R v Sykes - [2017] SASCFC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SYKES
[2017] SASCFC 59
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Parker)
31 May 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
The appellant pleaded guilty to aggravated serious criminal trespass in a place of residence, aggravated kidnapping, aggravated threaten life, aggravated indecent assault, aggravated assault causing harm, two counts of aggravated threaten harm, and threaten harm. Appellant was sentenced to 15 years imprisonment reduced by 30% in recognition of guilty plea, resulting in a head sentence of ten years and six months. The appellant also pleaded guilty to breach of the intervention order. For the breach of the intervention order appellant was sentenced to one year imprisonment reduced by 40% in recognition of guilty plea, resulting in a head sentence of seven months imprisonment. The two sentences were made cumulative so that the appellant was sentenced to a total of 11 years and one month imprisonment with a six year non-parole period.
Appellant submitted that the head sentence was manifestly excessive, the non-parole period was manifestly excessive, that the sentencing judge had inadequate regard to matters personal to the appellant and placed too much weight on the need for general and personal deterrence.
Held, per Parker J (Vanstone J and Blue J agreeing), dismissing the appeal:
1. It follows from the decision of this Court in R v Lutze (2014) 121 SASR 144 that adopted the comments of the Chief Justice in Police v Chilton (2014) 120 SASR 32 that the complaints of inadequate weight and excessive weight do not point to an appellable error and cannot succeed.
2. The sentencing judge took into account all relevant matters personal to the appellant including the fact he had not previously been convicted, his age and work history and his statement of remorse. These subjective considerations were weighted by the judge against the objective circumstances of offending. There was no process error.
3. The head sentence was within the range available to the judge. The sentence was not manifestly excessive.
4. The non-parole period sufficiently reflected the appellant’s lack of a criminal record and his good work history. The non-parole period was not manifestly excessive.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Police v Chilton (2014) 120 SASR 32; R v Jackson [2007] SASC 332; R v Lutze (2014) 121 SASR 144; R v Siviour [2016] SASCFC 51, discussed.

R v SYKES
[2017] SASCFC 59
Court of Criminal Appeal: Vanstone, Blue and Parker JJ

VANSTONE J: I would dismiss the appeal for the reasons written by Parker J.
BLUE J: I agree with Parker J.
PARKER J:          This is an appeal against sentence. The appellant, Jason Kevin Sykes, had pleaded guilty to the following offences:
1Aggravated serious criminal trespass in a place of residence. The maximum penalty is life imprisonment.
2         Aggravated kidnapping. The maximum penalty is 25 years imprisonment.
3         Aggravated threaten life. The maximum penalty is 12 years imprisonment.
4Aggravated indecent assault. The maximum penalty is 10 years imprisonment.
5Aggravated assault causing harm. The maximum penalty is five years imprisonment.
6 & 7Two counts of aggravated threaten harm. The maximum penalty is seven years imprisonment on each count.
8Threaten harm. The maximum penalty is five years imprisonment.
9Breach of an intervention order. The maximum penalty is two years imprisonment.
The judge applied s 18A of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) to impose a sentence of 10 years and six months imprisonment after allowing a discount of 30% on account of the respondent’s guilty plea in the Magistrates Court. Her Honour indicated that but for that early guilty plea she would have imposed a sentence of 15 years imprisonment. She imposed a sentence of seven months imprisonment in respect of the breach of the intervention order after allowing a discount of 40% as the appellant had pleaded guilty to this offence at the first opportunity. Her Honour indicated that but for the early guilty plea she would have imposed a sentence of imprisonment for one year. The two sentences were made cumulative so that the appellant was sentenced to a total period of imprisonment of 11 years and one month. The non-parole period was fixed at six years.
Grounds of appeal
The appellant has been granted permission to appeal on the following grounds:
1The head sentence was manifestly excessive.
2The non-parole was manifestly excessive.
3The learned sentencing judge had inadequate regard to matters personal to the appellant.
4The learned sentencing judge placed too much weight on the need for general and personal deterrence.
Circumstances of the offences
The appellant and the victim met through an online dating service in March 2015. In May 2015 the appellant moved to Adelaide from Whyalla. At that time he moved into the victim’s home. He lived with her until August 2015 when the victim asked him to leave. That request followed the appellant having engaged in self-harm, making various threats to harm himself and cornering the victim in a bedroom. He eventually ceased the threats when the victim agreed to speak to him about their relationship.
Following the incident in August 2015 the appellant returned to Whyalla to live with his mother. He then returned to live in Adelaide sometime between October and December 2015. The appellant told the victim that his mother had passed away. That was a lie. He also told the victim that he could not live at his mother’s house and had nowhere else to live. The victim then allowed him to live with her and the relationship resumed.
In January 2016 the victim received a telephone call from the appellant’s mother. At this time she became aware that the appellant had told her many lies. Nevertheless, the victim decided to help the appellant get back on his feet. In early March 2016 the appellant became convinced that the victim was involved in a relationship with a male work colleague. That led to an argument between them. She locked herself in her bedroom while the appellant yelled at her through the door. The victim then asked the appellant to move out of her house. He did so on 17 March 2016 with the assistance of the victim. She also helped him to obtain basic furniture and appliances. Subsequently, the appellant contacted the victim about some clothes that he had left behind at her house. She sent a message saying that he could collect these items on Sunday 20 March 2016.
About 12.40am on Sunday 20 March 2016 the victim fell asleep while watching television at home. She awoke to the sound of a voice. She saw a man standing over her dressed in black with a black hoodie pulled up and a black plastic mask on his face. The victim realised that this person was the appellant. He said “this is not Jason” (his own name) while pushing her head to the side and holding it down on the couch upon which she was lying.
The appellant said words to the effect of “Do exactly as I say. If you don’t or make a sound, I’ll slit your throat.” He then went on to say “you are going to die tonight”.
The appellant directed the victim to roll on to her stomach. He then bound her hands behind her back and bound her ankles. He used a t-shirt to cover her face thereby blindfolding her. The appellant then rolled her on to her back and directed her to stretch out her legs. He then pulled her pyjama pants and underwear down to her ankles and pulled her t-shirt above her chest. She was not wearing a bra.
As the appellant was pulling the victim’s clothes away he said “I want to see what all the fuss is about”. He was also saying things such as “I don’t know what Jason saw in you”. He then began to touch her all over her body quite firmly. That was mainly on the breasts and also on the front of her vagina, although there was no penetration. While touching the victim the appellant threatened to kill her. He also said to her that he was going to make her feel pain like she had never felt before. He then removed her belly button piercing and pulled at her nipples while threatening to cut them off. He also threatened to use gardening shears to cut off her breasts. He then said “I am going to find every object I can to shove it in your c***”.
The victim was terrified. She believed the threats made by the appellant. He asked her if she had ever had her nose broken before. When she answered “no” he said “we’ll have to change that”.
The sentencing judge described the appellant’s conduct as torture in the sense that he was pausing for periods and saying nothing while leaving the victim in dread. The appellant asked the victim whether she thought that he was a bad person. She said that she did not know what makes a bad person. He said “a bad person is a person who does bad things and doesn’t feel any regrets. I sure as hell don’t feel any regrets for what I’m doing”.
The appellant then went on to tell the victim that he was going to drive her in her car to a secluded place and make her suffer. When told that the car needed refuelling he discussed how he was going to get petrol. He said that he would not put her in the boot of the car but would leave her sitting in the front seat while he refuelled.
The appellant demanded the address of the victim’s male work colleague. He accused her of lying and said that he was going to cut off her fingers one by one until she answered. He also said that it was going to be his goal in life to find and kill the work colleague.
During this time the victim still had her hands and feet bound and was blindfolded. The appellant told her that he could cut the tape from her hands but if she tried to do anything he would kill her. While cutting the tape from her wrists he cut her on the left forearm. He said that he had not meant to cut her and tried to stem the bleeding. The appellant continued to make rambling comments while referring to himself in the third person.
Eventually, the appellant removed the blindfold from the victim and also the tape from her ankles. She then saw that he had removed the black mask. She described the appellant as looking very scary and snarling with an aggressive look.
The appellant allowed the victim to go to the bathroom and then escorted her back to the lounge room. He made her pull up her t-shirt again so as to expose her breasts. He held scissors out and traced the tips of the blade around her nipples while making the comment “I’m going to enjoy getting rid of these”. He then told the victim to pick suitable clothing for a long drive. This occurred at about 4.10am.
At that time the appellant said he was going to wait until it became lighter before taking her for a drive. The victim was feeling sick and needed to go to the toilet. On the first few occasions he accompanied her and after that let her go alone. She lay down and closed her eyes and then opened them to find that the appellant was searching through her telephone. The appellant was being quiet at times and then occasionally made remarks such as “I don’t know what to do, what do you think I should do with you?”. By then the victim was resigned to the fact that she was not going to survive as she thought the appellant was going to kill her. The appellant then became more agitated and told the victim that it was “back on” and that she had sealed her own fate and he could not let her live. She also thought that the appellant was going to harm her family. However, the appellant said that he would not hurt any of her family except a cousin whom he did not like.
Ultimately, the appellant asked the victim what she wanted. She said that she wanted him to leave her alone. The appellant then commenced to tidy the house and eventually left of his own accord. Sometime after he had done so, the victim noticed a spare set of keys on a coffee table that had previously been in her shed. The appellant had not had his own set of keys when he lived with the victim.
It is not clear for how long the offending continued. There was a suggestion by the prosecution that it had occurred over 12 hours. However, that does not appear to be correct. All that is known is that the offending commenced after 12:45am and continued for some time after 4:10am. Clearly, the offending occurred for at least several hours.
After the appellant left, the victim went to her parents’ home, arriving at 12.45 pm. They took her to the police. The appellant was arrested by the police at his home that day. He was clearly intoxicated but co-operated with the police. He admitted to the police that he had bought the mask the day before with the intention of using it when committing the offences.
On 20 March 2016 the appellant was served with a police interim intervention order. Condition 4 of that order stated that the appellant must not “contact or communicate with the protected person either directly, or indirectly in any way (including phone, letter, cards, … etc)”. On 3 May 2016 the victim received a text message from a work colleague advising that a letter addressed to her and sent by the appellant had been received at her workplace. The victim told her colleague to give the letter to her supervisor. The victim then contacted the supervisor and asked her to open the letter and read it to her over the telephone.
The victim has stated that the letter was couched as an apology but this meant absolutely nothing to her and made her angry. The letter had been addressed to her using her nickname and repeated matters that the appellant had said to her before. This conduct was the subject of count 9.
Personal circumstances
The appellant was aged 38 years at the time of sentencing. He had no prior convictions. He attended school until year nine. He then worked in a supermarket and then in general labouring until he joined a mining company where he worked for nine years until taking a severance package in 2015 so as to move to Adelaide to live with the victim. He then worked as a labourer and as a delivery driver for two weeks before being dismissed after his arrest. The appellant married in 2007. That relationship ended in 2014.
Two reports were provided to the sentencing judge. The first report was provided by Dr Ian Jennings, a psychiatrist, dated 12 May 2016. Dr Jennings assessed the intelligence of the appellant as being in the average range (without a formal test). Dr Jennings reported that the appellant had a history consistent with an adjustment disorder with mixed disturbance of emotions and conduct following the break-up in his relationship with the victim. His behaviour towards the victim would have been a result of the disinhibition caused by his alcohol intake which had been significant on the afternoon of the offence when he consumed 1.5 litres of vodka. He was aware of the nature of his conduct at that time. The fact that he chose to wear a mask suggests that he was aware that his behaviour was wrong. Dr Jennings reported that the appellant did not have a mental incompetence defence available to him.
Another report was provided by Dr Jack White, a clinical psychologist. Based on tests, Dr White reported that the appellant was in the low average range of intelligence. The appellant’s psychological profile indicated that he was very emotionally volatile and unstable and coped poorly with stressors, especially relationship breakdowns. His perception was at times distorted and under the influence of alcohol his judgment was likely to be very poor. He had problems in dealing with his anger and in situations of conflict he was likely to become physically aggressive. Dr White suggested that it was likely that his actions towards the victim had been curtailed by her remarkable courage and awareness.
Dr White also reported that the appellant’s symptoms were consistent with a potential mental illness (schizophrenia) which had not to date been formally diagnosed although he was currently prescribed antipsychotic medication. It was recommended by Dr White that the appellant should be referred to a psychiatrist. However, no further report was sought from a psychiatrist. Dr White also recommended that the appellant be referred to Drug and Alcohol Services SA for assessment and treatment of his alcohol and cannabis abuse issues although I note that he told Dr White that he had ceased using cannabis in 2006. Dr White also recommended that the appellant be referred to an appropriate anger management program.
The appellant sent a letter to the court in which he expressed disgust for his actions and the trauma, pain and suffering he had caused to the victim and her family. He also stated that he had a genuine intention to deal with his personal problems. The appellant’s mother, brother and a friend also provided letters to the court that attested to his kindness and generosity and expressed surprise that he had committed the offences.
The victim prepared a 10 page victim impact statement. Due to its length the judge read the statement prior to the sentencing submissions rather than it being read in court.
The victim referred to the great anxiety and stress that she had suffered after the offences. In particular, she explained the difficulties that she had in returning to work. That difficulty was compounded when the appellant’s letter was received at her workplace in breach of the intervention order. The stress that caused made it necessary for her to change her workplace. She also lost significant promotional opportunities and found it necessary to work reduced hours in a far less responsible position. She still suffered from low self-esteem and a lack of confidence and found it hard to relate to people. She also suffered nightmares and had great difficulty sleeping. It had been necessary for her to receive treatment from a psychologist, her doctor and a return to work consultant and counsellor.
Sentencing remarks
The judge described the offences as horrendous. Her Honour set out the circumstances in considerable detail and also referred to the reports provided by Dr White and Dr Jennings. Her Honour noted that each of the offences committed by the appellant were serious. Every person has a right to feel safe in their house and the appellant had violated the security and safety of the victim and also violated her personally. He had terrorised her for what must have been hours in her own home. In her view his behaviour appeared to have been deliberately designed to inflict the maximum amount of terror. Her Honour also referred to the observation by Dr White that it was likely that the response of the victim had resulted in him not inflicting more harm or carrying out his threats.
The judge also noted that she had considered the totality principle. Her Honour did not consider the sentence or non-parole period to be excessive in the circumstances. The sentences were backdated to 20 March 2016 when the appellant was first taken into custody. The judge also made an intervention order in favour of the victim.
After imposing the sentences referred to above, in setting the non-parole period the judge noted that these were the first offences by the appellant, he had pleaded guilty at a very early stage and had expressed remorse. Her Honour observed that those considerations must be balanced against the serious nature of his offending, the concerns in relation to his rehabilitation and community safety. I infer that the concern about rehabilitation was based on her Honour’s observation that the letter that the appellant had sent to the court demonstrated a naïve attitude towards his offending and a lack of appreciation for the serious consequences that his behaviour had upon the victim and her family.

The judge also referred to the need for general and personal deterrence to be reflected in the non-parole period and the need for the non-parole period to adequately punish him for the offences. On that basis her Honour set the non-parole period at six years.
The judge rejected a submission that the sentence should be suspended on account of the appellant’s good work record, his lack of prior convictions and his background. Her Honour found that in the circumstances of these very serious offences there was not good reason to suspend the term of imprisonment. The judge also rejected a submission that the appellant should be released on home detention. The judge did not consider the appellant to be a suitable person to be released on home detention at that time. In reaching that conclusion her Honour took into account the serious nature of the offending, the concerns expressed in relation to the appellant’s rehabilitation and the safety of the community.
The appellant’s submissions
The appellant concedes that his offending was very serious but also observes that he was a first offender. While conceding that comparisons between sentences imposed for like matters have limited value, counsel referred to the sentences in two other matters that, in his submission, suggested that the sentence imposed on the appellant exceeded the requirements of justice.
The first comparable case relied upon by the appellant was R v Siviour.[1] The circumstances of the offences in Siviour were that the appellant had arrived at the home of a male and female victim in Cowell at about 6.00am on a Sunday morning. He entered their home while armed with an imitation firearm and a taser. He was apparently seeking to recover an alleged drug debt. Once inside the victims’ home, the appellant tasered the male victim and threatened to taser the female victim. He tied the male victim’s ankles and wrists and then took various items of property from the home which he loaded into a car. He placed the male victim in the boot of the car and the female victim in a passenger seat. He then drove the vehicle from Cowell to Adelaide. That journey took at least five hours. During a stop near Whyalla the appellant tied the female victim’s ankles together. During a later stop after passing through Port Augusta, apparently in response to complaints from the male victim in the car boot, the appellant tasered him again.
[1] [2016] SASCFC 51.
On arrival at a house in an Adelaide suburb, the appellant removed the male victim from the car boot and assaulted him in the kitchen. He demanded that the victim pay him $4,000 on account of an alleged drug debt. While the male victim was detained at the house by an accomplice of the appellant, the latter demanded that the female victim drive him to a place where she was to steal drugs or money. She managed to escape and ultimately the police intervened.
Doyle J (with whom Vanstone and Kelly JJ agreed) stated that the appellant’s offending was serious. It was planned, premeditated, violent and occurred over an extended period of time. There had been numerous opportunities for the appellant to cease offending, none of which he took. In the view of Doyle J, the sentencing judge had aptly described the offending as involving an “unfathomable, unrestrained and sustained” episode that was out of all proportion to the perceived drug debt. The offending would have long term deleterious effects on the victims. Counsel for the appellant advanced little by way of explanation other than that the offending seems to have stemmed from an amphetamine dependency.
This Court upheld the appeal in Siviour on the ground that the sentencing judge had failed to articulate any reasons for not giving the full discount for guilty pleas in respect of some of the offences. The appellant had pleaded guilty to offences of aggravated serious criminal trespass (which carries a maximum penalty of life imprisonment), kidnapping (20 years), aggravated blackmail (20 years), false imprisonment (sentence at large), theft (10 years), three counts of aggravated assault (four years) and assault (two years). The appellant was aged 29 years with a criminal record that was barely relevant save for one dishonesty offence committed some three years earlier when a sentence of nine months imprisonment was suspended. He had a consistent employment history.
Doyle J (with whom Vanstone and Kelly JJ agreed) on appeal fixed the starting point for the kidnapping offence at imprisonment for six years but after applying a 20% reduction for the guilty plea, a sentence of four years and 10 months imprisonment was imposed. His Honour fixed a notional head sentence of three years imprisonment for the aggravated serious criminal trespass which after applying a 10% reduction resulted in a sentence of imprisonment for two years and nine months. A sentence of five months and two weeks (after a 10% reduction from six months) for the theft offence was made concurrent with that for the aggravated serious criminal trespass. The starting point for the sentences for each of the three assault offences against the male victim was set at ten months but that was reduced to nine months on one count and eight months on the other two counts after different discounts for guilty pleas. These sentences were made concurrent with that for the kidnapping offence.
The starting point for the sentence for the false imprisonment of the female victim was four years which was reduced by 10% to imprisonment for three years and eight months. A sentence of six months, reduced by 10% to five months two weeks, was fixed for the aggravated assault on the female victim which involved a threat to Taser her. The aggravated blackmail attracted a starting point sentence of two years which was reduced by 10% to one year and ten months. The offences against the female victim were ordered to be served concurrently resulting in an overall sentence for those offences of three years and eight months.
Thus the starting point for the new sentences imposed on appeal was imprisonment for 13 years. After adjustment for the guilty pleas, the total of the new head sentences was 11 years and three months imprisonment with a non-parole period of six years and six months.
In arriving at those sentences Doyle J stated that the full extent of the offending was probably not planned or premeditated but significant aspects of it were. His Honour also considered it relevant that the entirety of the offending was directed towards the objective of securing repayment of an alleged drug debt.
The appellant also referred to the sentencing remarks of Chief Judge Muecke in R v Stephen John Forbes published on 7 August 2015.[2] The defendant had pleaded guilty to an aggravated offence of causing harm to a person intending to cause that harm. That offence carried a maximum penalty of imprisonment for 13 years. The defendant was entitled to a discount of 30% on his sentence due to his early guilty plea.
[2] DCCRM 15-1418 and 15-340.
The starting point of the sentence imposed by the former Chief Judge was imprisonment for four years. Due to the guilty plea, that was reduced to imprisonment for two years and ten months. A further sentence of six months imprisonment was imposed for breach of a bail agreement with that reduced to imprisonment for four months on account of the defendant’s guilty plea. These sentences were to be served cumulatively. The non-parole period was fixed at one year and six months. The head sentences and the non-parole period were both reduced by two months in recognition of the time spent in custody and on home detention bail. The result was total head sentences of three years imprisonment with a non-parole period of one year and four months.
The defendant in Forbes had met the victim on Facebook. That led to a three month relationship but without the defendant and victim living together. When the relationship ended the victim told the defendant not to contact her. Nevertheless, he was permitted to attend a family gathering at her house. Sometime after all the guests had left and the victim was about to go to bed the defendant knocked on her front door. He walked in, slammed the door then punched the victim in the face. He hit her repeatedly and dragged her between rooms by her hair. He also banged her head against a brick wall and stamped on her body as she lay on the floor. He held a knife to her throat and threatened to kill her and himself while making several small cuts to her skin. The defendant then told the victim to pull her pants down and said that he was going to cut her “down below” but did not do so. After suggesting that the defendant have a cigarette and calm down the victim managed to escape from the house.
A psychologist’s report established that the defendant in Forbes had alcohol and cannabis addiction problems and suffered from anxiety and depression. He had been attending counselling sessions with the Aboriginal Sobriety Group and was reported to have made excellent progress.
In light of the sentences imposed in Siviour and in Forbes the appellant submits that the starting point of imprisonment for 15 years was simply too high, even having regard to the terrifying nature of the offending. He contends that her Honour gave excessive weight to the aggravating features of the offending. He further submits that the sentence, and more particularly the non-parole period, did not sufficiently reflect his lack of a criminal record and his good work history.
The respondent’s submissions
The respondent submits that the sentence is not manifestly excessive. There was no error on the part of the sentencing judge that might suggest that her Honour’s discretion miscarried. She took into account all relevant matters and did not take into account any irrelevant matters or make any mistake of law or fact.
Discussion
Grounds 3 and 4 in the Notice of Appeal complain that the judge had inadequate regard to matters personal to the appellant and placed too much weight on the need for general and personal deterrence.
The Chief Justice held in Police v Chilton that: [3]
It is not an appellable error, in accordance with the principle in House v The King that a sentencing Judge has placed too little or too much weight on one or more of the applicable sentencing considerations. It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways.
[3] (2014) 120 SASR 32 at [17].
Vanstone J and I adopted and applied that observation in R v Lutze.[4] Accordingly, the complaints of inadequate weight and excessive weight do not amount to an appellable error and cannot succeed.
[4] (2014) 121 SASR 144 at [40]-[47] and [51].
The sentencing judge took into account all relevant matters personal to the appellant. Those matters included the fact that he had not previously been convicted, his age and work history and his statement that he felt remorse. Her Honour also had regard to the reports provided by Dr Jennings and by Dr White. These subjective considerations were weighed by the judge against the objective circumstances of the offending. There was no process error. I would dismiss ground 3 and ground 4 of the Notice of Appeal.
The complaints in ground 1 and ground 2 are respectively that the head sentence was manifestly excessive and that the non-parole period was manifestly excessive. However, counsel for the appellant submitted that the judge had dealt appropriately with the breach of the intervention order.
The two most serious offences committed by the appellant were the aggravated serious criminal trespass in a place of residence and the aggravated kidnapping. They respectively attract maximum penalties of life imprisonment and 25 years imprisonment. The nature of the conduct that gives rise to such offences can be extremely varied as this Court observed in R v Jackson in relation to kidnapping offences[5]. Thus, the sentences that might reasonably be imposed may differ greatly.
[5] [2007] SASC 332.
There are some similarities between the present case and Siviour in that both involved a deprivation of liberty over a substantial period, physical assaults and the threat of further violence. However, the strongly sexual aspect of the offending against a former domestic partner was an aggravating factor lacking in Siviour where the motivation for the offending was payment of an alleged drug debt. On that basis I do not consider that Siviour provides a reliable basis for a sentencing comparison.
I also find the sentencing remarks of the former Chief Judge in R v Stephen John Forbes to be of very little assistance for several reasons. First, and in no particular order, a sentence imposed by a judge of the District Court has limited value for comparative purposes when this Court considers an appeal against sentence. Secondly, it is possible that the personal circumstances of the defendant in Forbes may have led the Chief Judge to impose a sentence at the very lowest end of the available range. Thirdly, in this case the offences charged were more serious. The maximum penalty for the offence charged in Forbes was imprisonment for 13 years. Here one offence carried a maximum penalty of life imprisonment and another a maximum penalty of 25 years. There were also several other relatively serious offences. Finally, the offending in this matter was aggravated by a more significant sexual element combined with the calculated infliction of terror.
The sentencing judge described the circumstances of the offending as “horrendous” and also found that the conduct of the appellant “appeared to have been deliberately designed to calculate the maximum amount of terror”. Her Honour also noted that the offending was premeditated and planned. It had an enormous effect on the victim. I consider each of those observations to be entirely appropriate. There was also a significant sexual element to the offending. In light of these considerations, while having regard to the appellant’s personal circumstances, I consider that the sentence is within the range available to the judge. The sentence is not manifestly excessive. I would dismiss the appeal on ground 1.
The non-parole period of six years was about 54% of the head sentence of 11 years and one month. I reject the submission that the non-parole period did not sufficiently reflect the appellant’s lack of a criminal record and his good work history. The judge specifically took those matters into account but also considered the serious nature of the offending, the concerns about the appellant’s rehabilitation and community safety. I do not consider the non-parole period to be manifestly excessive. I would dismiss the appeal on ground 2.
Conclusion
I would dismiss the appeal on all four grounds.