R v Sumner & Sumner - [2007] SASC 376

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SUMNER & SUMNER
[2007] SASC 376
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
2 November 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Two defendants convicted of multiple rapes on the one complainant - appeal against convictions by one defendant - whether evidence sufficient to establish that appellant was present and engaged in sexual acts with complainant - whether jury adequately directed concerning DNA evidence - whether jury adequately directed as to evidence led as proof of recent complaint - whether jury properly directed concerning legal elements of guilt by aiding and abetting - whether evidence sufficient for a jury acting reasonably to find the appellant guilty.
Held: Appeal against convictions dismissed - DNA and other evidence of identification was sufficient to enable a jury acting reasonably to convict the appellant - no misdirection to jury concerning DNA evidence, recent complaint or legal elements of aiding and abetting - no miscarriage of justice.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Appeals by Director of Public Prosecutions against sentences imposed by trial judge - first and second respondents found guilty by a jury of five and four counts of rape respectively - each respondent sentenced to imprisonment of five years and six months, with non-parole periods of two years and three months - whether sentences manifestly inadequate - whether sentences so low as to justify interference with discretion of sentencing judge.
Held: Appeals against sentences allowed - sentences manifestly inadequate - respondents re-sentenced - first respondent sentenced to imprisonment of eight years, to be served cumulatively upon the reduced sentence of imprisonment for one month imposed by the judge in respect of a previously suspended sentence - second respondent sentenced to imprisonment of eight years - non-parole periods of four years fixed in respect of each respondent.
Criminal Law Consoliation Act 1935 (SA) s 353, referred to.
Chamberlain v The Queen [No 2] (1984) SASR 203; R v Coney (1882) 8 QBD 534, applied.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168, discussed.
Chidiac v The Queen (1991) 171 CLR 432; Cleland v The Queen (1982) 151 CLR 1; Giorgianni v The Queen (1985) 156 CLR 473; M v The Queen (1994) 181 CLR 487; R v Phan (2003) 53 NSWLR 480; Randall v The Queen (2004) 146 A Crim R 197; R v Wilton (1981) 28 SASR 362; R v Elliott (2001) 121 A Crim R 254; R v Margetson (1984) 112 LSJS 263; Heuston v R (1993) 171 LSJS 479; R v Ball, Bunce & Callis (1993) 169 LSJS 293; DPP v Cowey (1995) 182 LSJS 345; R v Draper (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Cox, Olsson and Bleby JJ, 23 April 1997, Judgment No S6135); R v Colbert [1998] SASC 6801; R v Daly [1999] SASC 428; R v Armstrong [2002] SASC 174; R v Hitchens (1995) 184 LSJS 333; R v Barraclough (1988) 144 LSJS 183; Dinsdale v The Queen (2000) 202 CLR 321; R v Ivic [2006] SASC 8; R v Robinson [2004] SASC 189, considered.

R v SUMNER & SUMNER
[2007] SASC 376
Court of Criminal Appeal: Gray, Sulan and White JJ
GRAY J.
Application for Permission to Appeal Against Conviction

The applicant, Darren Sumner, was found guilty by jury verdict of four offences of rape. His co-accused, Major Lancelot Sumner, was found guilty of five offences of rape. Darren Sumner has sought permission to appeal.
I would refuse Darren Sumner permission to appeal against conviction. I agree with the reasons of White J. However, I wish to express my views on the issue of identification.
The primary issue advanced by Darren Sumner in support of the setting aside of his convictions for the offences of rape, was a suggested lack of evidence of identity. It was said that having regard to the DNA evidence it could not reasonably be concluded that the Crown had discharged the burden of proof concerning identity.
The Crown case with respect to the identity of Darren Sumner was circumstantial. That evidence has been catalogued by White J. However, there was also direct evidence of identification before the jury. This was given by Major Lancelot Sumner during the presentation of his defence at trial. He spoke of Darren Sumner’s involvement in the conduct the subject of the charges. The evidence was unequivocal and detailed. Major Lancelot Sumner was a cousin of Darren Sumner and knew him well. Major Lancelot Sumner’s evidence of Darren Sumner’s involvement was not given in circumstances where he was seeking to avoid a finding of guilt on the basis of the implication of another. Major Lancelot Sumner’s case was that the complainant had willingly engaged in the acts to which Darren Sumner was relevantly a party. The totality of the evidence both direct and circumstantial provided an overwhelming case with respect to the identity of Darren Sumner.
Before DNA evidence can be used as the basis for relevant statistical probability evidence of a person’s involvement or non-involvement in particular conduct, there must be a sufficient sample from the donor and from the crime scene to allow a forensic analysis to be undertaken and then a statistical analysis to be performed. In the absence an adequate sample from either the donor or donee, the relevant analysis cannot be undertaken. An insufficient sample may preclude any statistical conclusion being reached. This was the position in the present case. The sample taken from the crime scene, that is from the complainant, was inadequate. There were a number of possible explanations for this as detailed in the reasons of White J. No relevant conclusion concerning Darren Sumner could be drawn. The consequence was that the DNA evidence was not probative of Darren Sumner’s involvement or non-involvement in the alleged criminal conduct.
Application for Leave to Appeal against Sentence
The Director of Public Prosecutions has sought leave to appeal against the sentences imposed on Darren Sumner and Major Lancelot Sumner. Both were sentenced to a term of imprisonment of five years and six months with respect to the offences of rape. Major Lancelot Sumner was imprisoned for a further period of one month as the result of the revoking of a suspended sentence. A non-parole period of two years and three months was fixed with respect to both respondents.
I would grant the DPP leave to appeal against the sentences imposed on both respondents. I would allow the DPP’s appeals. I agree with the reasons of White J, however, I wish to separately address one issue.
The DPP’s applications highlight the need for the maintaining of sentencing standards. The sentences imposed were well below the sentences that could be expected for the subject offending. The offence of rape carries a maximum penalty of life imprisonment. The criminal conduct of both respondents was very grave. They attacked a vulnerable and defenceless young woman and subjected her to repeated degrading and humiliating criminal acts over a lengthy period. This conduct, not surprisingly, left the complainant with serious short and long-term psychological damage. The criminal court has an obligation when sentencing to protect the young and vulnerable. This protection is achieved by the maintaining of sentencing standards adequate to provide the necessary level of general deterrence. The gravity of the respondents’ conduct called for lengthy and immediate terms of imprisonment. The absence of contrition and remorse preclude otherwise leniency. Notwithstanding the relative young age of the respondents, there is a need to substantially increase the terms of imprisonment imposed by the sentencing Judge. In the circumstances, the sentences imposed were manifestly inadequate.
As earlier observed, I would grant leave and allow both appeals. I would set aside the sentences imposed by the District Court and re-sentence the respondents. I would sentence Major Lancelot Sumner to a term of imprisonment of eight years. The sentence of one month in respect of the suspended sentence is to be served cumulatively upon the sentence of imprisonment of eight years. I would fix a non-parole period of four years. With respect to Darren Sumner, I would impose a sentence of eight years imprisonment. I would fix a non-parole period of four years. I would direct that the sentences in respect of both respondents commence on the day they were taken into custody; 22 February 2007.
SULAN J: I would refuse Darren Sumner permission to appeal against his convictions. I agree with the reasons of White J.
As to the applications for permission to appeal by the Director of Public Prosecutions against the sentences imposed on Major Lancelot Sumner and Darren Sumner, I would grant permission to appeal. I would allow the appeal, set aside the sentences imposed upon the respondents by the District Court and substitute a sentence of eight years for Major Lancelot Sumner and eight years for Darren Sumner. In the case of Major Lancelot Sumner, the sentence of one month in respect of the suspended sentence is to be served cumulatively upon the sentence of imprisonment for eight years.
In respect of both respondents, I would impose a non-parole period of four years, the sentences and non-parole period in each case to commence on 22 February 2007.
I agree with the reasons of White J.
WHITE J: The first respondent, Major Sumner, was found guilty by a jury of five offences of rape. The second respondent, Darren Sumner, was found guilty by the same jury of four offences of rape. Each of the offences was committed on 5 February 2003 and each involved the same complainant.
The judge sentenced each respondent to a single term of imprisonment for five years and six months for the rapes. In addition, in the case of the first respondent, the judge revoked a suspended sentence bond and directed that he serve one month of the suspended sentence cumulatively upon the sentence of five years and six months. The judge fixed non-parole periods in each case of two years and three months.
These circumstances have given rise to three applications for permission to appeal. The second respondent seeks permission to appeal against his conviction on all counts. Permission to appeal had previously been refused by a single judge. The Director of Public Prosecutions seeks permission to appeal against each of the sentences, arguing that they are manifestly inadequate and disproportionate to the seriousness of the offences involved.
The Circumstances of the Offending
The complainant was a 19 year old student who had come to Adelaide in January 2003 to commence university studies. At about 9.45 pm of 4 February 2003 she walked from her home to the Henley Beach Square in order to post some letters. While at the Square a group of four men, not previously known to her, struck up a conversation with her. The group comprised two Aboriginals, an Ethiopian who gave his name to the complainant as Robel, and a Caucasian. The complainant could not remember the names of the two aboriginal men. She distinguished between them by referring to one who was chubby and wearing a blue shirt, and the other as “the footballer” (she having been told that he was a football player). The jury verdicts indicate that these two men were the first and second respondents respectively. It is convenient in these reasons to refer to them in that way without thereby intending any pre-judgment of the second respondent’s challenge to the jury verdicts. The Caucasian male was identified by the first respondent and Robel at trial as Michael Smith.
The group invited the complainant to have a drink with them, which they provided from an Esky. It was a warm night and there were numerous other people socialising in and about the Henley Beach Square.
It seems that the complainant remained with the group until about 1.00– 1.30 am the following morning. At various times the group was in the Henley Beach Square itself and at other times down on the beach. Each member of the group drank some beer and whisky. The complainant drank at least one small bottle of beer. After some time the conduct of the men became familiar, later sexually suggestive, and later still, sexually explicit. In separate incidents following a discussion about tattoos and piercings, Smith and Robel pulled down the complainant’s top so as to expose her pierced nipples. On each occasion the complainant told them to stop. At one stage Robel placed the complainant’s leg over his leg and commenced reaching under her skirt. The complainant removed his hand and her leg. She then stood up to leave but was encouraged to remain. Later, when the complainant announced again that she was leaving, Smith asked if he could borrow her mobile telephone in order to call a taxi. By this time most of the other people who had been socialising in the area had left. It is not clear whether Smith used the telephone at all. When the complainant asked for it back, he placed it on a park bench. The complainant was then distracted but when she went to pick it up it was gone. At about this time the language of the men became more sexually explicit. Smith asked her to perform oral sex on him and to come to a public toilet for that purpose. Others suggested that the complainant should have sexual intercourse with one or more members of the group. The complainant declined. When she asked again for her mobile telephone, Smith said that he did not have it. He invited the complainant to search him for it and simultaneously pulled down his pants and lifted his shirt, exposing his genitals.
Robel, followed by Smith and the second respondent, then left by walking down a ramp leading to the front of the nearby Surf Life Saving Club premises. The complainant was left with the first respondent. She asked him for assistance in getting her telephone back. When it seemed that that assistance was not going to be provided, the complainant then followed the other three men and, in turn, was followed by the first respondent. She thought that she saw Robel holding a telephone to his ear and repeated her request for the return of her telephone. Shortly afterwards, the complainant was pushed forcibly from behind causing her to fall heavily against the wall of the Surf Life Saving Club and then on to a concrete path. When the complainant got back up she saw that the two respondents and Smith were present. She asked who had pushed her but was fobbed off with an answer by Smith. Smith left and the complainant described herself as being cornered by the two respondents, ie, by them pressing their bodies against hers on either side. The complainant told them that she wanted to leave but was told by the first respondent that if she did not cooperate she would not see the sunrise, and that there was no point in fighting.
The complainant was then told twice by the first respondent to remove her skirt and her underwear. She commenced doing this but was then pulled by the arm by the first respondent down to the beach. The second respondent followed. At a place near some rocks the complainant was again told to remove her underwear and to lift her skirt up. She did so. The second respondent then penetrated her vagina digitally, before spitting some saliva onto the vagina and rubbing it in. He then had vaginal sexual intercourse with the complainant. Before that happened there had been some discussion between the two respondents about the use of a condom in order to “cover up” their DNA. However, condoms were not used. While the second respondent was having vaginal intercourse with the complainant, the first respondent forced her to engage in an act of fellatio with him. When this was completed the first respondent forced the complainant to lick his anus. The second respondent then again penetrated the complainant’s vagina digitally and had penile sexual intercourse for a second time. While this was happening the first respondent forced the complainant to perform a second act of fellatio on him. At various times each of the respondent said words of a degrading and humiliating nature to the complainant.
Both respondents then pulled the complainant down to the sea and took her out to just below waist level. The complainant thought that she was going to be held under water. Instead, the first respondent pulled the complainant down into the water and commenced washing her vagina, both internally and externally. The complainant was also made to rinse out her mouth with sea water. It is evident that these activities were an attempt to remove any residual saliva or semen. However, while in the water, the second respondent engaged in two further acts of vaginal sexual intercourse with the complainant. During the first of them, the first respondent digitally penetrated the complainant’s anus. The second respondent then walked away. While he was away the first respondent forced the complainant to perform an act of fellatio on him. By this stage the complainant was at the shoreline. The first respondent then attempted vaginal sexual intercourse but could not obtain a full erection. The second respondent returned. He told the complainant to engage in behaviour to arouse the first respondent and then left again. The first respondent then had vaginal sexual intercourse with her. He then left the complainant. The complainant gathered her clothing, walked up to the Esplanade, hailed a taxi and went home. Upon arriving, she immediately rang the police to make a report.
It is evident that charges were not laid in respect of all of the instances of intercourse alleged by the complainant. The five incidents which were the subject of the charges were the first penile-vaginal penetration of the complainant by the second respondent, the first act of fellatio involving the first respondent, one of the two acts of penile-vaginal intercourse in the sea by the second respondent, the act of fellatio in the sea involving the first respondent and the act of penile-vaginal sexual intercourse by the first respondent on the shoreline.
Each of the respondents was charged with the five offences as participants in a joint enterprise or as aiders and abettors. The trial judge directed the jury that the second respondent could not be guilty as a participant in a joint enterprise, or as an aider and abettor, in the fourth offence (the act of fellatio involving the first respondent while in the sea) because he had not been present while that offence was committed. That explains the conviction of the first respondent on all counts and of the second respondent on four counts.
Both the first respondent and Robel gave evidence at the trial (the latter being called by the prosecution). The second respondent did not give evidence and no evidence was led from Michael Smith. It seems that he had not been able to be located at any stage since 5 February 2003. The first respondent admitted engaging in acts of sexual intercourse with the complainant but claimed that it was consensual. The defence advanced on behalf of the second respondent was that the evidence was insufficient to establish that he was one of the two men who had sexual intercourse with the complainant. The jury verdicts indicate that each of those defences was rejected.
Appeal Against Convictions by the Second Respondent : the DNA Evidence

The first contention of the second respondent on his application for permission to appeal was that the DNA evidence made his convictions unreasonable or, in the alternative, unsafe and unsatisfactory.
Samples for the purposes of DNA analysis were taken from the complainant before 1.45 pm on 5 February 2003. The samples included a high vaginal swab and a low vaginal swab. Male sperm was detected in each of those swabs. DNA extracted from the sperm in the high vaginal swab matched that of the first respondent. The DNA matching that of the second respondent was not detected in the high vaginal swab.
The analysis of the DNA obtained from the low vaginal swab was a little more complex. The amount of sperm extracted was relatively small and there were difficulties in the laboratory in isolating the sperm cells from epithelial cells. DNA which was extracted could have been either spermal or epithelial in origin. Mr Sobieraj, the forensic scientist, considered that at least three persons had contributed to the DNA extracted from the low vaginal swab. It seemed likely that two of those persons were the complainant and the first respondent.
On initial analysis, Mr Sobieraj thought that the second respondent could be excluded as a contributor to the DNA extracted from the low vaginal swab. However, on a revised analysis, he thought that the second respondent could not be excluded as the contributor of the alleles at two of the hypervariable sites. Mr Sobieraj also said that there were alleles at another two of the hypervariable sites which could not be attributed to the complainant or to either of the two respondents. He concluded that there was insufficient information in the entire profile from which to conclude that DNA matching that of the second respondent had been detected in the low vaginal swab.
In relation to the possible contribution by a third person to the DNA found in the lower vaginal swab, Mr Sobieraj gave this evidence:
Q.Just so I’m clear on this, if you’re assuming [the complainant] and Major Sumner are contributors and Darren Sumner is not a contributor, then it’s possible there is a third person unknown who contributed to this low vaginal swab.
A.Yes, that’s a possibility.
Q.If you take the assumption that Major Sumner, Darren Sumner and [the complainant] contributed to the sample, then it’s possible there’s a fourth contributor to the sample.
A.Yes that’s a possibility.
Mr Sobieraj elaborated on this evidence in the following passage:
His Honour:
Q.Assume for the moment that two persons had sexual intercourse with [the complainant] and contributed to the DNA profile.
A.Right.
Q.Can you exclude Darren Sumner as being one of those two persons?
A.If only two males had sexual intercourse with [the complainant] and only those two males were the sources of the DNA recovered from the low vaginal swab, then Darren Sumner would be excluded as being the source of – one of the sources of the DNA and it is because of that additional DNA at D13S317 and at FGA that he would be excluded. So perhaps just to repeat that, if only two males had intercourse under this assumption with [the complainant] and only those two males accounted for the DNA observed from the low vaginal swab, then Darren Sumner does not account, Darren Sumner and Major Sumner do not account for all of the DNA detected from that low vaginal swab.
XXN
Q.So you could exclude Darren Sumner as a contributor.
A.Yes, that’s correct.
It is plain that the last question and answer have to be read as being subject to both the assumptions identified in the immediately preceding answer. Mr Sobieraj was not stating an unqualified proposition that the second respondent could be excluded as a contributor to the DNA extracted from the low vaginal swab.
The complainant’s evidence was that there had been only two men who had sexual intercourse with her during the course of the rapes. She also said that the last occasion on which she had had sexual intercourse had been two weeks prior to the incident. It was common ground that the DNA extracted from the swabs taken on 5 February 2003 could not be attributed to semen left during intercourse occurring two weeks previously.
The submission of Mr Coates, who appeared for the second respondent, was that if, as the complainant said, only two men had had sexual intercourse with her on the beach, the forensic evidence excluded the second respondent as one of these men. First, because it could not be said that any DNA matching that of the second respondent had been detected in the vaginal swabs, and secondly, because the presence of unidentified DNA indicated the involvement of some other male. These considerations should, at the least, have raised a reasonable doubt in the jury’s mind about the involvement of the second respondent. Accordingly, the verdicts of the jury concerning the second respondent should be held to be unreasonable or unsafe.[1]
[1] M v The Queen (1994) 181 CLR 487; Chidiac v The Queen (1991) 171 CLR 432 at 442-4.
Consideration of the Reasonableness of the Jury’s Verdicts
The prosecution did not lead identification evidence of a conventional type from the complainant. Instead, it led evidence from the complainant that the men who had had sexual intercourse with her were the two aboriginal men in the group with whom she had earlier socialised. It then relied on other evidence to establish that the first and second respondents were those two men.
Although the DNA evidence was important in implicating the first respondent, the prosecution case against the second respondent did not depend upon the DNA evidence derived from the vaginal swabs. Instead, in addition to the complainant’s evidence, the prosecution presented a body of evidence establishing that the second respondent had been on the beach and that he had been a member of the group which engaged with the complainant. This evidence included an admission by the second respondent to a police officer that he had been at Henley Beach; Robel (and the first respondent) said that the second respondent was one of the four men who were in the group socialising with the complainant; DNA located on a beer bottle retrieved from a place on the beach where the group had congregated matched that of the second respondent; and, on the morning of 5 February 2003 at the second respondent’s home, the police noted that a wallet containing the second respondent’s credit card and driver’s licence was wet and contained sand. In addition, there was the evidence of the complainant that there were only two aboriginals in the group and that one had described himself as a footballer. The second respondent was at that time engaged in playing league football.
This evidence, if accepted by the jury, was well capable of establishing that the second respondent was one of the two aboriginal men in the group of four.
As to the second respondent being involved in acts of sexual intercourse, the jury had in addition the evidence of the first respondent. The first respondent admitted to engaging in sexual intercourse of various kinds with the complainant but said that it was consensual. Of importance to the prosecution case against the second respondent, he described the second respondent as having been present while the complainant performed an act of fellatio on him. The first respondent said that he asked the complainant if the second respondent could join in, and that she had agreed. He then described the second respondent engaging in actions consistent with at least digital penetration by the second respondent of the complainant’s vagina. He also described the second respondent at a later time lying down on the complainant and, on another occasion, lying next to her. The first respondent said that the second respondent was in the sea with the complainant and him. He did not claim that any other male had been present while he was having sexual intercourse with the complainant. Finally, the first respondent said that he and the second respondent had walked home together.
The two respondents are cousins. They knew each other well. The relationship between the two men and the circumstances as described by the first respondent made it highly unlikely that he could have been mistaken about the identity of the second person who was present when he engaged in acts of sexual intercourse with the complainant. If the jury accepted the complainant’s evidence about the events of sexual intercourse (and its verdicts indicate that it must have) there was a considerable amount of evidence which, quite independently of the DNA evidence, allowed it to conclude beyond reasonable doubt that the second respondent was the second of the two men involved.
The absence of DNA matching that of the second respondent in either of the two vaginal swabs did not negative his participation in the offences. There are a number of possible explanations for DNA matching that of the second respondent not having been found. As already noted, attempts were made to wash away any residual sperm in the complainant’s vagina. Although the second respondent engaged in penile-vaginal sexual intercourse on two further occasions after the washing episode, both occurred while the complainant was still in the sea. Any residual semen from the second respondent may have been washed away by the sea. In contrast, the final act of penile-vaginal intercourse by the first respondent occurred at the shoreline when the complainant was out of the water, so that washing away by the sea of his semen may not have occurred. Another possible explanation is that the second respondent did not ejaculate during the intercourse which occurred after the washing episode. Another explanation is that his semen was present, but in such minute quantities as to not to permit forensic extraction or analysis. The jury could well have concluded that any one or more of these possibilities explained why DNA matching that of the second respondent had not been detected in the vaginal swabs.
Similarly, the presence of unidentified DNA in the low vaginal swab did not necessarily indicate that some unidentified male was the second of the two men. The evidence of Mr Sobieraj indicated that the unidentified DNA could have come from epithelial cells introduced by contamination at the time the swabs were taken, or during the process of forensic analysis. The various ways by which this may have happened were explored in the evidence. It is also possible that the jury considered that the evidence of the complainant about the time of her most recent previous participation in sexual intercourse was mistaken, that it had been more recent than she said, and that some residual semen from that intercourse accounted for the unidentified DNA.
In my opinion, when considered in the context of all the evidence which was before the jury, the DNA evidence does not make the verdicts unreasonable in the sense that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the second respondent.[2]
[2] Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 534 per Gibbs CJ and Mason J.
Directions Regarding the DNA Evidence
The second respondent submitted next that the directions of the trial judge concerning the DNA evidence had been inadequate and, in some respects, wrong. It was said that the effect of the directions was that the case of the second respondent had not been fairly left to the jury and that, accordingly, a miscarriage of justice had occurred.
The obligations of a trial judge in summing up to a jury are well settled. A summing up must be fair and balanced.[3] Both prosecution and defence cases must be put adequately to the jury. The proper approach was outlined by King CJ in R v Wilson, Tchorz and Young:[4]
There is, generally speaking, no obligation on a trial judge to discuss particular pieces of evidence. He is entitled to exercise his judgment and discretion as to how to treat the evidence and the facts. There is an obligation, however, to put the defence adequately to the jury. This involves, not merely telling the jury what the defence is, but, unless the matter is entirely straightforward, relating the important pieces of evidence to the legal defence or defences raised. …[5]
[3] Cleland v The Queen (1982) 151 CLR 1 at 4 per Gibbs CJ.
[4] (1986) 42 SASR 203.
[5] Ibid at 208.
The relevant portion of the summing up of which Mr Coates complained appears in the following passages. I have numbered the paragraphs for ease of reference:
1.In support of his argument that you should have a reasonable doubt that Darren Sumner performed any sexual acts, Mr Gaite emphasised the absence of any DNA evidence linking Darren Sumner to acts of intercourse.
2.In that regard may I remind you of Mr Sobieraj’s finding in relation to the swabs collected from the complainant’s vagina. First, the high vaginal swab. He said that a complete DNA profile was obtained from a sperm fraction isolated from the swab. The DNA profile matched the reference DNA profile of the accused Major Sumner. There was nothing to suggest that there was another contributor from the substance collected on that swab.
3.Mr Sobieraj told you in relation to the low vaginal swab he obtained a sperm fraction which comprised an incomplete mixture. He said that the DNA profiles - and you have the chart of these findings - could have come from Major Sumner and [the complainant]. They could not be excluded as sources of the DNA. He said it was possible that Darren Sumner may have contributed one of the alleles, I think it was allele No.15 in that column labelled ‘VWA’. However, looking at the result as a whole, he could not say that Darren Sumner was a contributor. He considered there was insufficient evidence to support a conclusion that he was in fact a contributor, but conceded that it was possible he may have contributed to allele 15.
4.He said that if one assumes that [the complainant] and Major Sumner were contributors and Darren Sumner was not a contributor, then a third unknown person must have contributed to some of the material on the low vaginal swab. He said that if you assume that Major Sumner, [the complainant] and Darren Sumner were all contributors, then there was a fourth contributor. There had to be a fourth contributor to explain the alleles that could not be explained by the DNA profiles of [the complainant] and both accused.
5.You will remember Ms Spence pointed to the fact that the complainant did not mention that she had sex with some person in the weeks preceding the alleged incident. It is a matter for you, ladies and gentlemen, whether you think that is important. I suggest that what is more important is who she had sex with on the night of these alleged offences.
6.In any event, that is a broad summary of what Mr Sobieraj said about the low vaginal swab. As I have said, Mr Gaite has emphasized that there is simply a lack of forensic evidence linking his client to the acts of intercourse.
7.You will have to consider whether it is possible that Darren Sumner used a condom. The police did find a condom in that general area. On the other hand, you will remember the points made by both Mr Gaite and Ms Spence that the complainant never suggested that either man put on a condom and that she recalled that the footballer said to the chubbier Aboriginal not to worry about not having a condom.
8.You will have to take into account the possibility of contamination in the collection of samples at Yarrow Place and in the testing procedures in the Forensic Science Centre. But you might think that it is fair to say, as Mr Gaite put to you, that Mr Sobieraj seems to regard that as a fairly unlikely scenario.
9.There is, of course, another factor to consider. Is it possible that Darren Sumner did not ejaculate at all? Is that a reasonable possibility? Is that a reasonable possibility bearing in mind the number of acts of intercourse that the complainant has alleged against him? These are all things for you to weigh up.
It was said that the effect of the paragraph numbered 3 was to leave the jury with the impression that the DNA found in the low vaginal swab could have matched that of the second respondent, whereas the evidence of Mr Sobieraj had excluded the second respondent as a contributor (on the assumption that only two persons had had sexual intercourse with the complainant). In my opinion, there is nothing in this complaint. As already noted, Mr Sobieraj had said expressly that the second respondent could not be excluded as the contributor of the alleles at two of the hypervariable sites in the DNA extracted from the low vaginal swab. The effect of the direction was to remind the jury of that evidence but at the same time to remind it of Mr Sobieraj’s opinion that there was insufficient information to conclude that DNA matching that of the second respondent had been detected.
It is true that in another passage of evidence, Mr Sobieraj had said that the second respondent could be excluded as a contributor of the DNA. However, that was not an unqualified proposition. It depended upon the two assumptions identified by Mr Sobieraj in the answer which immediately preceded that evidence, ie, that only two men had had sexual intercourse with the complainant, and that only those two males accounted for the DNA derived from the low vaginal swab. The judge did not direct the jury concerning those two assumptions in express terms, but he did remind the jury about a number of features of the evidence, and of defence counsels’ submissions which went to the issue of whether those assumptions were established. These aspects of the summing up are contained in the paragraphs I have numbered 4, 5, 7, 8 and 9. The jury was adequately directed in this respect.
A related submission was that the judge had failed altogether to direct the jury about the implications arising from the evidence that not all of the DNA found in the low vaginal swab could have come from the complainant or from either of the two respondents. The jury should have been directed, it was submitted, that if it accepted the evidence of Mr Sobieraj concerning the DNA, it then had to consider the possibility that that DNA came from some other person. The jury had to take account of that possibility when assessing the reliability of the complainant’s evidence that only two men had had intercourse with her, and her evidence that one of the two men was the footballer.
Account must be taken of the context in which the directions were given. The judge had earlier reminded the jury of the submission of the second respondent that the evidence did not establish that he had engaged in the conduct attributed to him by the complainant. He described this as the “essential feature” of the closing address of the second respondent’s counsel. The judge reminded the jury that there were two principal aspects to the defence submission: first, that the evidence of Major Sumner did not go so far as to confirm that there had been any act of penetration of the complainant by the second respondent and, secondly, that the DNA evidence not only did not implicate the second respondent, it indicated the possible involvement of some third person. In my opinion, in that context the jury could not reasonably have been under any misapprehension as to the significance to the defence of the second respondent of the presence of DNA from an unidentified third person.
Next it was said that the judge had reminded the jury of two explanations for DNA matching that of the second respondent not having been found in the vaginal swabs, ie, because a condom had been used, or because the second respondent had not ejaculated. The reference to a condom was unhelpful, it was said, because of evidence of the complainant that a condom had not been used at all. It was submitted that in any event the direction lacked balance as it involved the jury being reminded of hypotheses which were consistent with the prosecution case but not being reminded of the defence case, ie, that the complainant was mistaken in her evidence that the second respondent was one of the persons who had sexual intercourse with her.

In my opinion, this complaint focuses too much on particular passages in the summing up without regard to the overall context. It must have been obvious to the jury that its verdicts turned very much on its assessment of the reliability of the complainant’s evidence. It was told as much by the prosecutor in both her opening and closing submissions. Each of the defence closing submissions referred to the reliability of the complainant’s evidence. The summing up of the judge mentioned a number of matters to be considered by the jury in its assessment of her evidence, including her possible intoxication and some prior inconsistent statements which she had made. The judge reminded the jury of the submission made by the second respondent’s counsel that the critical question to be considered was whether the prosecution had proved beyond reasonable doubt that the second respondent had participated in the sexual acts as the complainant had alleged. In that context, it was not necessary for the judge, at the time of discussing particular aspects of the evidence and submissions, such as the use of condoms or possible absence of ejaculation, to remind the jury of the possibility that the complainant was mistaken.
In my opinion, none of the second respondent’s complaints about the DNA evidence or about the directions in the summing up concerning the DNA evidence has been made out. I would refuse permission to appeal on these grounds.
The Direction Concerning Recent Complaint
The prosecution led evidence that the complainant had told the taxi driver who drove her to her house in the early hours of 5 February 2004 that she had been raped. Evidence was also led of the complainant’s complaint to the police. In the course of directing the jury about the use which could be made of this evidence, the judge said:
The fact that she is said to have made a complaint to the taxi driver and a complaint to the police in the early hours of that morning comes before you because it is considered that the making of a prompt complaint is relevant in assessing the truth of the alleged victim’s evidence in court. (Emphasis added)
Insofar as this direction may have suggested that the complaints could be used to establish the truth of what was alleged by the complainant, it was erroneous. The evidence of the complainant could be used only to demonstrate the consistency of the complainant’s behaviour with her account of rape and the consistency of her account of what had occurred.[6] However, when the directions are read in full context it is clear that the jury was properly instructed about the use of this evidence. In the sentences immediately following the impugned passage, the judge said:
[The complaint evidence] may indicate to you that her behaviour at the time, in making the complaint, was consistent with the occurrence of the events of which she has given evidence in court. It may assist you also in assessing her evidence by considering the consistency or inconsistency of what she then said with what she has said in evidence.
The jury was told no less than six times that the evidence of complaints could be used only in assessing the consistency of the complainant’s evidence. It was directed explicitly that the complaints were not themselves evidence of what had occurred.
[6] R v Wilson, Tchorz and Young (1986) 42 SASR 203 at 208 per King CJ.
I would refuse permission to appeal on this ground.
The Directions Concerning Aiding and Abetting
The second respondent complained of one passage in the judge’s directions concerning aiding and abetting. The relevant portions of the summing up on this topic are as follows:
I turn to the next mode of complicity, aiding and abetting. This principle of liability applies where the prosecution is not able to prove the existence of a joint enterprise to commit the specific crime that was committed. An aider and abettor is a person who is present at the time when the crime is committed by another person and who intentionally aids, or gives assistance, or gives encouragement to that other person in the commission of the crime. The law regards such an aider and abettor just as guilty of the crime as the person who actually committed it, that is, the principal offender.
Once again, the mere presence of the accused at the scene of a crime is not sufficient to make him an aider and abettor. It must be shown that there was intentional assistance or encouragement given to the principal offender. Any act of assistance, any form of encouragement to the principal offender, whether by words or acts, is sufficient. Such encouragement is established if the prosecution satisfies you beyond reasonable doubt that the accused was both present and ready to give aid to the principal offender as required. Such readiness to give aid as required amounts to an encouragement to that other person to commit the crime and makes the accused an aider and abettor.
As I said, mere presence at the scene of a crime, although it is not accidental, does not, of itself, necessarily amount to encouragement. But the fact that a person was voluntarily and purposely present, witnessing the commission of the crime, and offered no opposition, though he might reasonably be expected to prevent it and had the power to do so, or at least express his dissent, might afford evidence upon which a jury would be justified in finding that he intentionally encouraged the principal offender and so aided and abetted. That is a question of fact for the jury to determine.
Of course before a person can be convicted on grounds of aiding and abetting, the jury must first of all be satisfied that the crime in question was in fact committed. If the prosecution proves that the crime was committed by the principal offender, then the jury must consider whether at the time that the crime was being committed, the accused was both present and intentionally giving aid, or assistance, or encouragement in its commission.
Before a jury can find that an accused person intentionally gave either aid or encouragement in the commission of the crime, the jury must be satisfied beyond reasonable doubt that the accused knew all of the essential facts or circumstances that have to be proved by the prosecution to show that the crime was committed by the principal offender.
In short, to establish an accused person aided and abetted the commission of an offence, the prosecution must prove beyond reasonable doubt four things: one, the commission of the crime by the principal offender. Two, the presence of the accused at the time the crime was committed. By ‘presence’ I do not mean standing next to him but in a position where he could, if need be, provide assistance if called upon. Three, that the accused knew all the essential facts or circumstances necessary to show the crime was committed by the principal offender and that with that knowledge he intentionally assisted or encouraged the principal offender to commit the crime.
Mr Coates submitted that the second sentence in the third paragraph of these directions was wrong in law. He submitted that the directions may have left the jury with the impression that the mere presence of the second respondent on the beach was sufficient for accessorial liability to be established. It was also said that the direction failed to emphasise that the second respondent had to have knowledge of the facts and circumstances constituting the principal offence.
In my opinion, these submissions should be rejected. It is evident from the passages quoted that the jury was told three times that the mere presence of the second respondent on the beach at relevant times was insufficient for him to be guilty as an aider and abettor. The jury was told four times that it had to be satisfied that the second respondent had provided intentional encouragement or assistance. It was told expressly that it had to be satisfied that the second respondent knew all of the essential facts and circumstances to be proved by the prosecution to show the commission of the crime by the principal offender. These directions were reinforced by an example given by the judge immediately following the passages just quoted.
It is to be observed that the impugned direction concerns matters of evidence upon which the jury could be satisfied that one respondent had intentionally encouraged the other and had thereby aided and abetted him. The jury was being directed about conduct which could be regarded as evidence that one respondent was linked in purpose with the respondent actually committing the crime, and was by his conduct encouraging or assisting in the commission of the crime.[7] The jury could not reasonably have understood the impugned passages as indicating that a passive presence on the beach would be sufficient for guilt to be established.
[7] Cf Giorgianni v The Queen (1985) 156 CLR 473 at 493 per Mason J.
I note, in addition, that the direction of which the second respondent complains replicates almost exactly a passage in the judgment of Hawkins J in R v Coney.[8] The statement of principle by Hawkins J has been approved and applied in a number of later decisions, without there having been any suggestion that it misstates the law. See for example R v Phan;[9] R v Lam;[10] Randall v The Queen.[11] The passage is also incorporated in the relevant statement of principle in Archbold.[12]
[8] (1882) 8 QBD 534 at 558.
[9] [2001] NSWCCA 29 at [70]; (2001) 53 NSWLR 480 at 485-6.
[10] [2005] VSC 294; (2005) 159 A Crim R 448 at 464.
[11] [2004] TASSC 42; (2004) 146 A Crim R 197 at 213-14.
[12] Archbold: Criminal Pleading Evidence and Practice 2007 para 18-18, 1792.
In all these circumstances, it cannot reasonably be said that the jury was misdirected on this topic.
Conclusion on Appeal Against Conviction
For the reasons given above, I would refuse permission to appeal against conviction on all grounds.
The Appeal Against Sentence
As previously noted, the DPP seeks permission to appeal against the sentences of imprisonment of five years and six months with non-parole periods of two years and three months which were imposed on each of the respondents for the rapes. The DPP contends that each of the sentences is manifestly inadequate and disproportionate to the seriousness of the offences involved.
The Director did not suggest that the judge had made any error of fact, or overlooked any relevant consideration, or that he had taken into account any irrelevant consideration. It was not suggested that the judge had made an identifiable error of sentencing principle. The submission was simply that the sentences were so low as to warrant the intervention of this Court on a Crown appeal.
The verdicts of the jury and the judge’s sentencing remarks indicate that the judge was satisfied that the first respondent required the complainant to perform three acts of fellatio on him, penetrated her anus digitally on one occasion, and had penile-vaginal sexual intercourse on one occasion. The verdicts and the sentencing remarks also indicate that the judge was satisfied that the second respondent digitally penetrated the complainant’s vagina twice and engaged in four acts of penile–vaginal sexual intercourse. The respondents were not, of course, to be sentenced for the uncharged conduct. Nevertheless, the seriousness of their offending was to be assessed in the light of all their conduct involving the complainant.
As is to be expected, the rapes have had a significant adverse affect on the complainant. Her Victim Impact Statement gives an indication of the enduring distress and anxiety which she experiences. The complainant’s study plans in 2003 were frustrated and her employment history since has been unsettled. She describes difficulties now in forming appropriate relationships with any young male. The complainant has, from time to time, required a number of anti-anxiety and anti-depressant medications.
Both respondents were aged 19 at the time of the offences, and 23 at the time of sentencing. Although identified in photographs by the complainant very shortly after 5 February 2003, they were not charged with the rapes until 24 August 2005. The lapse of approximately two and a half years was not attributable to any conduct on their part.
The judge noted that both respondents had been brought up in loving and supportive families. The family of the first respondent was said to be a well respected family within the aboriginal community. The judge accepted that in the period since the offences the first respondent had formed a stable relationship with his partner, and that they were the parents of a two year old daughter. It was obvious that a period of imprisonment would substantially interfere with the first respondent’s ability to care for his partner and daughter at important stages in their lives.
A number of references attesting to the character of both respondents were placed before the judge. These indicated that both were generally persons of good character, with strong community and cultural values, and with a commitment to helping those less fortunate than themselves.
At the same time, the judge noted that each of the respondents had relevant prior convictions. The first respondent had been convicted on 15 February 2002 (one year before the rapes) of common assault and larceny and had received a suspended sentence of imprisonment for 12 months with a non-parole period of six months. The suspended sentence bond had nine days left to run as at 5 February 2003. The second respondent had convictions in the Youth Court in 2001 for robbery and for carrying an offensive weapon, as well as several minor offences since that time.
The judge accepted that each of the respondents had, since 2003, led responsible and productive lives. In this respect, it is evident that the judge accepted that each had already demonstrated some rehabilitation with indications of good prospects of further rehabilitation in the future. It is also evident that the judge accepted that each of the respondents had the potential to live influential and productive lives. The judge was concerned not to impose sentences which would be destructive of those prospects.
The judge also accepted two other matters in the respondents’ favour. First, that they had been intoxicated at the time of the commission of the offences, and that their intoxication may, to an extent, have influenced their behaviour. Secondly, that the understanding underpinning their joint enterprise had been formed only very shortly before their cornering of the complainant and imposing themselves upon her. Finally, the judge made a small allowance in the fixation of the first respondent’s sentence on account of the fact that he was, at the time of sentence, being held in protective custody and that that protective custody was likely to continue for some time into the future.
It was not suggested by any party at first instance or on appeal that there should be any differentiation between the respondents in the sentences imposed for the rapes. In the case of the first respondent, account did have to be taken of the previous suspended sentence and the breach of his bond which the present offending entailed.
The submissions of the respondents accepted that the sentences of the judge were both lenient and merciful. It was submitted, however, that the sentences were not so low as to warrant intervention on a Crown appeal.
Interference with a Sentence on a Crown Appeal
The principles which guide an appellate court on a Crown appeal are well established. The court should grant permission only in the “rare and exceptional case” in which it is necessary to establish some matter of principle or to correct the kind of manifest inadequacy which constitutes an error in point of principle.[13] Counsel for the respondents relied upon the following passage in the judgment of the Chief Justice in R v Nemer:[14]
The result of the principles established by the High Court is that to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. … Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.[15] (Citations omitted)
[13] Everett v The Queen (1994) 181 CLR 295 at 299-300 per Brennan, Deane, Dawson and Gaudron JJ. See also R v Wilton (1981) 28 SASR 362 at 363-4 per King CJ; R v Elliott [2001] SASC 101 at [22]-[23], [35]-[36]; (2001) 121 A Crim R 254 at 257 per Doyle CJ and at 259 per Gray J.
[14] [2003] SASC 375; (2003) 87 SASR 168.
[15] Ibid at [24], 172.
Even if the Court does decide that the case is an appropriate one for a grant of permission to appeal, it may decline to allow the appeal and simply indicate that the sentence is too low.[16]
[16] R v Elliott [2001] SASC 101 at [28]; (2001) 121 A Crim R 254 at 258 per Doyle CJ.
Inadequacy of the Sentences
The Court was referred during the course of submissions to a number of cases in which sentences for multiple offences of rape on the one victim have been considered.[17] I do not consider that either a review of those authorities or a comparison of the sentences imposed would be useful. The circumstances considered in the cases vary widely as do the aggravating features which were present. This Court has spoken many times of the limited use which can be made of the sentences imposed in other cases.[18] The cases do, however, confirm in a general way that the present sentences are very low.
[17] R v Margetson (1984) 112 LSJS 263; Heuston v R (1993) 171 LSJS 479; R v Ball, Bunce & Callis (1993) 169 LSJS 293; DPP v Cowey (1995) 182 LSJS 345; R v Draper (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Cox, Olsson and Bleby JJ, 23 April 1997, Judgment No S6135); R v Colbert [1998] SASC 6801; R v Daly [1999] SASC 428; R v Elliott [2001] SASC 101; (2001) 121 A Crim R 254; R v Armstrong [2002] SASC 174.
[18] See for example, R v Hitchens (1995) 184 LSJS 333 at 337.
The maximum penalty for the offence of rape is imprisonment for life. The first respondent was therefore to be sentenced for five offences each punishable by a maximum sentence of life imprisonment, and the second respondent for four.
There is no tariff or sentencing standard for the offence of rape. The circumstances in which rapes are committed and of the offenders can vary significantly and this Court has said that the fixing of a range of sentences is inappropriate.[19]
[19] R v Hitchens at 336.

It may be acknowledged that this case does not involve some of the aggravating features identified in the authorities to which the Court was referred. The rapes did not occur in the security of the complainant’s own home;[20] although brutal, they did not involve the forms of extreme physical violence present in some cases;[21] they did not involve the use of a weapon;[22] and the respondents do not have the poor record of some offenders.[23]
[20] Heuston at 479-80 per King CJ; Cowey at 346-7; Elliott at [90]; 269-70 per Gray J.
[21] Elliott, Daly.
[22] Colbert at [10] per Nyland J; Daly at [10], [19] per Doyle CJ.
[23] Margettson at 269-73 per White J; Elliot at [68]–[73]; 264-5 per Gray J; Daly at [15] per Doyle CJ.
However, even when account is taken of these factors, of the respondents’ good rehabilitation prospects, and of the advantage which the judge had in observing the complainant and the respondents during the course of the trial and during the sentencing process, I consider that this is one of the rare and exceptional cases in which a Crown appeal against sentence should be allowed. The sentences are quite disproportionate to the seriousness of the respondents’ conduct. Any offence of rape is serious but these offences were particularly serious. Advantage was taken by the respondents, acting in unison, of the complainant’s vulnerable position. The offences were, in effect, gang rapes which were achieved by keeping the complainant in a state of fear. They were committed in the course of other conduct which, although uncharged, was of a similar kind. The offences took place over a relatively long period. The respondents had the opportunity at various stages to reflect upon their conduct and to desist from the further rapes, but did not do so. The offences involved particular forms of degradation of the complainant, including requiring the complainant to engage in fellatio on one respondent while being raped vaginally by the other, spitting on her vagina, compelling her to lick the anus of the first respondent, the making of humiliating remarks, and compelling the complainant to claim that she was enjoying the very degradation which was being inflicted upon her. The respondents did not show any regard for the complainant’s dignity or well being at any stage after the commencement of the offences. On the contrary, both their words and conduct demeaned her continually. It is also to be remembered that general deterrence is a particularly important consideration in sentences for the offence of rape.[24] In the case of the first respondent there is the additional consideration that the offences occurred at a time when he was subject to a bond to be of good behaviour.
[24] R v Barraclough (1988) 144 LSJS 183.
The sentence, even though a single sentence, had to reflect the fact that the respondents were being sentenced for several offences of a very serious kind. In my opinion the sentences imposed do not adequately reflect the fact that the first respondent committed five offences of rape, and the second respondent four, nor the circumstances in which the offences were committed. As I have said, proper account of the multiple offences had to be taken, even though they all formed part of the one course of conduct.
Section 353(4) of the Criminal Law Consolidation Act 1935 (SA) requires this Court, if it thinks that a different sentence should have been passed, to quash the sentence which was imposed and to substitute such other sentence as the Court thinks ought to have been imposed. However, when the Court allows a Crown appeal against sentence, it is appropriate for the substituted sentence to be towards the lower end of the range of available sentences.[25]
[25] Dinsdale v The Queen (2000) 202 CLR 321 at 340-1 per Kirby J; R v Ivic [2006] SASC 8 at [56] per Anderson J; R v Robinson [2004] SASC 189 at [60] per Perry J.
In my opinion, the minimum single sentence which could have been imposed, after taking account of all the matters favourable to the respondents, was a sentence of imprisonment of eight years. But for the restraint that conventionally governs the Court in substituting a sentence on a Crown appeal and the youth of the respondents at the time of the offences, that sentence could well have been higher. In determining upon a sentence of eight years, I have also taken account of the steps towards rehabilitation which each of the respondents took in the period of two and half years before they were charged, and subsequently.
I would grant the Director permission to appeal against each of the sentences so as to substitute a sentence for the rapes of imprisonment of eight years. In the case of the first respondent, there must be added the sentence of one month imposed by the judge in respect of the sentence which was previously suspended.
The non-parole periods imposed by the judge were lower than usual. It is evident that this was because of the favourable view which the judge took of the respondents’ potential for successful rehabilitation and of their potential to live useful and productive lives in the future. I would take a similar view. I would impose non-parole periods of four years.
Conclusion
In summary, I would refuse the second respondent permission to appeal against his convictions. I would grant the Director permission to appeal against sentence. The appeals against the sentences imposed on each of the respondents should be allowed and the sentences imposed for the offences of rape in each case should be quashed. A sentence of eight years should be imposed on the first respondent. The sentence of imprisonment for one month in respect of the previously suspended sentence should be served cumulatively upon that sentence. A sentence of eight years should be imposed upon the second respondent. I would fix a non-parole period in each case of four years. Both the sentences and the non-parole periods should be taken to have commenced on 22 February 2007.