Sluggett v The King - [2024] NTCCA 6

CITATION:Sluggett v The King [2024] NTCCA 6
PARTIES:SLUGGETT, Shane
v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 10 of 2023 (22131037)
DELIVERED:  17 April 2024
HEARING DATE:  16 April 2024
JUDGMENT OF:  Grant CJ, Brownhill and Riley JJ
CATCHWORDS:

CRIME – Appeals – Appeal against sentence – Misapplication of principle – Manifest inadequacy
Whether sentencing Judge erred in taking into account decision in The Queen v Nabegeyo (2014) 34 NTLR 154 – Nabegeyo concerned standards of punishment for offence of sexual intercourse without consent involving highly intoxicated and/or sleeping victims – Nabegeyo useful yardstick against which to examine appropriate sentence – Whether sentence manifestly excessive – Sentence of imprisonment for five years and eight months not manifestly excessive – Not so far outside range as to bespeak error – Sentencing Judge took into account objective circumstances and relevant subjective circumstances – Applications dismissed.

Criminal Code 1983 (NT) s 192

Barbaro v The Queen (2014) 253 CLR 58, BM v The Queen [2023] NSWCCA 68, Forrest v The Queen [2017] NTCCA 5, Ibbs v The Queen (1987) 163 CLR 447, The Queen v Kilic (2016) 259 CLR 256, The Queen v Nabegeyo (2014) 34 NTLR 154, referred to.
REPRESENTATION:
Counsel
Applicant:JCA Tippett KC
Respondent:  LJ Auld
Solicitors
Applicant:Maleys Barristers & Solicitors
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  7

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Sluggett v The King [2024] NTCCA 6

CA 10 of 2023 (22131037)
BETWEEN:

SHANE SLUGGETT
Applicant

AND:

THE KING
Respondent

CORAM: GRANT CJ, BROWNHILL & RILEY JJ
REASONS FOR JUDGMENT
(Delivered on 17 April 2024)
THE COURT:

After a trial, a jury found the applicant guilty of one count of sexual intercourse without consent contrary to s 192(3) of the Criminal Code 1983 (NT).
The circumstances of the offending
The circumstances of the offending were that the applicant, who was 50 years old, and the victim, who was 31, had been friends for about a year. The applicant and his partner had a party at their home and the victim attended. She became significantly intoxicated, to the point where she needed help walking. The applicant and another person helped the victim to the spare room and put her to bed, where she fell asleep. Some hours later, the applicant went into the spare bedroom. He inserted at least one finger into the victim’s vagina, digitally penetrating her vagina whilst stimulating her clitoris with his thumb. This lasted for at least some minutes. The victim thought she was being stimulated by her boyfriend and became aroused. When she woke up and saw the applicant, she was shocked and left. The applicant knew the victim was asleep and therefore could not and did not consent. The victim suffered Post Traumatic Stress Disorder as a consequence of the offending, requiring medication and counselling. The offending detrimentally affected the victim’s sexual relations with her long-term partner.
The sentence
As he was convicted at trial, the applicant was not entitled to any discount on the sentence for a plea of guilty and remorse. As to remorse, the sentencing Judge found that, during an interview with Police, the applicant had attempted to shift blame towards an innocent man. In addition, he gave evidence at the trial denying that the offending occurred, and also told Police and gave evidence that, if there was any touching of the victim by him, this occurred when he tried to reposition the victim from an uncomfortable position on the bed. The jury clearly rejected the applicant’s account. The sentencing Judge found the applicant had no remorse for the offending.
The applicant had no relevant criminal history and, as the sentencing Judge observed, was sentenced on the basis that he was a first offender, he was a willing and hard-working employee, he had excellent work and personal references and this conduct was out of character for him.
The applicant was sentenced to imprisonment for five years and eight months, with a non-parole period of four years. At the time, the mandatory minimum non-parole period for this offence was 70% of the head sentence, and the non-parole period was fixed in the minimum term.
The proposed grounds of appeal
The applicant has now made an application for an extension of time within which to apply for leave to appeal, together with an application for leave to appeal. The proposed grounds of appeal are: (1) the sentencing Judge erred in crafting a sentence on the basis of the observations made in the decision of the Court of Criminal Appeal in The Queen v Nabegeyo (2014) 34 NTLR 154; and (2) in all the circumstances the sentence imposed was manifestly excessive.
Misapplication of authority
In relation to proposed appeal ground 1, we consider there was no error in the sentencing Judge’s reference to and reliance on The Queen v Nabegeyo.
That was a decision of the Court of Criminal Appeal in a Crown appeal against sentence on the basis of manifest inadequacy, resulting in the offender being re-sentenced. Such appeals are for the purpose of laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons (see Green v The Queen (2011) 244 CLR 462 at [1]). The Nabegeyo appeal was expressly about the standards of punishment for the offence of sexual intercourse without consent in cases involving highly intoxicated and/or sleeping victims who are extremely vulnerable to sexual assault (see [2]).
The propriety of taking the decision in Nabegeyo into account is confirmed by the reference to it as a relevant decision by the applicant’s counsel in their submissions on sentence.
The sentencing Judge’s reference to and reliance on Nabegeyo was, properly, as a useful yardstick against which to examine a proposed sentence to be imposed on the applicant (see Barbaro v The Queen (2014) 253 CLR 58 at [41]).
Contrary to the applicant’s submissions, the sentencing Judge did not ‘craft’ the applicant’s sentence around the decision in Nabegeyo in an improper way. His Honour took into account the objective and subjective factors relevant to the sentencing exercise of the applicant’s individual case, expressly noting that ‘every case of sexual intercourse without consent must be assessed on its own facts’. No specific error is apparent from the sentencing Judge’s reference to Nabegeyo, and the applicant’s submission in this respect resolves to an assertion that Nabegeyo involved more serious offending and provides support for the conclusion that the sentence imposed in this case was manifestly excessive.
Proposed ground 1 has no merit.
Manifest excess
In relation to proposed ground 2, the sentence of five years and eight months is not manifestly excessive. It is not so far outside the range of a reasonable discretionary judgment as to itself bespeak error. Two particular matters must be noted in that respect.
First, the head sentence of five years and eight months would have been reduced to four years and three months had the applicant pleaded guilty and taken the benefit of the discount ordinarily applied in those circumstances. That term after the notional discount cannot be characterised as manifestly excessive having regard to the established sentencing standards for this category of offence.
Secondly, the fact that the penetration in this case was digital-vaginal rather than a penile-vaginal does not necessarily demand a lower sentence. There is the one maximum penalty for the offence of sexual intercourse without consent. It should not be supposed that for the purposes of punishment one means of penetration is more heinous than another (see Ibbs v The Queen (1987) 163 CLR 447 at 452). Although offences of digital penetration will often be less serious than penile-vaginal intercourse without consent, that will depend on the circumstances (see BM v The Queen [2023] NSWCCA 68 at [50]-[53]). The relevant considerations will remain the nature and degree of the invasion of the victim’s bodily integrity, any breach of trust involved and the impact on the victim.
We do not accept the applicant’s submission that the sentencing range for offences of sexual intercourse without consent involving digital penetration, in which breach of trust and significant adverse psychological consequences for the victim are aggravating features, is imprisonment of between two and a half to four years (as put in writing) or five years (as put orally at the hearing). That range was put on the basis of sentences imposed in nine other cases.
We do not accept that those cases provide a proper foundation for the determination of such a range, because:
(a)six of the nine cases are from 2003 to 2012, meaning they are not contemporary, when it is well recognised that courts now have a better understanding of the long-term harm done to the victims of sexual offending than they had in the past (see The Queen v Kilic (2016) 259 CLR 256 at [21]);
(b)two of the nine cases involved offences for which the maximum penalty operating at the time was imprisonment for seven years, whereas the maximum penalty for the applicant’s offence is life imprisonment; and
(c)cases involving the offence of sexual intercourse without consent against adults are particularly fact-sensitive, making the identification of a specific range or standard difficult (see Forrest v The Queen [2017] NTCCA 5 at [102]).
Even if it were to be accepted that the applicant’s sentence is markedly different from other sentences imposed in other cases (which is not our view), we are not satisfied that the difference is such that there must have been some misapplication of principle. We are of the view that, when the sentencing remarks are read as a whole, the sentencing Judge properly took into account both the objective circumstances and seriousness of the offence and all relevant subjective circumstances of the applicant, including his prospects of rehabilitation and that he is a person unlikely to reoffend.
Proposed ground 2 has no merit.
Order
The applications for an extension of time and for leave to appeal are dismissed.

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