dealt with separately. Whatever the source of the error may be, in my opinion it is clear that one has occurred. It is also clear, in my opinion, that the difference between the sentence imposed and the appropriate sentence is not explicable as simply a difference of degree.

The Court does not interfere, on an appeal against sentence by the Director of Public Prosecutions, merely because error has occurred. Nor does it necessarily suffice that there is an error of principle.

In the present case the sentence imposed would, were it to stand, reflect a standard that is wholly inadequate. I say that, bearing in mind that for a single offence of rape, an offender might well receive a sentence of about five years' imprisonment. I consider that, were the sentence to be allowed to stand, it would not only reflect a wholly inadequate standard, but that it would also be regarded by a reasonable member of the public as inadequate to reflect the seriousness of the conduct involved.

I consider that this is a case in which, consistently with what the High Court said in Everett v The Queen (1994) 181 CLR 295, the Court can and should give leave to the Director of Public Prosecutions to appeal against the sentence.

Having done that, it does not follow that the Court will set aside the sentence passed. However, in my opinion, it should do so in the present case. I have already said why it should do so. I add that this is not a case in which is suffices to identify the error made, and to leave the sentence stand. The disparity between the sentence which should be imposed, and the sentence actually imposed, and the seriousness of the offences make it inappropriate to leave the sentence stand.

I agree that the Court should grant leave to appeal, set aside the sentence imposed and substitute a head sentence of 20 years' imprisonment.

The non-parole period

The fixation of an appropriate non-parole period is difficult. In fixing the non-parole period the Court is entitled to give considerable weight to the personal circumstances of the offender, and to the prospects of rehabilitation. Of particular relevance is the fact that imprisonment will not assist the respondent's rehabilitation, and might impede it. But the fixation of a non-parole period is not a matter that depends wholly upon circumstances personal to the offender. In fixing a non-parole period the Court must, as with the head sentence, ensure that the punishment fits the crime. The non-parole period must reflect the community's sense of justice. It "... should be properly proportionate to the gravity of the crime:" R v Creed
(1985) 37 SASR 566; R v Winters (1997) 192 LSJS 350 at 353.

In the present case, it is appropriate to fix a lower than usual proportion of the head sentence as the non-parole period. But the period fixed must still reflect the gravity of the crime.

I am prepared to agree to a non-parole period of ten years, as proposed by Olsson J. Nevertheless, I regard that as being at the lower end of the range that is required to reflect the gravity of the crimes in the present case. Such a low non-parole period for such serious offending is appropriate only because of the unusually powerful mitigating circumstances of this case.

OLSSON J

This is an application by the Director of Public Prosecutions, pursuant to s352 of the Criminal Law (Consolidation) Act, for leave to appeal against a sentence imposed on the respondent by a Judge of this Court on 14 November 1997.

The respondent was arraigned on an information containing some ten counts, to all of which he ultimately pleaded guilty. Six counts charged offences of rape, two counts charged offences of indecent assault and two charged offences of burglary. The offences spanned a period extending from 1 January 1984 to 11 December 1994. Each related to a different victim.

In the course of submissions a summary of the factual allegations related to the various offences was tendered to the learned sentencing judge. This was expressed as follows:

TABLE

Count &

Offence

Date
Type of

Offence
Victim
Summary of Facts
Page

Reference

in R/I
1

(1/1/84 -

31/12/84)
Rape

(Vaginal)
Unknown
Intoxicated. Goes walking at 2am after a party. Meets girl also out walking. Tries to kiss her, then grabs her, drags her to some bushes, forces her to the ground, removes her jeans & pants, has vaginal intercourse, ejaculates, then gets up runs.
122-131
2

(1/2/84-1/11/84)
Indecent Assault

(fondling breasts)
Unknown
Afternoon, had been drinking, app 3.30 or 4pm. Walking along road, smoking cannabis. Meets female passing by. They talk & she offers him a lift into town. While driving, he pulls out a pocket knife, asks her to pull over. Plays with, & puts mouth on her breasts, & attempts to put his hand down her pants. Victim indicates she has her period. He lets her out of the car, panics, & drives off in her car. Stops & then runs into the parklands.
110-122
3

(4/6/85)
Rape

(anal)
J.A.P.
App lam. Ascends spiral staircase, enters through unlocked balcony doors. Looking for lone female to rape or something to steal. Enters bedroom, girl inside, she screams. He jumps on bed & places hand over her mouth & threatens her. She is naked. Rubs penis against her, penetrates her vagina with his fingers, ejaculates, threatens her again & then leaves.
86-96
4

(1/9/85 -1/4/86)
Indecent Assault (penetra-tion of vagina with finger)
Unknown
App 1am. Had been drinking. Enters house through open window. Enters bedroom, male & female asleep. Reaches under covers, touches breasts & vagina of sleeping female, & inserts finger into vagina. As he prepares to leave, victim awakes & screams, he runs out front door.
98-108
5

(1/9/85 - 1/4/86)
Rape

(vaginal)
Unknown
Picks up 2 young women in the city & offers them a lift. Had been drinking & smoking cannabis. One asleep in the back seat, the other in the front hugging & kissing him. She indicates she does not want to go further. Stops vehicle, pulls down victims pants, tries penetrate her, she resists, he forces penetration of vagina with penis & ejaculates. Drops them off at the railway station & goes home.
73-84
6

(21/13/86)
Burglary

(with intent to rape)
J.O.
App 1.30 - 2am. Intoxicated & had smoked cannabis. Enters house through open window. Enters bedroom & victim wakes. Places hand over mouth & threatens victim. Touches breasts. Victim says she has a venereal disease & other things to defuse situation. Tells victim he will leave if she kisses him. She does. Defendant leaves.
60-69
7

(15/11/86)
Rape

(with intent to rape)
S.J.H.
Night time, app 3 am. Intoxicated. Enters house through unlocked door. Looking for something to take or a female to rape. Enters bedroom. Victim asleep but wakes. Child also in the bed. He grabs her & places his hand over her mouth & threatens her. Turns victim, lifts night shirt, rubs penis against her vagina and then penetrates her with finger & penis. Leaves straight after.
60-69
8

(16/6/90)
Burglary (with intent to rape)
A.D.
Intoxicated & had smoked cannabis. App 2am. Reaches through open window & opens door. Enters bedroom, victim asleep. Places hand over mouth & threatens victim. Touches her breasts, & when attempts to remove panties victim kicks him in the chest, he falls & victim screams. He runs out.
36-49
9

(4/9/93 - 5/9/93)
Rape

(vaginal)
M.M.M.W.
Intoxicated & had smoked cannabis. Looked & found house with open window. Looking for something to take, or a woman to assault or rape. App 1am or 2am. Enters bedroom, victim asleep, places hand over mouth, children also in house. Rubs penis on her vagina, plays with her breasts, & than has intercourse. Ejaculates, takes $20 from her purse & leaves. Threatens her.
25-36
10

(11/12/94)
Rape

(digital & penile/

vaginal)
S.V.L.
Intoxicated, & had smoked cannabis. Entered house, door unlocked. Getting dark. Intending to look for money. Girl in house, grabs her & places hand over mouth. Undresses her in bedroom, touches breasts & nipples, rubs penis against her, victim menstruating, removes tampon, inserts fingers into vagina, inserts penis & ejaculates. Threatens to kill her if she tells anyone.
3-24
As the learned sentencing judge pointed out, the offences commenced when the respondent was about twenty-one years of age and followed a fairly consistent pattern. They were usually committed when the respondent was affected by alcohol and/or drugs. All but one occurred at night. A number of them were associated with threats made to the victims. The appellant had not been identified as a suspect in relation to any of the offences and it seems unlikely that he would have been so identified, but for his ultimate disclosures to the police.

To employ her summation:

"In the main they appear to have been relatively short in duration and proceeded without the use of violence over and above the obvious violence of the sexual assault itself. You were opportunistic in your selection of premises and to that extent the offences can perhaps be described as reasonably spontaneous. In general, when faced with resistance you abandoned your plans. None of these matters, however, reduce the level of fear that your actions obviously instilled in your victims. None of them was aware of your potential for violence and it is clear that your actions have had a significant impact on all of the women concerned. As part of the sentencing process I have received victim impact statements from those women who have been identified as victims of your crimes. Quite apart from their specific personal trauma, there is a common theme of fear of sleeping alone in the house, a lack of personal security in the home, difficulty in forming relationships, and ongoing fear, a distress which has not been alleviated by the passage of time."

It appears that the respondent's involvement in the offending only came to light as a result of him voluntarily attending at a police station and making a full and frank confession as to his crimes.

Prior to the confession the respondent had a medical history of psychiatric problems. He had two hospital admissions - the most recent in June 1996, being for increasing anxiety attacks. He was diagnosed as having a chronic post-traumatic stress disorder relating to childhood sexual abuse, paraphilia and substance abuse.

Ultimately, having told his wife of the crimes committed by him, she accompanied him to the police station on 26 August 1996, when he made his confession over a period of some five hours. As the learned sentencing judge pointed out, because four of the offences involved unknown victims, they could never have resulted in charges against him, absent his own confession.

The learned sentencing judge had a plethora of information before her concerning the respondent, as well as various victim impact statements and witness declarations. This material included comprehensive psychiatric assessments by Drs Raeside and Czechowicz; and a report from Mr Alan Jenkins, a forensic psychologist. Those reports give rise to some expectation that the confession of the respondent and his punishment may well have something of a cathartic effect. They indicate a reasonably good future prognosis, with the aid of therapeutic intervention. Mr Raeside felt that there was, however, some risk of future development of suicidal tendencies.

In the course of her sentencing remarks the learned sentencing judge, inter alia, commented:

"Dr Raeside's report set out your prior history in considerable detail. This included childhood sexual abuse and an ongoing pattern of criminal behaviour commencing in your adolescence, leading up to the eventual commission of these crimes. Dr Raeside told me, as for that matter did Mr Jenkins, that he had not had any experience with someone such as you who has come forth of his own volition to confess his crimes. He thought, however, that the longer you were in gaol, the harder it would be for you eventually to rehabilitate yourself. He thought that there were two aspects regarding your prognosis. One was the underlying disorder, the core problems that you have with self-esteem, and your self-identity, and the other, your actual offending behaviour. Dr Raeside was hopeful that you would not re-offend, given what you have been through and after a period of time in custody. He was concerned, however, that the treatment you needed of your underlying core problems would not be available in gaol and it would take some time while on parole for that to begin. He considered you genuine in your desire to rehabilitate and not to re-offend."

The respondent is now aged thirty-four years. He is separated from his wife, although she has been supportive of him. He has two children, aged nine and five years old respectively and, at time of sentencing, had been their primary carer. He was then unemployed.

The only relevant prior record is that of a conviction for attempted burglary in 1986, which resulted in him entering into a bond. It was, of course, a circumstance of aggravation that one of the offences of rape was committed during the currency of that bond.

The respondent wrote a personal letter to the learned sentencing judge, in which he expressed deep regret for the hurt caused by his actions to his victims and their families and indicated that he was making an honest attempt to address his problems. That letter gives some insight into the reasons for his voluntary confession. It does strongly suggest a sincere desire on the part of the respondent to rehabilitate himself.

The learned sentencing judge was, not unsurprisingly, prepared to accept that the respondent was genuinely contrite and anxious to take positive steps towards rehabilitation. She regarded the respondent's conduct in coming forward as being very significant and, coupled with his timely pleas, as warranting a greater than usual tariff discount.

At the end of the day the learned trial judge indicated that, but for those aspects, she would have imposed a head sentence of twenty years' imprisonment. She felt that this should be discounted to twelve years, with a non parole period of eight years, to run from 20 January, 1997. She sentenced the respondent accordingly.

It is the Crown's contention that, having regard to " the total gravity and overall criminality of the prisoner's crimes ", the sentence imposed was manifestly inadequate and that an excessive discount was allowed for the respondent's confession and pleas of guilty. Mr Rofe, QC, Director of Public Prosecutions, also criticised the conceptual process of reasoning adopted by the learned trial judge in arriving at the conclusion to which she came. He argued that it was clear from her sentencing remarks that she had applied the totality principle to whatever was thought to be the appropriate single sentence and then applied the discount for pleas of guilty and co-operation. This was, he submitted, erroneous in principle and had led her to an incorrect end result. (Cf the approach adverted to in Arnold v The Queen (1996) 71 FCR
117 at 119).

It is true to say that proposed appeals of this type are to be approached with caution. Leave ought only to be granted in " the rare and exceptional case " ( Everett v The Queen (1994) 184 CLR 295 at 299, Malvaso v The Queen
(1989) 168 CLR 227 at 234-5, Griffiths v The Queen (1977) 137 CLR 293 at 310).

As was said in R v Osenkowski (1982) 30 SASR 212 at 212-213, the proper role of prosecution appeals is to enable inappropriate idiosyncratic views to be corrected and, occasionally, to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience. The Crown argues that this, manifestly, is such a case.

As I understand the Crown submission it is that the actual sentence imposed fails to maintain an adequate standard of punishment for multiple rape offences.

The points sought to be made are that:

* the individual offences were very serious, both in terms of their nature and the circumstances in which they were committed;

* the paramount consideration for the offences was the factor of deterrence and this was not reflected in the sentence imposed;

* the totality principle was incorrectly applied to the single head sentence imposed, before allowance of the discount for pleas of guilty and co-operation;

* in principle, each offence ought to have attracted a separate, cumulative sentence, with a discount applicable to each. The appropriate sentence would then be the cumulation of those penalties, reduced, if necessary, by application of the totality principle.

* a strict cumulation of penalties had to produce a total in the order of fifty years. A maximum discount would not reduce that below thirty years. A proper, final application of the totality principle could not lead to a net head sentence of less than twenty years - to which an appropriate non parole period ought to be attached.

The response of Miss Vanstone, QC, of senior counsel for the respondent, to that line of argument was that the circumstances of this case were quite unusual and atypical, because of the combination of a large number of separate crimes, the obvious psychiatric condition of the offender, his spontaneous confession of crimes in relation to which he, probably, would never have been brought to account, his early pleas, and evidence that the rehabilitation process was actually in train and would be impeded by incarceration.

It was argued that all of these factors combined to take the sentencing process out of the ordinary and to indicate that the court ought not to inter- meddle with what was plainly a special and difficult exercise of discretion. This was not, she said, a situation which called for the almost mechanical process advocated by the Crown, as the learned sentencing judge properly recognised.

It is, I consider, first necessary to address the conceptual basis upon which the sentencing process ought to have proceeded in this instance.

Mr Rofe QC, contended that, even given resort to the provisions of Section 18A of the Criminal Law (Sentencing) Act ("CLSA"), the correct initial step was to assess each offence separately and attribute to it a notional proper sentence, due allowance being made, in each instance, for relevant factors of mitigation. Prima facie, in the course of that exercise, each sentence should be regarded as cumulative, because the offences could not be said to have arisen out of the one course of conduct, or to have been connected with one another in any relevant sense ( R v Dorning (1981) 27 SASR 481 at 482, approved in R v Nixon (1993) 66 A Crim R 83). In my opinion this reasoning is correct.

As was pointed out by Legoe J in R v Nixon (supra), the discretion as to whether or not to resort to the imposition of a single sentence for relevant multiple offences, as authorised by section 18A of the CLSA, is unfettered. However, that section is not a substitution for, and does not replace, the existing law and practice relating to the structure of multiple sentences, whether they be concurrent or cumulative, for the purpose of arriving at a total sentence.

The final step, when an aggregate, notional head sentence is arrived at by the above process, is to stand back and review the result in light of the totality principle. ( R v Knight (1981) 26 SASR 573 at 576). The question to be postulated is whether the total sentence is so disproportionate to the overall offending as to be unduly crushing. As was said in this court in The Queen v Rossi (1988) 142 LSJS 451 at 453, the totality principle:-

"... enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect".

(See also The Queen v Smith and Shoesmith (1983) 32 SASR 219 at 221).

In this process a subjective consideration of the practical impact on the offender becomes important ( Rumble v R (1977) 87 A Crim R 550, Arnold v The Queen (supra)).

In the instant case yet a further consideration necessarily arose. The series of offences admitted by the offender extended back over a lengthy period of time, the earliest being at some time in 1984. It is, in my view, undeniable that, in general, sentencing tariffs for the types of offence here in issue have increased significantly in recent years. It was therefore necessary, in carrying out the first notional stage of assessment of sentences to bear that well in mind. Those sentences fell to be arrived in accordance with the sentencing environment as it existed at or about the time of commission of the offence (see The Queen v Bird (1987) 9 Cr App R(S) 77 at 80, The Queen v Lane (1996) 188 LSJS 93 at 95).

Moreover, it is not irrelevant to take into account what has occurred to the offender in the period since that offending. ( Mill v The Queen (1988) 166 CLR 59). In the instant case there are some distinct signs of positive steps towards rehabilitation.

The essential commencement point adopted by Mr Rofe QC was that an initial, notional sentencing exercise on an offence by offence basis, leaving the relevant mitigating factors to one side, must have resulted in an aggregate head sentence of the order of not less than fifty years for the ten offences. He based that computation on ranges of sentencing tariffs which are plainly applicable at the present time (e.g. 6-12 years for rape, 3-5 years for burglary and 2-4 years for indecent assault).

As Miss Vanstone QC pointed out, these are substantially in excess of tariffs which existed in the early to mid 1980's. It seems to me that, at most, a notional total closer to forty years would, properly, have been arrived at.

Whilst Mr Rofe QC termed such an allowance generous, he did not, ultimately, resile from an application of the 40% discount which the learned sentencing judge plainly applied, in recognition of the unusual mitigating factors in this case, not the least of which was the voluntary disclosure by the offender of his conduct, and his obvious contrition, coupled with the desirability of encouraging other undetected offenders to come forward. Such a discount would operate to reduce the original notional aggregate total to approximately 24-25 years.

Finally, there was a need to give consideration to the application of the totality principle.

True it is that these were abhorrent and very serious offences which, in most instances, must have had profound adverse effects on the victims. On the other hand it is patent that the confessions of the offender must have occasioned some sense of relief to them and also marked a significant potential change in his life. There is no doubt that he has been suffering serious psychiatric problems, in large part stemming from childhood abuse suffered by him, and that there are now reasonable prospects of rehabilitation with appropriate therapeutic intervention. However, it is not feasible, effectively, to embark on such intervention whilst the respondent is in custody. A long, crushing sentence may, on the evidence, serve to negate his present prospects of rehabilitation.

There is much to be said for invoking the totality principle so as to moderate, to some extent, what would otherwise have been a technically justifiable aggregate sentence.

Even so, with all due respect to the learned sentencing judge, it is impossible to perceive the justification for reducing the head sentence to a mere twelve years, bearing in mind the enormity of the many offences committed. Even the burglaries had a sexual orientation. They constituted serious invasions of the privacy of the victims, which must have been truly frightening at the time. It seems to me that this result was the necessary outcome of the striking of a notional original aggregate head sentence which was manifestly too low. Moreover, I think that there is force in the criticism that the conceptual approach adopted by the learned trial judge did not follow the steps above outlined. It appears to have resulted in the allowance of some degree of double discount.

It is my view that the head sentence imposed sends the wrong message to the community in relation to the commission of multiple serious offences of the type here under consideration. I am driven to the conclusion that it was manifestly inadequate to the extent of constituting an affront to the public conscience.

I would therefore grant leave to appeal, allow the appeal and set aside the sentence imposed. I would substitute, in lieu, a head sentence of twenty years.

That result necessarily requires reconsideration of the length of the non-parole period.

I entirely agree with the learned sentencing judge that this is a quite unique case which calls for a special approach. For the reasons expressed by her it merits a much more generous and merciful approach to the fixation of a non-parole period than would normally be appropriate. Whilst the horrific impact of the offences on the various victims must be accorded due recognition, there is much in the background of the respondent to attract sympathy; his conduct has clearly been a reflection of his psychiatric condition and the diminished responsibility obviously engendered by it; his bona fides in seeking a path to rehabilitation are established by his confessions to crimes for which he probably would never have been brought to account, but for those confessions; and he is still a relatively young person with little in the way of any relevant antecedent record.

Whilst I do not consider that a non-parole period of eight years could be allowed to stand, nevertheless, I am of the view that ten years would be adequate in all of the circumstances. I would substitute that period. Both the substituted head sentence and new non-parole period ought to run from 20 th January 1997, when the respondent went into custody.

WILLIAMS J:

The facts of this matter have been comprehensively reviewed by the Chief Justice and by Olsson J whose reasons I have read in draft form. The respondent has been dealt with for ten serious offences during the period 1984 - 1994. The respondent eventually came forward voluntarily at a time when he was not a suspect and admitted to six counts of rape, two counts of indecent assault and two counts of burglary with intent to commit rape. These crimes were unconnected and it is apparent that with such a list of serious crimes the sentence would become crushing if the court were simply to aggregate the penalties appropriate to the individual crimes without some merciful intervention in the sentencing process.

The Director of Public Prosecutions seeks leave to appeal upon the footing that the one sentence of 12 years imprisonment with 8 years non-parole period is manifestly inadequate.

Charges for all offences have been presented upon one information and the sentencing Judge was thereby entitled to exercise power (as she did) under s18A of the Criminal Law (Sentencing) Act 1988 to impose one sentence. However s18A is a mechanical device which enlarges the options of the sentencing Judge as to manner in which the sentence may be constructed. Whilst the terms of s18A places a ceiling upon the penalty the language of the section does not otherwise assist in determining an appropriate penalty. (The ceiling is the total of the maximum penalty that could be imposed in respect of each of the offences to which the sentence relates). The Judge is still required to apply general sentencing principles in deciding upon a sentence which is proportionate to the overall offending.

The Director of Public Prosecutions (in seeking to identify an error upon the face of the sentencing remarks) contends that the sentencing Judge applied the totality principle to whatever she considered to be an appropriate single sentence and then applied a discount for pleas of guilty and co-operation. However, I do not read the sentencing remarks in that way. The only way in which the sentence can be criticised (if at all) is to rely upon "undisclosed error" as reflected in the result (or as it is sometimes termed - "non specific error").

Gross departure from what might be in experience the norm may be held to be error in point of sentencing principle (see per Barwick CJ in Griffiths v R
(1977) 137 CLR 293 at 310). However, there is a difficulty in applying such a principle where the facts are so special as to make it difficult to identify a norm.

"The concept of "non-specific" error is circular for it finds the error in the inadequacy or excess itself, even though the general rule requires that the defective sentence be a product of error. The rule effectively means that, in the absence of any obvious error in the trial Judge's reasons for sentence, the appellate court will infer that there has been some error of principle if it is of the opinion that the sentence grossly departs from what its members subjectively perceive to be the range of permissible sentences for the crime in question."

(see per Fox and Freiberg on Sentencing (1985) at 99.)

It is not apparent to me in the present case that there must have been some error which shocks public conscience and fails to maintain adequate sentencing standards. Not only were there very special features of the case (to which the majority of the Court has referred) but these offences were committed in a changing sentencing environment over many years. In R v Lane (1996) 188 LSJS
93 the Court of Criminal Appeal considered the principles associated with a sentence to be imposed for offending which occurred many years earlier but in a different sentencing climate. The Court there adopted the course taken by Cox J in R v Leondaris (13 November 1985) when he sentenced upon the basis of facts and circumstances as they would have been seen by a Judge at an earlier time. Lane was a case involving drug offences where the accused had absconded from bail - in Lane's case for 10 years. The trial Judge sentenced in accordance with sentencing standards recently reviewed by the CCA. However the CCA decided that Lane should have been "punished by the standards of ten or more years ago when it all happened." It seems to me that in considering this present appeal allowance in the respondent's favour should be made for the hardening in attitude which has occurred more recently towards sentencing for serious crime.

Having read all the material available to the sentencing Judge in the present case I conclude that the sentencing Judge has been extremely merciful. Nevertheless in all the circumstances I do not consider that this Court should interfere. A sentence in the region of 15 years with 10 years non-parole is the sort of sentence which current standards might require. However, I would be reluctant to say that the sentence selected by the Judge is not in accord with the relevant standards of the past. In my view an expression of a view by this Court would suffice in order to satisfy the interest which the Director of Public Prosecutions represents. The Director acknowledged in the course of argument that his principal concern was the deterrent aspect of the head sentence; he accepted that although the non-parole period would contain such an element, it provided more scope for flexibility than did the head sentence.

To go back so many years and review the standards is not without its difficulties. I am not persuaded that this is the rare and exceptional case in which leave to appeal should be granted.