R v Rindjarra

[2008] NTCCA 9

The Queen v Rindjarra [2008] NTCCA 9

PARTIES:THE QUEEN

v

RINDJARRA, Jason Lee

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 5 of 2008 (20718946)

DELIVERED:  27 November 2008

HEARING DATES:  3 November 2008

JUDGMENT OF:  MARTIN (BR) CJ, THOMAS AND SOUTHWOOD JJ

APPEAL FROM:  MILDREN J

CATCHWORDS:

APPEAL – CRIMINAL LAW

Crown appeal - whether sentence manifestly inadequate – sexual intercourse without consent – victim aged 10 years – motive of revenge - more serious category – shock the public conscience – appeal allowed – re-sentenced.

Criminal Code Act (NT), s 192(3)

R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v Anzac (1987) 50 NTR 6; R v Carroll [2008] NSWCCA 218; Director of Public of Public Prosecutions v Darren John McClelland [2008] VSCA 168; Director of Public Prosecutions v Kia Toumngeun [2008] VSCA 91; DPP v Bright (2006) 163 A Crim R 538
DPP v Josefski (2005) 13 VR 85; DPP v BW [2007] VSCA 171; Everett v R (1994) 181 CLR 295, applied.

Wong v The Queen (2001) 207 CLR 584, approved.

Tahche (1992) 62 A Crim R 75, considered.

R v Riley (2006) 161 A Crim R 414; R v Inkamala [2006] NTCCA 11
Mununggurr v R [2006] NTCCA 16; Green v The Queen (2006) 19 NTLR 1; Daniels v The Queen (2007) 20 NTLR 147, followed.
R v Siozios [2004] SASC 299; R v Humby [2004] SASC 358, not followed.

REPRESENTATION:

Counsel:

Appellant:W J Karczewski QC

Respondent:  S Corrish

Solicitors:

Appellant:Office of Director of Public Prosecutions

Respondent:  North Australian Aboriginal Justice Agency

Judgment category classification:      A

Judgment ID Number:  Mar0810

Number of pages:  41

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Rindjarra [2008] NTCCA 9

No. CA 5 of 2008 (20718946)

BETWEEN:

THE QUEEN

Appellant

AND:

JASON LEE RINDJARRA

Respondent

CORAM:    MARTIN (BR) CJ, THOMAS &SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 27 November 2008)

Martin (BR) CJ:

Introduction

1. This is an appeal by the Director of Public Prosecutions (“the Director”) against a sentence of six years imprisonment imposed for the crime of sexual intercourse without consent.  The sentence was accompanied by a non-parole period of four years and six months.

2. The sole ground of appeal complains that the sentence was manifestly inadequate.

   Facts

3. The crime was committed on 8 July 2007 when the respondent was aged 31 years.  The victim was a 10 year old female child.

4. The respondent had lived with the mother of the victim and her three children since 2001.  The respondent told a psychiatrist that the mother of the victim was his “girlfriend” for about eight years, but they did not live together very much.  The respondent said that he and the victim’s mother “fought a lot” and that she “got him into trouble with the police”. 

5. On 7 March 2007 a domestic violence order was confirmed for the benefit of the victim’s mother.  It was a full non-contact order for a period of 12 months and the order was served upon the respondent on 17 April 2007.

6. At some time prior to 7 July 2007, the victim’s mother and the respondent resumed contact.  On Saturday 7 July 2007 the respondent attended at the home of the victim and her mother in an angry mood.  An argument ensued and the victim’s mother became fearful of the respondent.  The argument resolved and the respondent left the house in the early evening, but after the respondent left the victim’s mother contacted the police seeking to enforce the domestic violence order.  Police attended at the home and took the victim’s mother to the police station for the purposes of taking a statement and making other arrangements.

7. The respondent became aware of police involvement.  This caused him to become angry and upset.  At about midnight on the same evening he climbed through a vacant air conditioning window into a bedroom of the home of the victim and her mother.  He found the victim asleep in the bedroom and carried her from the house across the road to bushland where he placed her on the ground and removed her shorts and underpants.  He then removed his own shorts.

8. The victim asked to be taken home, but the respondent told her they were waiting in that position for her mother.  The respondent lay down beside the victim and, holding her body still with his left arm and left leg, inserted two fingers of his right hand into the victim’s vagina.  This penetration was carried out with “some force”.  The respondent inserted the full length of his finger and, for some time, moved his fingers in and out.  The child did not say anything.  At one point the respondent positioned himself on top of the victim with the intention of having penile vaginal intercourse, but he was unable to successfully maintain an erection.

9. The respondent saw blood coming from the victim’s vagina and said to her that he would get off and did so.  They dressed and walked back to the home of the victim where the respondent left the child outside the house.

10. In the meantime, the victim’s mother had returned home and discovered that the victim was no longer in the bedroom.  Shortly after the discovery, the victim knocked on the front door.  When the door was opened, the victim’s family, including young children, saw extensive bleeding coming from between the victim’s legs.  The victim told her grandmother “Jason raped me”.

11. Police were contacted and attended the home with a nurse from the clinic.  The victim was lying on a mattress on the floor, crying and shaking.  When she stood up blood clots dropped to the floor and she vomited. 

12. The victim was medivaced to Darwin where she was examined at the Royal Darwin Hospital under anaesthetic.  The injuries were described in the agreed Crown facts in the following terms:

    “On genital examination she had pre-pubertal genitalia.  There was a deep laceration to the hymen, extending posteriorally into the posterior fourchette and the perineum.  The laceration terminated approximately three centimetres anterior to the anus.  The laceration also extended internally almost the full length of her vagina.  It extended to the posterior fornix of her vagina and required surgical repair.  There were no injuries to her anus or rectum”.

13. Surgical repair of the vagina and perineal injury was required.  The victim was an inpatient at the hospital for three days and received preventative antibiotics for sexually transmitted infections.  In the words of the medical practitioner who provided a report for the court, the victim suffered “extensive vaginal and perineal injuries due to blunt penetrating trauma”. 

14. The victim provided a victim impact statement in January 2008 in which she said she did not like what was done to her and she was feeling sad and angry at the respondent.  She said:

    “I feel different now after this happened.  I felt shamed because people were talking about me.  I felt shame for what happened.  I missed my family when I was in Darwin for two weeks to get counselling.”

15. The respondent was arrested during the morning of 8 July 2007.  Two days later he participated in an interview during which he admitted the offending.  According to the agreed facts, the respondent said he committed the offence “because he was angry with the child’s mother for contacting the police with respect to the breach of the domestic violence order”. 

16. The learned sentencing Judge correctly categorised the respondent’s crime as “a very serious offence upon a helpless child to whom [the respondent was] in a relationship of trust”.  His Honour noted that the offending was aggravated by the fact that it took place in breach of the domestic violence order.

17. As to matters personal to the respondent, he was born in Darwin, but raised in Maningrida.  His parents separated when he was a small child and he has not had much to do with his father.  His mother had a drinking problem and the respondent was brought up by other relatives.  The respondent does not have a close relationship with his family and has little to do with the extended family.  The respondent told the psychiatrist that he has the “biggest mobs” of siblings, but was unable to list their names or count them.

18. According to the report of the psychiatrist, the respondent attended school at Maningrida, but was not sure for how long, indicating perhaps two or three years altogether.  The respondent is unable to read or write and, although English is his second language, was able to converse with the psychiatrist in English without significant difficulty.  As the sentencing Judge observed, apart from a small amount of CDEP work after leaving school, most of the respondent’s time “seems to have been spent either in prison or in the long grass drinking”.

19. The psychiatrist reported that the respondent did not show any signs of mental disorder.  He described the respondent as “cheerful with no signs of concern about his position” and expressed the view that the respondent does not think there is much wrong with him.  The respondent told the psychiatrist that he was very intoxicated at the time of the offence, “but he still knew what he intended doing and knew at the time that it was not the right thing to do”.

20. As to his motive, the psychiatrist reported in the following terms:

    “He said he was very drunk and stoned and wanted to get back at … the girl’s mother as she had caused him trouble by going to the police.  He wanted to upset her as much as he could.  He knew at the time that the girl had done nothing wrong but said once: ‘that’s the black fellow way”.  He agreed he knew at the time that it was wrong …”.

21. The psychiatrist expressed the following view:

    “He is sorry now that it happened but expressed remorse only in the context of fearing retribution.  His reason for his action was the wish to hurt his ex-girlfriend for her action in calling the police.”

22. The respondent has a long record of prior offending dating back to 1991 when he was aged about 16 years.  Over the years the respondent has committed numerous offences of dishonesty, but of particular relevance were previous offences of violence, including sexual assaults.  The sentencing Judge summarised those offences of violence as follows:

    “Significantly, you have a prior conviction for indecent assault on 16 January 1992 in the Darwin Juvenile Court when you were 16 years of age.  On that occasion you assaulted a young girl who was riding a bicycle and you dragged her 100 metres into a park whilst fondling her breasts.  You held your hand over her mouth to prevent her from calling out.  However, she was able to scream and was rescued by nearby residents whilst you ran off.  On that occasion you were given a suspended sentence of detention.

    On 13 November 1997 you were convicted of aggravated assault in this Court in very similar circumstances.  On that occasion a 16 year old girl who was walking along Lee Point Road was grabbed by you around the neck.  You forced her pants down, but she screamed and residents were able to come to her rescue.  You were aged 20 at that time.  On that occasion you were convicted and sentenced to a term of three years imprisonment and a non-parole period was fixed.

    On 15 August 2002 you were convicted of unlawfully causing grievous harm.  Your victim was your de facto wife.  You stabbed her near the spinal cord with a screwdriver in the course of an argument.  She sustained spinal injuries and has had to use a walker and has had her house modified as a consequence.  On that occasion you were sentenced to a term of imprisonment for four years and six months with a non-parole period of three years and six months.

    You were released in September 2005 and the current offending occurred about six months after the completion of your parole period.”

23. The personal circumstances of the respondent did not disclose any matters of significance by way of mitigation.

24. As to remorse, the sentencing Judge noted the information from counsel that the respondent had told counsel that he was sorry for what he did because it was not the fault of the child.  His Honour observed that the respondent had expressed remorse which showed that he had “some insight” into his offending, but concluded that “it seems to me that your principal concern is for yourself”. 

25. As to prospects of rehabilitation, not surprisingly the Judge determined that the prospects were poor.  His Honour noted that the history of previous convictions and sentences had not deterred the respondent from re-offending.

26. Returning to the objective circumstances of the crime, plainly, as the sentencing Judge said, it was a “very serious offence”.  As to where the offending sits in the scale of seriousness for crimes of this type, in my opinion it is well within the more serious category.  The following factors are of particular significance:

    ·     The victim was a defenceless and vulnerable child aged 10 years.

    ·     In relation to the victim, the respondent was in a position of trust.

    ·     The offence was premeditated and motivated by anger and a desire to punish the victim’s mother for reporting the respondent’s conduct to the police.

    ·     At night, the respondent invaded the privacy and sanctity of the victim’s home and, in particular, her bedroom.

    ·     The respondent abducted the victim from her bedroom and took her to a concealed location for the purpose of sexually assaulting her.

    ·     The respondent forcefully inserted two fingers into the victim’s pre-pubertal vagina to the extent of the full length of his finger, after which he moved his finger in and out of her vagina.

    ·     The respondent placed himself on top of the victim with the intention of having penile vaginal intercourse with her and was prevented from doing so only because he was unable to maintain an erection.

    ·     The respondent’s criminal conduct caused serious physical injuries to the genitalia of the victim requiring surgical treatment under general anaesthetic in hospital.

    ·     The victim has been psychologically affected by the crime. 

    ·     There were no mitigating circumstances in connection with the commission of the crime.

27. As to the proper approach to the nature of the respondent’s crime and where it sits in the scale of seriousness, in the context of digital penetration by the respondent I repeat what I said in R v Riley concerning digital penetration as one of the categories of sexual intercourse without consent[1]:

    “[9]As a community, we have moved beyond many misguided views with respect to sexual assaults of various types to a more enlightened understanding of the motivations for and impacts of sexual assaults.  The community has come to understand that the gravity of sexual offending should not be judged simply by drawing a distinction between penile penetration and penetration by other parts of the body or objects.  Regardless of the means used for penetration, the community now understands that these types of sexual assaults are all serious crimes of violence accompanied by sexual acts, the gravity of which must be assessed according to its individual circumstances rather than by an artificial and often misleading distinction between penile and other means of penetration.

    [10]Throughout Australia, Legislatures have reflected this enlightened understanding by abolishing the distinction between different forms of penetration.  Prior to such abolition, acts of digital penetration without consent were classified as offences of indecent assault or gross indecency which attracted significantly lower maximum penalties than the crime of rape.  By abolishing the distinction between penile and digital penetration the Legislatures have reflected the change in community thinking about the essential nature of sexual crimes involving penetration.

    [11]In Ibbs v The Queen (1987) 163 CLR 447 the High Court was concerned with Western Australian legislation which, for the purposes of sexual penetration without consent, included penetration of the vagina or anus by any part of the body or an object manipulated by the offender. In a joint judgment the Court rejected the proposition of principle emerging from the judgments in the Court of Criminal Appeal that “divorced from the circumstances, each kind of sexual penetration as defined … is neither more nor less heinous than another” (451). The judgment continued (451 – 452):

    ‘The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within section 324D … .  The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in section 324F.  The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent.  When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case.  In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined.’ (Citations omitted).

    [12]As the High Court pointed out, a determination as to where a particular crime sits in a scale of seriousness must be determined according to the facts of the individual case having regard to “the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined”.  It is inappropriate to approach that task from the starting point that, as a general proposition, penile penetration is more serious than digital penetration.”

    Principles

28. The principles governing Crown appeals are not in doubt and are well known.  They are canvassed in numerous authorities, including Riley[2], and there is no need to repeat that discussion.  Counsel for the respondent questioned the validity of the principle propounded by King CJ in R v Osenkowski[3] based upon correction of a sentence “which is so disproportionate to the seriousness of the crime as to shock the public conscience”.  Notwithstanding that the principle expressed in these terms has repeatedly been approved by Australian appellate courts, counsel questioned its continued application.  Reference was made to the observations of Perry J in R v Siozios[4] and R v Humby[5].  His Honour expressed the view that reference to shocking the public conscience was no longer appropriate as it carried an emotive element.  I do not agree.  In my opinion, this expression of the principle remains valid and appropriate.  Properly understood, the reference to shocking the public conscience is not an appeal to an emotive reaction by the public.  It expresses a requirement to make an assessment as to whether the sentence would “shock” the collective and reasonable public conscience to the extent that it would undermine or “shake”[6] public confidence in the administration of justice.

29. Further discussion of the principles governing Crown appeals is not required.  It is sufficient to note that if the sentence is so manifestly inadequate as to shock the public conscience and demonstrate error in point of principle, nevertheless it remains necessary for the court to determine whether this is one of those rare and exceptional cases in which the Crown appeal should be allowed and the respondent re-sentenced.

    Discussion

30. There is no tariff applicable to crimes of sexual assault, including crimes of the type committed by the respondent.  All such crimes are serious, but they are committed in a wide variety of circumstances and by a wide variety of offenders.  The penalty must be determined according to the individual circumstances of the offending and the offender.

31. In these circumstances, individual sentences that have been previously imposed are of limited assistance.  However, some guidance can be obtained from previous decisions, particularly those of the Court of Criminal Appeal.

1. The Director relied upon the decisions of this Court in R v Riley[7]; R v Inkamala[8] and Mununggurr v R[9].  The sentencing Judge indicated that but for the respondent’s plea of guilty, cooperation with the authorities and limited remorse he would have imposed a sentence of eight years imprisonment.  The Director submitted that these authorities demonstrate that his Honour’s starting point of eight years was manifestly inadequate to the extent of demonstrating error in point of principle.

2. Riley was a Crown appeal against sentences for two offences of digital sexual intercourse without consent and an offence of gross indecency, all committed on the same occasion.  The learned sentencing Judge imposed sentences of three years imprisonment for each of the offences of sexual intercourse without consent, to be served concurrently, and a sentence of four years imprisonment was imposed for the offence of gross indecency to commence after service of two years of the concurrent sentences of three years.  The total period to be served was six years in respect of which a non-parole period of four years and six months was fixed.

3. In Riley, the male Aboriginal offender was aged 26 at the time of the offence.  The female victim was aged two years.  The offender removed the child from where she was playing in a street near her house and took her a considerable distance into a remote area in the bush.  After seating the child on the ground, with force the offender inserted his index and middle fingers into the victim’s vagina and his ring and little fingers into the victim’s anus.  The victim screamed in pain and began to cry.  The force of the sexual assault caused vaginal tissue to tear.  The offender told the victim to be quiet as he inserted half the length of his finger into the vagina and anus.  He moved his fingers in and out approximately four times before removing them completely.  Having developed a partial erection, the offender stood the victim on his lap and attempted to place his penis into the victim’s vagina, but his partial erection diminished.  The offender then masturbated himself in an attempt to develop a full erection, but was unable to do so. 

4. After pulling his jeans back up, the offender picked up the child and carried her to the home of his parents.  The child was naked.  The offender left the child with his father and walked away.

5. Under general anaesthetic a one centimetre tear at the bottom of the vagina towards the anus was discovered, together with two tears to the hymen. 

6. Although the offender in Riley had a lengthy record of driving offences, together with convictions for offences of dishonesty, he had no prior convictions for sexual offending or any offences of violence. 

7. In the course of my reasons I indicated that absent the constraint of the “double jeopardy” principle as it applies to re-sentencing following a successful Crown appeal, and before making allowance for the pleas of guilty, I would have regarded a sentence of 12 years imprisonment as appropriate for each of the crimes of sexual intercourse without consent.  Applying the principle of “double jeopardy” I indicated that before allowance was made for the plea of guilty, the appropriate sentence for each of the crimes of sexual intercourse without consent would be nine years imprisonment.  After allowance for the plea of guilty, by a majority a sentence of seven years imprisonment was imposed with respect to each of those offences.  Justice Mildren indicated that before allowing for the plea of guilty and the element of double jeopardy, his Honour would have imposed a sentence of nine years imprisonment

8. In Inkamala, the offender was an 18 year old male Aboriginal from the Hermannsburg community.  The victim was the offender’s cousin and was aged seven months at the time of the offending.  On the evening in question the mother of the victim had left the victim at a house to be looked after by other persons.  While the victim was asleep in a bedroom with an adult female, the offender entered the house and the bedroom, switched on the light and removed the sleeping victim from the bed saying he would take the baby to its mother.  A female person in the house intervened and took the baby from the offender. 

9. The offender was thought to have departed from the premises.  However, unknown to the occupants of the house, the offender had again entered the bedroom and removed the victim, this time without waking the female person who was looking after her.  The offender was later discovered on the back verandah of the premises holding the victim over his left shoulder.  He refused to give up the baby, but was persuaded that the baby should be put to bed. 

10. Later it was discovered that the victim was bleeding from the vaginal cavity.  An examination by a paediatrician revealed a superficial external laceration to the vagina and a deep internal and external laceration that extended one centimetre above the clitoris to one centimetre above the anus.  Surgery under general anaesthetic was required.  Heavy blood loss resulted in anaemia and could have had fatal consequences if untreated.  The offender admitted that after removing the victim from her home he digitally penetrated her.  The victim’s blood was found on the outside and inside of the track suit pants being worn by the offender. 

11. Inkamala was aged only 18 at the time of the offence and his cognitive capacity was in the “borderline” range suggesting he was functioning “at a well-below average of intelligence …”.  He possessed “diminished impulse control”.  Significantly he had previously committed the offence of attempting to have sexual intercourse with a female person without her consent.  That offence occurred in November 2000 when the offender was aged 15 years.  A sentence of three years imprisonment was imposed and suspended after service of six months. 

12. The crime under consideration was in breach of the suspended sentence.  A sentence of four years imprisonment was imposed for the crime.  Other orders were made with respect to restoring the previous sentence and accumulation which resulted in a total period to be served of five years imprisonment in respect of which a non-parole period of four years was fixed. 

13. On a Crown appeal, in their joint judgment Mildren and Thomas JJ, having regard to the principle of double jeopardy and having “taken into account the fact that a plea of guilty had been entered, the youth of the offender and the period of time spent on remand”, imposed a sentence of nine years imprisonment for the offence of sexual intercourse without consent.  I agreed with that sentence and indicated that having regard to the principle of double jeopardy, but before making allowance for the plea of guilty, a sentence of 11 years would have been appropriate.

14. In Mununggurr, the appellant was sentenced to 10 years and six months imprisonment following his plea of guilty to sexual intercourse without consent.  The appellant was aged 22 at the time of the offence and the victim was an 11 year old male child. 

15. On the day of the offence, the victim’s mother went hunting leaving the victim and another child asleep in the house at a community near Nhulunbuy.  The victim woke and went looking for his mother.  He walked along a beach and in the course of the walk he saw the appellant who appeared to the victim to be “full drunk”.  The appellant ran ahead of the victim and blocked his escape.  The victim said he was going home, but the appellant walked really fast, grabbed the victim and pushed him to the ground.  The victim cried out for his mother, but was told to be quiet.  The appellant held the victim down with one hand by the shoulder and also punched him causing the victim to cry.  After applying saliva to his penis for lubrication, and having masturbated himself to obtain an erection, the appellant inserted his penis into the anus of the victim and thrust in and out.  Later examination revealed abrasions of the epithelium and anal canal anteriorly, posteriorally and on the right side which were seen externally and stopped at the anal verge, suggesting strongly that they resulted from penetration.  The injuries healed within a week.

16. The offence had a significant emotional and psychological effect upon the victim.  The appellant was intellectually disabled, but understood that what he had done was wrong and was able to express remorse by his plea of guilty.  The learned sentencing Judge assessed the appellant’s prospects of rehabilitation as good. 

17. The sentencing Judge had allowed a reduction of the order of 25% to reflect the appellant’s plea of guilty, thus making her Honour’s starting point 14 years.  The Court of Criminal Appeal dismissed the appellant’s appeal against the severity of the sentence.  The Court determined that although “substantial”, the sentence was “not outside the proper range of the sentencing discretion”. 

18. Regard should also be had to the decision of this Court in Green v The Queen[10].  In 1997 the appellant committed the crime of sexual intercourse without consent and in 1998, in respect of that crime, an indefinite term of imprisonment was imposed.  That indefinite term was discharged in 2004.  In respect of the crime committed in 1997, a sentence of 14 years imprisonment was imposed and a non-parole period of 10 years fixed.  The Judge having allowed a discount for the plea of guilty in the order of 10 – 15%, the starting point for the sentence before allowance for the plea was in the order of 16 years.

19. The offence occurred at Wycliffe Well.  A sideshow was being held in a park and the offender approached the 8 year old victim who was in company with the offender’s nephew.  The offender said to the victim, “come over here, I fuck you” and, when the victim tried to run away, the offender picked him up and placed him under his arm.  The offender took the victim to the rear of an old school building where, after clothing was removed, he inserted his penis into the victim’s anus and proceeded to have anal intercourse with him.  A short time later the offender removed his penis and the victim punched the offender in the testicles and swore at him.  At the time he committed the crime, the offender had an appalling record of prior offending dating back to 1978 and had repeatedly demonstrated a propensity for violence, including violence of a sexual nature against women and children.

20. The appellant’s complaint that the sentence was manifestly excessive was dismissed.  In a judgment with which Justice Southwood agreed, I referred to Riley and Inkamala and, after noting that the sentence was undoubtedly a “severe sentence”, observed that the sentence was not outside the range of sentences properly available to the sentencing Judge.  Justice Angel expressed the view that the sentence was not manifestly excessive.

21. I have also had regard to a range of other sentences imposed in recent years for the commission of sexual assaults against children.  Those previous sentences demonstrate that there is no tariff, but there is always a range of appropriate sentences that can be said to comprise the sentencing “standard” for the offence under consideration.

22. A sentencing standard is not a fixed range or a tariff.  The role of the sentencing standard was explained in the joint judgment of Martin (BR) CJ and Riley J in Daniels v The Queen[11]:

    “29.The role of sentencing standards must be properly understood.  They do not amount to a fixed tariff, departure from which will inevitably found a good ground of appeal.  We respectfully agree with the observations of Cox J in R v King (1988) 48 SASR 555 as to the proper role of sentencing standards (557):

    ‘… In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by the cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it.  Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases.  The terms of approximation in which such standards are usually expressed – “about” and “of the order of” and “suggest” and so on – are not merely conventional. …  It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case.  Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged.  That is not to undermine the established standard but simply to acknowledge that no two cases, not even two “standard” cases, are the same. …’”

23. The decisions in Riley and Inkamala provide a guide as to the sentencing standard for offences of the type under consideration.  They and other cases provide a guide as to the proper range of the sentencing discretion, but each case must be determined according to the particular circumstances of the offences and the offender. 

24. The respondent highlighted a number of differences between the offending and offender now under consideration and the circumstances in each of Riley and Inkamala which he submitted placed those cases in a more serious category.  On the other side, as counsel for the Director pointed out, the respondent’s motive of revenge is a significant aggravating factor that was not present in the previous cases.  A particularly high degree of moral culpability is attached to the respondent’s criminal conduct.  I agree with Justice Southwood’s observations that the crime was callous and heartless.  As I have said, the crime is properly characterised as well within the more serious category of cases of this type.

    Conclusion

25. Having regard to the aggravating factors accompanying the commission of the crime, and in particular to the combination of those factors set out in para [26] of these reasons, and bearing in mind the matters personal to the respondent including his prior record of offending, in my opinion a starting point of 8 years imprisonment was manifestly inadequate.  Given the strength of the prosecution case, including DNA connecting the respondent’s shorts to the child, and bearing in mind the limited nature of any remorse demonstrated by the respondent, the allowance of 25% for the plea of guilty was generous, but within the range of the discretion.  However, the manifestly inadequate starting point resulted in a sentence that was so manifestly inadequate as to demonstrate error in point of principle and to shock the public conscience.  Further, in the context of a sexual crime against a child sitting in the more serious category of crimes of this type, in my opinion the inadequacy is such that this is one of those rare and exceptional cases in which this Court should interfere to correct the error and the departure from the appropriate sentencing standard.

26. When re-sentencing following a successful Crown appeal, this Court is required to fix a lower sentence than would have been imposed when sentencing at first instance in recognition of the element of double jeopardy involved when an offender is required to undergo sentencing on a second occasion for the same criminal behaviour.  Application of this principle often results in the imposition of sentences which sit at the lower end of the range of appropriate sentences.

27. In my view, leaving aside the question of restraint associated with re-sentencing following a successful Crown appeal, and before making allowance for the plea of guilty, the appropriate sentence would be 14 years imprisonment.  Although, as I said in Riley, I have reservations about the application of the principle of “double jeopardy” in these types of circumstances, I am bound by previous authority to apply it.  Applying that principle, and before making allowance for the plea of guilty, I would impose a sentence of 11 years and six months imprisonment.  After allowing for the plea of guilty, I would impose a sentence of nine years and three months imprisonment in respect of which I would fix a non-parole period of seven years.

    Thomas J:

28. I have read the reasons for judgment prepared by Martin CJ.  I agree with his reasons and with his proposed orders.

    Southwood J:

    Introduction

29. On 9 July 2008, the learned sentencing judge sentenced the respondent to six years imprisonment with a non-parole period of four years and six months for the crime having digital/vaginal sexual intercourse with a 10 year old girl without her consent. The maximum penalty for such a crime contrary to s 192(3) of the Criminal Code (NT) is imprisonment for life.

30. The Crown appeals against the respondent’s sentence on the ground that the sentence was manifestly inadequate.

    The facts

31. The facts are as follows.

32. The respondent was born on 5 November 2005. He is 32 years of age. He was born in Darwin, but was raised in a remote community. Although both of the respondent’s parents are alive, they separated many years ago when he was very young and they have not had much to do with his upbringing. His mother misused alcohol and the respondent was brought up by other relatives.

33. The respondent only attended school for a short period of time, perhaps two or three years altogether. He is unable to read or write. He speaks English as a second language. On leaving school he obtained a little CDEP work, such as house painting, but most of his time seems to have been spent either in prison or in the long grass drinking alcohol.

34. The respondent has a number of prior convictions starting from 1991 when he was a juvenile. His previous convictions include convictions for property damage, dishonesty offences, motor vehicle offences, an offence of indecent assault, an offence of aggravated assault and an offence of unlawfully causing grievous harm. His record also shows that he had his bail estreated on two occasions in 2007.

35. Significantly, the respondent has a prior conviction for indecent assault when he was 16 years of age. He assaulted a young girl who was riding a bicycle.  He dragged her 100 metres into a park while fondling her breasts. He held his hand over her mouth to prevent her from calling out. However, she was able to scream out for help and she was rescued by nearby residents while the respondent ran off. The respondent was given a suspended sentence of detention.

36. On 13 November 1997, the respondent was convicted of aggravated assault in the Supreme Court in very similar circumstances. The respondent grabbed a 16 year old girl who was walking along Lee Point Road around the neck. He forced her pants down, but she screamed and residents were able to come to her rescue. The respondent was 20 years of age at that time. He was convicted and sentenced to a term of three years imprisonment and the Court fixed a non-parole period.

37. On 15 August 2002 the respondent was convicted of unlawfully causing grievous harm. His victim was his de facto wife, V. He stabbed her near the spinal cord with a screwdriver in the course of an argument. She sustained spinal injuries and has had to use a walker and have her house modified as a consequence. The offender was sentenced to a term of imprisonment for four years and six months with a non-parole period of three years and six months. He was released from prison in September 2005. The offending which is the subject of this appeal occurred about six months after the completion of his parole period.

38. The respondent and his de facto wife, V, started living together in 2001. V has three children from previous relationships including the victim in this appeal, BKW, who was born on 24 July 1996.

39. On 7 March 2007, the Court of Summary Jurisdiction made a domestic violence order against the respondent for the benefit of V. The order was a "full non-contact order" for a period of 12 months.  It prohibited the respondent from approaching V or going anywhere near her place of residence. The order was served on the respondent on 17 April 2007.

1. After the domestic violence order was served on the respondent, he and V resumed contact. On Saturday 7 July 2007, the respondent went to V's house in Maningrida in an angry mood. He began arguing with her and she became fearful of him. After a period of time the argument resolved and the respondent left the house in the early evening. After the respondent left, V contacted the police to enforce the domestic violence order. The police attended at V’s house and took V to the police station to take a statement from her and to make certain other arrangements for her.

2. The respondent became aware that V had contacted the police and he became angry and upset about this. At about midnight on the same night, he climbed through a vacant air conditioning window and into a bedroom in V's house. He found BKW asleep in the bedroom. He carried her out of the house and across the road to some bushland behind the medical clinic. He placed her on the ground and he removed her shorts and underpants. He then removed his own shorts. BKW asked to be taken home, but the respondent told her that they were waiting for her mother. He lay down beside BKW, held her body still and inserted two fingers of his right hand into her vagina. He did this with some force. He inserted the full length of his finger into BKW’s vagina and he moved his fingers in and out of her vagina. He did this for some time. BKW did not say anything. At one point the respondent got on top of BKW with the intention of having penile/vaginal sexual intercourse with her, but he was unable to successfully maintain an erection. He saw blood coming from the BKW’s vagina and he said to her, "I will get off" and he did so. He and BKW then walked back to V’s house where the respondent left BKW. He left her outside the house.

3. In the meantime, V had returned home and discovered that BKW was not in her bedroom. A short time later, BKW knocked on the front door. Upon opening the door, the family saw extensive bleeding coming from between BKW’s legs. She told her grandmother that the respondent had raped her.

4. The police were contacted and attended and a nurse from the clinic also arrived at the house. BKW was lying on a mattress on the floor, crying and shaking. When she stood up some blood clots dropped to the floor and she also vomited. She was taken to the clinic. At about 5.30 am on 8 July 2007 arrangements were made for BKW to be flown to Darwin for medical treatment.

5. At 10.15 am on 8 July 2007, BKW was examined under anaesthetic at the Royal Darwin Hospital. On genital examination, she had pre-pubertal genitalia. There was a deep laceration to the hymen extending into the posterior fourchette and the perineum. The laceration extended internally almost the full length of her vagina and required surgical repair.  There were no injuries to the anus or rectum.

6. BKW remained as an inpatient at the Royal Darwin Hospital for three days following the surgical repair of her vagina and the perineal injuries. She received preventative antibiotics for protection against sexually transmitted infections.

7. At 10.30 am on Sunday 8 July 2007, the respondent was arrested. On 10 July 2007 he participated in an electronic record of interview during which he admitted the offending. He told the police that he committed the offence because he was angry with V for contacting the police about his breach of the domestic violence order.

8. Shortly before the committal date, the respondent informed the prosecution that he intended to plead guilty to the offence. The matter then proceeded as a hand up committal.

   Sentencing remarks

9. When sentencing the respondent the learned sentencing judge made the following remarks:

   So far as this offending is concerned, it seems that the motive for the offending was to punish your wife for reporting you to the police for breaching the domestic violence order.

   This is a very serious offence and there must be a sentence of condign punishment to deter you and others like you from offending in a similar way. The courts have said on numerous occasions that the courts must protect children from crimes of this nature and show to the community by the sort of sentences that are imposed that such offending will not be tolerated.

   So far as your future prospects of rehabilitation are concerned, it was put on your behalf that you are willing to undergo courses whilst you are in prison, particularly to deal with your anger management and consumption of drugs. I note that you were under the influence of kava and marijuana at the time of this offending.

   Nevertheless, looking at your record as a whole I do not consider that your prospects of rehabilitation are very good. Although you have expressed your remorse which shows that you have some insight into your offending, it seems to me that your principal concern is for yourself. Your history of previous convictions and sentences has not deterred you from re-offending thus far. You are still relatively young, but you have virtually no work history and there is really little of substance to suggest that you are likely to reform in the future. About the only thing that can be said for you is that you did not re-offend whilst on parole, so perhaps there is some hope for your rehabilitation, although, as I have said, I still consider your prospects to be poor.

   You are convicted and sentenced to a term of imprisonment for six years. But for your early plea of guilty, your cooperation with the authorities and the limited remorse you have shown I would have imposed a sentence of eight years imprisonment. I fix a non-parole period of four years and six months. Your sentence and non-parole period is backdated to commence from 8 July 2007.

   The argument of the Crown

10. The Crown argues that the sentence of six years imprisonment with a non-parole period of four years and six months is manifestly inadequate. The respondent’s offending was extremely serious and falls within the more serious category of crimes of sexual intercourse without consent. The respondent’s motive for committing the crime was revenge and there were no mitigating circumstances accompanying the commission of the crime. Offences motivated by revenge carry a high degree of moral culpability. The respondent’s motive was a significant aggravating factor given that the act of revenge was occasioned by the lawful act of the victim’s mother making a report to police, and the act of revenge was directed at an innocent, helpless child in respect of whom the respondent had a relationship of trust.

11. While the cases of Green v The Queen[12], R v Inkamala[13], and R v Riley[14] do not establish a tariff, they are a useful guide to the exercise of the sentencing discretion as they provide the relevant sentencing standard for cases of digital/vaginal sexual intercourse of a child without consent that are towards the worst end of such offending. The starting point in sentencing the respondent for such a crime, before allowing for any reduction in the sentence for an early plea of guilty, is a sentence of imprisonment of between 12 years and 14 years and six months. The starting point should not be decreased as the age of the child increases.

    The argument of the respondent

12. The respondent argues that there is no tariff for offences such as this and the appellant has not demonstrated that the learned sentencing judge erred in principle. The cases of Green, Inkamala and Riley, which were referred to by the Crown, are not the same as the present case and the correct approach is to sentence according to the facts of each case.

13. The test about manifest inadequacy that was enunciated by King CJ in The Queen v Osenkowski[15] is potentially a highly subjective test and appellate courts must be careful to ensure that they do not merely substitute their own exercise of the sentencing discretion for that of the trial judge. The test enunciated by King CJ was elaborated upon by Redlich JA in DPP v Bright[16] at par [10] where his Honour stated:

    “A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R v Clarke and Director of Public Prosecutions (Vic) v Johnston. One is that an appeal should not be brought unless the sentence reveals such ‘manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle’. An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be ‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime, as to shock the public conscience and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’. When re-sentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal, arising from the respondent's exposure to sentencing on a second occasion for the same crime. Because of the element of double jeopardy, Crown appeals are regarded as having a ‘rare and exceptional’ character which calls for restraint, even where manifest inadequacy may be present, the Court having an overarching discretion not to interfere. Double jeopardy is a factor which must be considered in both the Court's determination of whether this Court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy.”

14. Similar statements were made by the Victorian Court of Criminal Appeal in DPP v BW[17]. At par [63] Whelan AJA stated:

    “A DPP appeal should not be brought unless the sentence reveals such manifest inadequacy as to constitute error in principle.

    Manifest inadequacy alone will not be sufficient to warrant appellate intervention. The inadequacy must be clear and egregious. The sentence must be so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the Courts to play their part in deterring crime.

    On a DPP appeal the offender is exposed to sentencing on a second occasion for the same crime. This is often referred to as double jeopardy. It has two consequences. First, because the offender is exposed to double jeopardy the appellate court must exercise restraint and has an overarching discretion not to interfere even where manifest inadequacy is present. Second, if the appeal is allowed any different sentence to be imposed must allow for the double jeopardy to which the offender is exposed.”

15. Finally, the respondent contended that the sentence of imprisonment imposed by the learned sentencing judge was a substantial sentence of imprisonment. The sentence of imprisonment is not so disproportionate to the objective seriousness of the crime so as to undermine public confidence in the ability of the Courts to play their part in deterring crime.

    The principles

16. When considering whether a sentence is manifestly inadequate, this Court has consistently applied the test enunciated by King CJ in Osenkowski at 212 to 213 where his Honour stated:

    “It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”

17. The remarks by King CJ, in Osenkowski at 212 to 213, have also been applied and followed by the Victorian Court of Appeal and the Victorian Supreme Court, see for example, Director of Public Prosecutions v Kia Toumngeun[18]; Director of Public Prosecutions v Darren John McClelland[19] and DPP v Josefski[20]; and by the New South Wales Court of Criminal Appeal in R v Carroll[21] per Simpson J at par [48] and par [49].

18. The Victorian authorities relied on by the respondent and referred to in par [24] and par [25] above, appear to be based on the following statement of McHugh J in Everett v R[22] at 306:

    “The approach of a court to a jurisdiction that specifically authorizes a Crown appeal against sentence must necessarily be different from the approach that this Court takes on an application for special leave to appeal against an order setting aside a conviction. The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.”

19. However, his Honour went on to state at p 306 that:

    “If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved. Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence. The requirement of leave gives rise to the inference that Parliament intended that something more than mere error was to be the criterion of the grant of leave. The sentences in the present matters seem lenient. At all events, that was the opinion of every member of the Tasmanian Court of Criminal Appeal. If the Court of Criminal Appeal had merely concluded that the sentences were definitely below the appropriate range for this class of offence, I would not have been in favour of the grant of special leave to appeal in these matters even if I had thought that that conclusion was incorrect.”

20. I accept the appellant’s submissions that McHugh J was not intending to lay down some new test applicable to Crown appeals. His Honour was doing no more than articulating what the policy considerations are for permitting Crown appeals. In my opinion the test enunciated by King CJ in Osenkowski at 212 to 213 still remains valid and this Court should continue to apply that test: Wong v The Queen[23] per Gleeson CJ at 591 to 592.

    Sentencing Standards

21. In my opinion, the decisions of the Court of Criminal Appeal of Green, Inkamala and Riley establish that crimes of digital/vaginal sexual intercourse with a child without consent such as the crime committed by the respondent, where the aggravating features of the offending remove the offending from “run of the mill” offending, are to be treated as extremely serious crimes. The decisions of Green, Inkamala and Riley involve determinations by the Court of Criminal Appeal that, depending on the aggravating features of the individual case, cases involving digital/vaginal penetration may be as serious or more serious than cases involving penile vaginal penetration; and, such crimes which involve premeditation, a vulnerable and defenceless child, abduction or removal of a child from a child’s home to a remote area of bush, and force that causes significant injury to a child’s vagina may be considered to be towards the upper level of crimes of sexual intercourse without consent. Subject to the relevant discretionary considerations that are applicable in all cases, the three decisions of the Court of Appeal indicate the order of the sentence that might be expected to be attracted by offenders who commit such crimes.

22. It is nonetheless important to observe what was stated by Martin (BR) CJ and Riley J in Daniels v The Queen[24] at par [29] namely:

    “The role of sentencing standards must be properly understood. They do not amount to a fixed tariff, departure from which will inevitably found a good ground of appeal. We respectfully agree with the observations of Cox J in R v King (1988) 48 SASR 555 as to the proper role of sentencing standards (at 557):

    ‘... In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by the cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it. Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases. The terms of approximation in which such standards are usually expressed – ‘about’ and ‘of the order of’ and ‘suggest’ and so on - are not merely conventional. ... It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case. Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged. That is not to undermine the established standard but simply to acknowledge that no two cases, not even two ‘standard’ cases, are the same.’ ...”

23. Subject to the above statement of principle, I accept the appellant’s submission that the decisions of the Court of Criminal Appeal in Green, Inkamala and Riley provide “empirical standards of comparison” for very serious examples of digital/vaginal sexual intercourse with a child without consent. The decisions provide a valid indication of the prevailing range of sentences for comparative conduct: R v Anzac[25].

    Resolution

24. The crime committed by the respondent is an extremely serious crime. The objective seriousness of the crime, including its aggravating features, places the respondent’s crime in the more serious category of cases of sexual intercourse without consent.

25. The following features of the crime are of particular significance. First, the victim was a 10 year old child with pre-pubertal genitalia. She was asleep in her bedroom and she was unable to offer any resistance whatsoever when the respondent abducted her. Secondly, the respondent was 31 years of age at the time he committed the crime. Thirdly, the crime was premeditated. Fourthly, the respondent deliberately abducted the victim from her home at night with the intention of having sexual intercourse with her without her consent. Fifthly, the respondent’s crime was motivated by revenge against the victim’s mother because she attempted to enforce her legal rights against the respondent and enforce a domestic violence order. He must have appreciated how terrified and alarmed the victim’s mother would have been when she returned home to find her daughter missing. Sixthly, the victim was debased and humiliated and she was seriously injured. It was necessary for her to be evacuated from her home to the Royal Darwin Hospital where she remained for three days while she underwent the surgical procedures that were necessary to repair the injuries that she sustained. The full extent of any emotional or psychological injuries suffered by the victim may not be known for many years.

1. The crime committed by the respondent is the stuff of nightmare. It is the kind of crime that causes fear in the community. What the respondent did to his young victim was callous and heartless. He deliberately engaged in violent conduct against a child in order to punish her mother for taking steps to protect herself from the respondent and ensure her safety. There were no mitigating circumstances accompanying the commission of the crime and as a result of his prior offending the respondent has lost any significant entitlement to leniency.

2. I accept Mr Karczewski’s submission that offences motivated by revenge carry a high degree of moral culpability. In my opinion the idea of having sexual intercourse with a child without her consent to exact revenge against her mother is utterly repellent: Tahche[26]. 

3. While the respondent, like many Aboriginal offenders, has grown up in deprived and dysfunctional circumstances and such circumstances excite considerable sympathy, they can receive only very limited weight by way of mitigation when viewed against the gravity of the respondent’s criminal conduct: R v Riley[27]. The respondent is of normal intelligence and the crime that he committed is not tolerated by Aboriginal law or culture. The respondent is a mature adult who knew that what he did was wrong. He deliberately committed a heinous crime.

4. The primary factor in the sentencing process was the protection of children in the community and the maintenance of their rights of security and safety. In the circumstances of this case, it was necessary to give very substantial weight to retribution, denunciation and deterrence.

5. In my opinion the sentence of imprisonment that was imposed on the respondent by the learned sentencing judge is so manifestly inconsistent with the range of sentences established in the cases of Green, Inkamala and Riley as to constitute error in principle. The sentence is so disproportionate to the seriousness of the crime that it is likely to shock the public conscience. The learned sentencing judge’s remarks as to the seriousness of the offending are not reflected in the actual sentence that was imposed.  This is one of those rare and exceptional cases in which the Crown appeal should be allowed and the respondent re-sentenced.  It is important that the Court should uphold the standards of sentencing that it has established as appropriate to this type of crime.

   Re-sentencing

6. Before making allowances for the principle of “double jeopardy”, which applies to Crown appeals, and for the respondent’s plea of guilty, I would have considered that a sentence of 14 years imprisonment was an appropriate sentence for the crime committed by the respondent. Applying the principle of “double jeopardy”, and before making any allowance for the respondent’s plea of guilty, I consider that the appropriate sentence would be 11 years and six months imprisonment. As a result of the respondent’s plea of guilty, I would allow a reduction in the sentence of imprisonment of two years and three months. The appellant’s case against the respondent was a strong case and the respondent’s guilty plea was largely of utilitarian value. It was also unnecessary for the victim to be cross examined. In his remarks the learned sentencing judge stated that, although the respondent had expressed remorse, which showed that he had some insight into his offending, his principal concern was for himself. After allowance is made for the respondent’s plea of guilty, I would impose a sentence of imprisonment of nine years and three months and I would fix a non-parole period of seven years.

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[1] (2006) 161 A Crim R 414 at [9] – [12].

[2] (2006) 161 A Crim R 414 at [18] – [20], [34].

[3] (1982) 30 SASR 212 at 213.

[4] [2004] SASC 299 at [20] and [21].

[5] [2004] SASC 358 at [77].

[6] R v Nemer (2003) 87 SASR 168 per Doyle CJ at [24].

[7] (2006) 161 A Crim R 414.

[8] [2006] NTCCA 11.

[9] [2006] NTCCA 16.

[10] (2006) 19 NTLR 1.

[11] (2007) 20 NTLR 147 at [29].

[12] (2006) 19 NTLR 1.

[13] [2006] NTCCA 11.

[14] (2006) 161 A Crim R 414.

[15] (1982) 30 SASR 212.

[16] (2006) 163 A Crim R 538.

[17] [2007] VSCA 171.

[18] [2008] VSCA 91.

[19] [2008] VSCA 168.

[20] (2005) 13 VR 85.

[21] [2008] NSWCCA 218.

[22] (1994) 181 CLR 295.

[23] (2001) 207 CLR 584

[24] (2007) 20 NTLR 147.

[25] (1987) 50 NTR 6 per Nader J at 13.

[26] (1992) 62 A Crim R 75, 80.

[27] (2006) 161 A Crim R 414 per Martin CJ at [14].